Archive for June, 2019

The Mueller Report: I read it for you, but you should read it for yourself. pt. 6

June 29, 2019

The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials

 

This part of Volume II of the Mueller Report relates more closely to the subject matter of Volume I than the other sections we have examined. Russian agents, closely tied to Vladimir Putin though not officially part of his government, approached the Donald Trump Jr. at a time when his father was the presumptive Republican nominee for President of the United States, offering him derogatory information about Hillary Clinton as part of what they described as the Russian government’s efforts to help Mr. Trump win the general election. Some of the highest level campaign workers, including Don Jr. agreed to meet in Trump Tower with these self-professed Russian agents. Don Jr. later said he had expected different information from the Russians than he received, supposedly indicating financial corruption which apparently didn’t exist given that such evidence wasn’t produced, though it remains unclear whether Don Jr. realized then or now that there was no such corruption. Apparently there was no direct discussion at this meeting of the fact that the Russians had hacked the DNC computers and were preparing to selectively release emails that would embarrass the Clinton campaign and enrage Bernie Sanders followers. Instead, after being a bit vague about what they were offering, the Russians made clear what they wanted in return for their help: relief from the Magnitsky Act, a set of sanctions imposed by the Obama administration on Russian oligarchs connected to such crimes as murder, money laundering, and the illegal seizure of Crimea from Ukraine. While Don Jr. claimed that nothing came of the meeting, shortly after this the Russians began feeding DNC emails to WikiLeaks.

A year later, after his election, Mr. Trump learned that there were emails detailing the involvement of his son, his son-in-law Jared Kushner, his then campaign manager and others in this clandestine meeting with Putin’s emissaries, including the Russians’ statement that they were acting on their government’s behalf to help Trump win and his son’s reply “If it’s what you say, I love it.” According to Mr. Trump’s written statements, he had no knowledge at the time about the meeting; he has refused to answer questions in person. At this time the meeting was being investigated as part of the FBI Russia investigation, and had in fact provided requested information including these emails. However, Mr. Trump actively sought to hide this information from the press, the American people and even from himself. For example, when Hope Hicks sought to discuss the emails with him because she thought they looked “really bad,” he replied each time that he didn’t want to know the details. While he knowingly dictated a false explanation to The New York Times about the nature of the meeting, he sought to avoid having anyone discuss the true nature of the meeting with the press, or with he himself as part of planning his press strategy. Despite warnings from Hicks and others that the actual facts would eventually leak, Trump insisted that if they just kept mum the existence of the emails would never be known and the whole thing would blow over. Discussion between Hicks, Trump and then White House spokesperson Mark Corallo of Corallo’s attempts to plant a false narrative on a conservative news site included discussion of the fact that a “document” existed which would contradict the statement Trump had written for his son to deliver about the meeting, and the belief that its existence would never get out. Eventually, the emails did leak, Trump Jr. followed Ms. Hicks’ original advice to simply release the emails and weather the storm, and the President stated that it didn’t matter because his false explanation had been given to the Times and not to “a high tribunal of judges.”

All of this certainly fits the common dictionary definition of “collusion,” meaning “a secret cooperation or deceitful agreement in order to deceive others, although not necessarily illegal.” There was the Russian government’s stated intention to help Mr. Trump win the election, efforts made on both sides to hide knowledge of this support from the public, and Russia’s stated desire to “discuss” the sanctions imposed under the Magnitsky Act. But as stated in our summary of Volume One of the Special Counsel’s report, Mueller did not feel this meeting rose to the level of criminal conspiracy, or at least he states he did not think there was evidence to prove it did. Likewise, the later claims by Trump that “I don’t do cover-ups” is clearly false, and he himself said as much. To determine whether this incident constitutes obstruction of justice, the three constitutive elements need to be considered:

  1. Obstructive Act: Mueller finds at least three instances where Mr. Trump ordered others to deny the existence of the emails about the Trump Tower meeting, and actively participated in giving false information to the press. However, Mr. Mueller notes that there is no evidence that Mr. Trump or the White House actually sought to hide the documents or the information from Congress or the Special Counsel. Instead, the stonewalling and deceit “occurred in the context of developing a press strategy,” and as Mr. Trump observed himself, lying to the press, or the American people, is not a crime.
  2. Nexus to an official proceeding: Since the information was provided to the official investigative offices which requested it, and the natural result of keeping the emails from the public was not likely to impede a grand jury or other investigation, there is no nexus.
  3. Intent: The intent was to stonewall the press, and thus prevent the public from finding out the truth about the Trump Tower meeting, as the fact that the Russian government and Trump’s own family and campaign staff were meeting together to strategize how to help him get elected would look “really bad.” However, there is no evidence that there was any intent to hide this meeting from any official scrutiny.

Thus, Mr. Mueller concludes that the actions to hide the Trump Tower meeting from the public were not themselves obstruction of justice. While there was clearly an intention to lie to the press and to voters, and while it is clear that the Trumps were well aware of and eager for Russian help winning the election, and that they were willing to cooperate with Russia to some degree, Mueller decided that none of this can be proven to violate U.S. law. While it may be embarrassing for all concerned (esp. American citizens) to admit that the President of the United States was elected with the active assistance of a hostile foreign power, and that he, his family and his advisors were aware of this and were only concerned that it might become public knowledge, the attempt to hide this was not in fact “obstruction of justice” so long as the cover-up only involved lying to the press.

Advertisements

The Mueller Report: I read it for you, but you should read it for yourself. pt 5

June 26, 2019

The President’s Efforts to Curtail the Special Counsel Investigation

We may never know why Mr. Trump ordered Mueller to be fired, then changed his mind. Did he give the order in a fit of temper and either reconsider or lose interest once he’d calmed down a bit? Was he eventually persuaded that his concerns about conflicts of interest were so flimsy they would only embarrass him if he kept pushing them? Does he in fact have so little attention span that he simply forgot, as some books have suggested? Or did he decide that derailing Mueller’s investigation would work better than sacking him? Perhaps an impeachment inquiry or criminal prosecution after he leaves office will reveal more, if Mr. Trump is compelled to testify under oath. What we do know, however, is that the efforts to shut down the investigation were not limited to trying to get rid of the chief investigator.

Two days after McGahn refused to order Rosenstein to fire Mueller, Mr. Trump ordered Corey Lewandowski to take a message to Jeff Sessions ordering him to unrecuse himself and take charge of the investigation. The idea was not to simply shut it down, but rather to forbid the FBI from actually investigating any crimes; instead they were to only look at what the Russians had done and how to prevent them from doing it again, without considering whether Trump or anyone else had committed any crimes. This was unusual since Lewandowski had no government position and hence had no real reason to be carrying instructions or memos between the White House and the Department of Justice, aside from the fact that he was known for being utterly loyal to Mr. Trump and hence perhaps more likely to do as he was told. Trump dictated a letter to Sessions stating that Sessions was to announce that since the President was being treated very unfairly, he had decided to unrecuse himself; furthermore, unless Sessions made this statement as dictated and restricted the investigation as instructed, he would be fired. Lewandowski decided that, given the sensitive nature of this message, he should hand it to Sessions in person; but after several unsuccessful attempts to arrange a meeting where he could do so, he decided to give the memo to Rick Dearborn, a senior White House official who had a dinner appointment with Sessions. Lewandowski says that while he thought Trump had tasked him with delivering this message because of his loyalty, Dearborn would be able to do it better because he actually did work for the government and had a long relationship with Sessions. However, when Dearborn saw the message he was to deliver, he became extremely uncomfortable and did not deliver it; although he said he had “handled the situation” he in fact refused to deliver the message and instead threw it away. At this same time Mr. Trump, not knowing the speech he intended Sessions to deliver had not been passed to him, called an impromptu news conference to talk about how “unfair” it was for Sessions to recuse himself from the Russia probe, and to state that Sessions might not be allowed to continue as Attorney General. Trump followed this up by demanding that Reince Priebus, his Chief of Staff at the time, fire Sessions. Ostensibly this was because Sessions had falsely denied discussing campaign-related matters with the Russian ambassador, but those around him believed the real reason was what Trump had been saying for months: his anger over Sessions’ recusal from the Russia investigation. Priebus resisted, and when Trump insisted Priebus lied and said he’d get Sessions to resign even though he had no such intention. Eventually he was able to convince Trump that if they fired Sessions the second and third ranking people at DOJ, Rosenstein and Rachel Brand, would also resign, and that he would be unable to get anyone confirmed by the Senate to replace them.

The testimony given under oath to Mueller paints a picture of chaos and dread. Hope Hicks said she wanted to “throw herself” between Trump and the press during his July 19 interview lambasting Sessions, but he loved it and loved the coverage it got afterwards. Priebus and McGahn discussed resigning rather than go along with the plan to fire Sessions. Sessions wrote out another letter of resignation and carried it with him whenever he went to the White House after these events. Again, the only thing that prevented a major Constitutional breakdown, with possibly the entire leadership of the Department of Justice resigning , was the refusal of Trump’s underlings to obey orders they thought were “all wrong.” At times they lied and stalled until his temper cooled down, other times they kept trying to talk him out of whatever self-destructive, government-destructive action he was demanding. The whole time he seems to have been loving the press coverage his attacks on Sessions were getting, and his major concern was to time his actions so as to avoid bad coverage during the Sunday news programs.

In considering whether Trump’s efforts to have Lewandowski deliver an ultimatum that he either rein in the Mueller investigation or be fired, the Special Counsel considered the following elements:

  1. Obstructive act: Would these actions naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry? Undoubtedly; Mueller writes that “Taken together, the President’s directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign…” so the entire point of the President’s actions was to obstruct the investigation.
  2. Nexus to an official proceeding: It was public knowledge that there was already a grand jury investigation of the Trump campaign by this time. We don’t know too much about that because this part of the report is redacted.
  3. Intent: Mueller writes: “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.” Or to put it bluntly: Trump was trying to cover up his own past misdeeds and those of his employees. In particular, Mueller notes that Trump sought to use Lewandowski, someone outside the government who was known to be extremely loyal, to communicate with Sessions, rather than simply talk to him directly or use normal government channels, suggesting that Trump was trying to hide his message to Sessions and to avoid any official record of having communicated with him at all. And it might have worked, if Lewandowski had managed to deliver the message himself instead of passing it to Dearborn to deliver. Dearborn was so freaked out when he read the message he was supposed to pass on that “he recalled not wanting to ask where it came from or think further about doing anything with it,” and instead lied about delivering it and instead trashed it.

Legal experts agree that the fact that Trump failed to obstruct justice because his staff refused to cooperate (or in the case of Lewandoski bungled the job) does not make it any less a crime, just as we routinely throw terrorists in jail for planning bombing attacks on this nation even when they end up talking to an FBI informant instead.

The Mueller Report: I read it for you, but you should read it yourself. pt. 4

June 26, 2019

The President’s Efforts to Remove the Special Counsel

Of all the consequences of firing Director Comey, the worst from Trump’s perspective was the appointment of a Special Counsel to lead the investigation into Russian subversion of our electoral process. This was, of course, inevitable, given the gravity of the question of the integrity of our elections, the lack of trust most Americans had that the President would address the problem in an honest and impartial manner, the deep concerns of most of the nation’s law enforcement and counterintelligence agencies, and the fact that almost everyone else was either a potential suspect or a witness at this point. This was totally predictable and unavoidable in the view of anyone with any political sense or understanding of how American government works, but it caught Mr. Trump completely by surprise. The report states: “According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’” Given that Clinton survived a Special Prosecutor with far more sweeping powers and far less neutrality than Mueller had, this seems rather melodramatic. He then became angry at Attorney General Sessions for not protecting him. I have to confess, I have to agree to a point, given that Sessions apparently recommended firing Comey and the appointment of a Special Prosecutor to take over the investigation after that was as predictable as a third Sharknado movie.   Several witnesses report that Trump was in a rage, and he demanded Sessions resign. Sessions agreed, wrote out his resignation letter and handed it to Trump. Trump decided let Sessions stay as AG, but refused to return the letter until other advisors pressured him over several days to do so.

All of this seems understandable given Mr. Trump’s well-known temper and political ignorance, and by itself not very significant. His later efforts to hit back at the Special Counsel before he even began his work, however, were more questionable. Trump began pushing for Special Counsel Mueller to be removed, alleging conflicts of interest. His own advisors told him his claims were, in Bannon’s words, “ridiculous and petty” and Department of Justice ethics officials examined the question and found no cause for concern. Despite this, Trump pressured White House Counsel McGahn to push Deputy AG Rosenstein to fire Mueller over these alleged conflicts. McGahn pushed back, telling Trump that firing Comey wasn’t even his “biggest exposure” compared to his “other contacts” and his efforts to end the Flynn investigation. The report goes on to describe increased pressure from Trump to fire Mueller, and apparent efforts by various advisors and staff to derail these efforts by leaking them to the press, refusing to cooperate and so on. McGahn even prepared to resign rather than participate in firing Mueller, though ultimately he was talked out of resigning by Steve Bannon and Reince Priebus. In the end McGahn did not resign, and Trump did not ask him the next day whether he had instructed Rosenstein to fire Mueller as Trump had wanted.

The Special Counsel considered these facts to be relevant to determining whether this behavior constitutes obstruction of justice:

  1. Obstructive Act: The report considers whether firing Mueller would have naturally delayed, chilled or otherwise impeded any further investigation. After all, firing Mueller would probably have meant he was replaced, but even so the investigation could have been crippled. Therefore, the proposed firing could have obstructed the investigation. It is also crucial to consider whether Trump actually ordered Mueller fired, or merely suggested the DOJ investigate these alleged conflicts of interest. Ultimately, the report rejects Trump’s denials that he ordered McGahn to order Rosenstein to fire Mueller; not only did it find McGahn a more credible witness than Trump with no motive to lie, but his other actions supported his story, other witnesses corroborate parts of it, and DOJ was already well aware of the allegations Trump was making and had concluded they were baseless. So Mueller’s office found Trump’s claim that he was merely making a suggestion that they look at these supposed conflicts to be unbelievable, while McGahn’s claim that Trump told him “Mueller has to go” likely true.[1] Thus we have an attempt to perform an act that would be likely to impede further investigation; this attempt was not carried out only because McGahn refused to do as ordered, and Mr. Trump was either persuaded to drop the matter or otherwise lost interest in it, as he lost interest in firing Sessions.
  2. Nexus to an official proceeding: By this time Mr. Trump knew he was under investigation; he had been warned by McGahn of his legal exposure, the Special Counsel’s office had informed the White House that they’d be interviewing witnesses to Trump’s interference in Comey’s investigation, and Trump himself tweeted that he was under investigation. Therefore, he knew there was an official investigation which could be crippled or completely derailed by firing the Special Counsel, yet he sought to do so anyway.
  3. Intent: “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked… to reports that the President was being investigated for potential obstruction of justice.” From his immediate “I’m fucked” to his pushing previously refuted allegations against Mueller and finally to his ordering Mueller be fired, it is clear that he was primarily concerned with protecting himself; and his later denials of having ordered McGahn to fire the Special Counsel suggest he knew the order could be seen as improper.

Once again, the report cites the existence of all three essential ingredients of an obstruction of justice: the act itself, the investigation to be obstructed, and the intent to do so. Mr. Trump had the desire to end the investigation and discussed “knocking out Mueller” by alleging conflicts of interest which his own people described as “silly” and “not real.” The only reason he did not “knock out Mueller” was that his own staff and advisors, realizing the enormity of his proposed actions (McGahn described it as “crazy shit”) refused to cooperate. Attempted obstruction of justice, like attempted murder, is still prosecutable; whether this act does indeed rise to the level of criminality is something that can only be determined, says Mueller, by an impeachment hearing before Congress, where all evidence can be presented and the President can offer his defense against the charges.

[1] Of course too, McGahn answered questions under oath and in person; Trump has refused to do so.

The Mueller Report: I read it for you, but you should read it yourself. pt. 3(c)

June 23, 2019

How does all of this relate to the three constitutive elements of an obstruction of justice?

  1. Obstructive Act: It is true that Mr. Trump was aware that James Comey was not only investigating Trump’s friend Michael Flynn but was also looking into other aspects of Russian efforts to help elect Trump, including whether any other American citizens had committed crimes. On the other hand, he was advised repeatedly that firing Comey would not end the investigations; as Steve Bannon told him, “You can’t fire the FBI.” Trump even acknowledged as much during his interview with Lester Holt, saying it was likely firing Comey would actually prolong the investigation. What seems to have most troubled Mueller and seems most likely to be part of an illegal obstruction of justice is the way Trump handled it. The vengefulness, the petty cruelty, and the public attacks on the investigation and cries of “Witch hunt!” afterwards seem, according to the report, intended to affect and obstruct whatever future investigators might take over after Comey’s departure. True, there might be other, legally innocent motives, such as paranoia, sadism, or stupidity. That question falls under “intent.” What we can say is that there were in fact official investigations that could be disrupted by this behavior, that Mr. Trump was aware of these investigations and continued in this behavior anyway, despite the fact that his office requires him to support upholding the laws of the nation without undue personal prejudice.
  2. Nexus to a proceeding: You can’t obstruct justice unless there’s an official proceeding to obstruct. In this case, while there was no official grand jury at that time investigating the Trump campaign, there was a criminal investigation of Flynn that Trump had tried to shut down, and public knowledge that the FBI was looking into Russian interference in the 2016 election, including the crime of hacking the DNC’s computers. Thus there was a nexus to at least one official proceeding.
  3. Intent: As the report states: “Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement….the President’s over stated rationales for why he fired Comey are not similarly supported by the evidence.” In other words, the report says that Comey was fired for not publicly clearing Trump, and that Trump and others working on his behalf lied about the true reasons for the firing. As stated earlier, intention to deceive is tacit acknowledgment of wrongdoing; if it doesn’t prove impure motives, it at least implies such. But why, the report asks, what this so important? Was it merely for political reasons, because “this Russia business” was making it difficult for Trump to carry out his agenda for the nation? Was it because, as has been stated outside the Mueller but in multiple press reports and books, that Mr. Trump gets angry when anyone mentions that Russia helped elect him because it takes away from his own sense of accomplishment? Or are there other, criminal reasons for Trump’s repeated demands for Comey to publicly announce his innocence? There are the demands that Comey pledge his “loyalty” to Trump personally, and his claim that he thought the Attorney General was not doing enough to protect him personally. He also said he wanted to be able to tell his Attorney General “who to investigate.” Comey was interfering with these goals by the fact that he’d taken over the investigations after Sessions recused himself, and by the independent way he was handling the investigations. Also, when Trump was railing against Sessions for recusing himself and for not doing more to protect Trump and punish Trump’s foes, Sessions had suggested firing Comey, either because he was suggesting to Mr. Trump that this would solve his problems or perhaps merely to redirect Trump’s anger onto someone else. In addition, as the Muller report states, “…the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.” Thus there is a strong prima facie case that Trump was motivated by personal goals rather than national interests in firing Comey, the definition of “corrupt intent.”

As Mr. Mueller stated, we need to have some sort of a hearing to allow the accused party the chance to clear his name. Legally, there is no law against being stupid, sadistic, deceitful, vain, vindictive, paranoid or obstinate. These may be reasons to say someone is unfit for an important office, but they are not crimes. Perhaps Mr. Trump was not trying to shut down or intimidate other investigations, and anyone or everyone around him who might think about challenging his orders. Perhaps he was just running the White House the way he’d run his businesses: as his wife says, if he feels you’ve hit him he’ll hit back ten times harder.[1] Perhaps, as many who have or do work for him are reported to have said, he’s very insecure about his election victory, and his desire to have Comey and others come out and publicly say he had nothing to do with Russia is his way of insisting that he won on his own, without Putin’s help, despite what Putin said at Helsinki and what every U.S. intelligence agency has said. But as Mueller said, the only way to bring these facts out, and show whether or not Trump had corrupt motives or simply acted foolishly in ways that appear corrupt, is to have an impeachment investigation, where all the facts can be presented and the President can take the opportunity to personally defend himself under oath. As it stands, the report states, there is evidence that the President* knowingly and intentionally obstructed justice, seeking to impede and influence official investigations of crimes as well as undermining counterintelligence operations, for corrupt personal reasons.

[1] Ali Vitali, “Melania Stumps for Donald Trump: ‘He Will Punch Back 10 Times Harder;” NBC News.com April 4, 2016 (https://www.nbcnews.com/politics/2016-election/melania-stumps-donald-trump-he-will-punch-back-10-times-n550641). Or as Mr. Trump says on Twitter: “When someone attacks me, I always attack back…except 100x more. This has nothing to do with a tirade but rather, a way of life!” @realDonaldTrump Twitter 11 Nov. 2012. These claims, I believe, fit the dictionary definitions of “vindictive” and “vengeful.”

 

The Mueller Report: I read it for you, but you should read it yourself. pt. 3(b)

June 21, 2019

As we’ve seen before, Donald Trump was intensely concerned, if not absolutely fixated on getting James Comey and everyone else to proclaim publicly that he was not under investigation, even if government ethics and legal advisors said no such statement should be made before the investigation concluded. He also repeatedly stated that the job of the Attorney General is to protect him from investigation and scandal, to investigate whomever he wants investigated and to not investigate anyone he doesn’t wish investigated. As the FBI investigation into Michael Flynn unfolded, Trump became increasingly concerned that he might be publicly implicated and increasingly active to try to control the investigation and the public perception of it. The investigation into Flynn not only led to probable obstruction of justice (I say “probable” because there has been no impeachment inquiry to determine one way or the other) but also to further possible crimes by the Trump election and transition teams, aimed at suppressing investigation of improper assistance from Russia and improper promises made to Russia. Eventually even the Republican-led Senate Judiciary Committee decided they had to see what Comey had to say about these matters. Trump told his advisors this was Comey’s “last chance” to publicly clear him. However, Comey refused to say who was or wasn’t under investigation, citing FBI policy not to comment on ongoing investigations. This infuriated Trump, initially at Sessions for not protecting him more. Sessions then seems to have suggested firing Comey as a way to deflect Mr. Trump’s ire. Trump then decided to get rid of Comey, despite being advised by Steve Bannon that this was a bad idea and that it would not end the investigations.

Trump initially drafted a letter firing Comey, mentioning that Comey had privately told him he was not under investigation but still saying he was a failure. His advisors urged him to let Comey resign, but Trump was determined to fire and humiliate him. They then decided that the reasons Trump gave for wanting to fire Comey in the draft letter he’d prepared were not good enough and might look suspicious, so they decided to have Rod Rosenstein write a “recommendation” that Comey be fired for other reasons, including his handling of the investigation of Hillary Clinton’s emails. They decided to use Rosenstein’s draft as the justification for firing Comey even though everyone knew those weren’t the real reasons, to give Trump cover. The only major contribution Trump made to the second letter was to insist it say something about Comey having told him he wasn’t under investigation.

Despite the pretext provided by Rosenstein, the firing of Comey was received badly by the press. After all, Trump had himself endorsed Comey despite knowing previously about his treatment of Clinton and even praising him for it. The other major claim, that Comey had lost the faith of his people at the FBI, was demonstrably false, as quickly seen in the negative reactions to news of Comey’s firing. Furthermore, there was something curiously vindictive about Trump’s actions. Normally, someone in Comey’s position would be allowed to resign; instead, he was fired with no warning, finding out while giving a public speech. Furthermore, Trump was furious that he was allowed to fly back to DC instead of being stranded in California where he had been speaking to new FBI recruits, and further sought to prevent Comey from entering the FBI building even to remove his own personal possessions. This is not how normal people treat employees who haven’t worked out on the job. This is how you treat people you personally hate, The only reasonable explanation is that Trump was trying to make things as humiliating and painful as possible for Comey, either out of vengefulness or to send a message to all other present and future government officials that he would do the same to them if he wished.

The White House story regarding the firing of James Comey quickly fell apart. Sarah Huckabee Sanders was one of a platoon of Republican voices claiming that Comey was distrusted by his colleagues and that most were glad to see him gone; however, these claims were, to put it politely, “without foundation” by her own admission under oath. The claim that Comey was fired for treating Clinton unfairly was laughable, given that Trump had benefited from this, that he had supported Comey in the job for several months while knowing all about this, and furthermore that Comey had been fired not as soon as Trump had the right and power to do so but only after he began investigating Republican actions. When the decision was made to shove Rod Rosenstein out in front of the cameras to tell the world that it was he, and not Mr. Trump who had initially thought Comey should be fired, Rosenstein refused, since it was a lie and he knew it, and furthermore he did not want to be the one seen to be responsible. White House Counsel Don McGahn and the White House Counsel’s office agreed that the White House was creating a false narrative by claiming Rosenstein had initiated the firing, and that it was necessary to set the record straight. The fact that the cover story wasn’t working, coupled with this legal advice, seems to be why Mr. Trump gave the now-famous interview with Lester Holt, wherein he affirmed that he had decided to fire Comey regardless of what was recommended “because of this Russia thing” which was “made-up.”

To be continued….

The Mueller Report in less than 30 minutes: no more reading required!

June 19, 2019

I’ve been summarizing the Mueller report for people who don’t want to read it for themselves.  However, for those who don’t want to read AT ALL, PBS has a deal for you!  Here’s a video with the facts of the Mueller Report.  Watch this and in 30 minutes you might be more qualified to discuss the report than your congressional representatives.  Click here for video

The Mueller Report: I read it for you, but you should read it yourself. pt. 3(a)

June 18, 2019
  1. The Firing of FBI Director James Comey

Often in stories there’s a point where things go from maybe bad to major crisis in an instant. If we read the Mueller Report as a political novel, the turning point is the firing of James Comey. Prior to this, many of the characters seemed to think that while the President of the United States was breaking the law, maybe he was just such a novice, so insecure and so used to instant gratification that he just didn’t understand the significance of his actions. He seems to have approached the Flynn investigation like the town millionaire in an old TV show saying to the local sheriff, “I know my boy shouldn’t have been driving so fast and maybe he’d had a few beers, but how about I pay the hospital costs for the old lady and you let it slide. After all, he’s basically a good boy. Say, how’s your reelection campaign coming?” Yes, it’s sleazy; but it’s the sort of corruption of and by the rich that we all always sort of knew went on anyway. The boss wanted to get his favorite Yes Man out of trouble. Is that the end of the world? The White House efforts to get the FBI, CIA or anyone to say publicly that Mr. Trump was definitely totally not being investigated also seem like heavy-handed elitism in action, like someone who is getting carried away with his image and an army of sycophants and fixers trying to satisfy him; but again, while the report indicates they likely broke the law, it’s not like they broke the legal system itself. In fact, if the Flynn incident reminds me of the bullying millionaire in Perry Mason episode trying to bend the town to his will, the reaction to the public confirmation of the existence of an FBI investigation seems more like an old-timey Hollywood diva in some drama, or maybe real life, who’s terrified of being linked to scandal rightly or wrongly, and goes so far to try to squelch the story that she or he ends up actually making things worse. Again, not good, but nothing we haven’t survived before.

The Comey firing changed everything. It is impossible to overstate this, from a political or literary perspective. Politically, we need only look at the reaction at the time. People with decades of experience in national security and law enforcement, who had served both Republican and Democratic administrations with dedication and distinction, were so shocked by the unprecedented audacity and destructive nature of Trump’s actions that they seriously believed, and still do believe that the president of the United States might be an agent of a foreign government, or at least a complete dupe and puppet. It has been credibly reported that there was serious examination of the Constitutional options for removing him from power before he could do irreparable harm to the nation or possibly end it.[1] People who know more than you do, more than I do, who have spent their lives looking at these sorts of matters and who have the training and personality to be far less partisan than you or I, looked at President Donald Trump and how he acted in his firing of the director of the FBI and thought it more likely than not that he is either a mole or a dupe, a willing or unwitting Russian intelligence asset, and considered whether it would be possible to legally and Constitutionally remove him and replace him with Vice President Pence, lest he should betray the nation to its enemies and possibly destroy it. People who compare Trump to Nixon are unfair to Nixon; even in the midst of the Watergate investigation, no one really thought Nixon was working for the Russians. Nixon could go to China because even people who thought he was neurotic, paranoid, racist and a lawbreaker conceded that he was an American who truly put “America first” in the good sense, in the sense that he would not knowingly weaken the nation for his own profit or put another nation’s interests over our own. People who know more than we do about what’s going on in our government today do wonder, seriously worry that the occupant of 1600 Pennsylvania Avenue is either being bribed, blackmailed, or simply so disloyal to the nation that he is willing to sacrifice us at the behest of Russia, and possibly other authoritarian governments. If this were a horror movie, this is the point where the hillbillies go from vaguely threatening talk to firing up the chainsaws. This is the point in the story where we go from “The president broke the law” to “the president is breaking America.”

 

To be continued….

[1] Maureen Groppe, “What to Know about the 25th Amendment: It

s never been used, but ex-FBI head says officials thought about it;USA Today updated Feb 14, 2019 (https://www.usatoday.com/story/news/politics/2018/09/05/could-25th-amendment-used-remove-trump-office/1012979001/

Natural Law in an Age of Nihilism (pt. 6, conclusion)

June 17, 2019

Personally, I do not completely agree with MacIntyre’s communitarian ethics. I do think that his critique of Enlightenment and Modern thought offers the best argument for the conservative project. The political rhetoric of today’s Republicans, whether it is named “emotivism,” “nihilism,” or “bullshit,” reflects a loss of faith in the existence of an objective reality or truth. Nietzsche seems to have described this stance pretty well: God is dead, and they killed him, but they don’t quite recognize themselves that he is dead so they continue to make universal pronouncements about how right they are and how foolish and wrong their enemies are while rejecting the validity of logic, objective facts or expertise, all things once prized by conservatives. My own preference is for an epistemology resting on receptivity coupled with a humility regarding our ability to attain complete truth, the whole truth and nothing but: an epistemology and an ethics more rooted in Hamann, Kierkegaard and Diogenes Allen.[i] Humility was the cardinal virtue, and pride the original sin, according to St. Augustine of Hippo; and there is too much pride in the reliance on “alternative facts” and spin and will-to-power and bullshit and threats and actual violence coming from the Republican Party today.

It is that which causes so much concern in the LGBTQ community, the African American community, the immigrant community, all religious groups outside of the Christian Religious Right (especially non-Christians but also those non-“Evangelicals”) and virtually all others who are not white, conservative Fundamentalist males. Almost everyone outside the Trump base suspects that the supposedly necessary and neutral fact-finding panel is merely cover for narrowing the human rights of everyone who does not fit a very narrow and ideological vision of “human nature.” Perhaps more troubling, the very language of the announcement of this new panel suggests a fundamental abandonment of the whole concept of “human rights” in favor of a conception “American rights.” Instead of looking at humans as a class and declaring that they are valuable in and of themselves, entitled to certain rights, the announcement of this committee’s inauguration said it would found its notion of rights on specifically American history and values. This is abdicating the defense of “human rights” versus attacks by China, Saudi Arabia and other nations that have insisted that in fact there are no “human rights” and that Western nations have simply been attempting to impose their own values on everyone else. Instead, those nations have wanted to say that some people don’t matter, because they are the wrong religion, or wrong gender, or wrong ethnicity, or have the wrong politics. With this declaration, the Trump administration has thrown its lot in with other nations that seek to impose a government-mandated, government-allowed standard of “human” on others, suiting some for exaltation and others for persecution and humiliation, rather than accepting all people as they are, as people, and treating them first as people.

[i] For more on this, see my blog under the category “Humility” https://philosophicalscraps.wordpress.com/category/philosophy/humility/

Natural Law in an Age of Nihilism (pt. 5)

June 16, 2019

Interestingly (to me at least) the very nihilism at the heart of the Republican administration which is putting together this panel actually suggests an argument that something like this is actually necessary.[i] According to Alasdair MacIntyre, it was inevitable that Western culture would collapse into Nietzschean nihilism once it ceased to base morality in the values of a particular culture. The Enlightenment dream of a universal ethics valid for all persons qua persons was a fantasy from the start. All morality has to be rooted in and derived from some vision of human flourishing. The virtues recommended by that ethics are the character traits that aid in living the sort of “good life” embraced by that particular culture. Outside of any social context, those virtues are arbitrary and unsustainable. Unless you embrace the sort of eudaimonia prized by Athenian gentlemen, the Aristotelian virtues such as bravery, self-control and pride won’t make any sense. An Augustinian Christian’s virtues such as humility and universal love would seem absurd to Aristotle, just as some of his virtues would seem to be nothing more than “glittering vices.” In MacIntyre’s understanding of the history of Western thought, the Enlightenment project of basing ethics on universal reason alone apart from all religious, national or other communal standards was doomed from the start, and in fact cut the foundation out from under human moral thought. The result was emotivism, where moral language simply collapsed into a contest of wills, each individual attempting to get everyone else to feel the way he or she felt about whatever point was being debated. From this point of view (sometimes called “communitarian ethics”), the moral nihilism of Donald Trump and the Republican Party is simply an open acknowledgment of the fact that God is dead and has been for a long time, and all the lofty claims by liberalism to seek universal ethical standards has simply been a fraudulent attempt to impose the standards of their group on everyone else through trickery and persuasion. The notion of “human rights,” from MacIntyre’s perspective, would be rights as defined by a certain group using a certain understanding of human nature, but using language that asserts their view to be the only legitimate one. Conservatives, in this view, are simply more honest in relying on political and physical force rather than sophistical argument.

If MacIntyre offers a reason to doubt the common notion of “human rights” as a culturally and religiously neutral, universal ethical standard, then MacIntyre also offers a solution that would cast more doubt on the legitimacy of the State Departmet’s human rights panel as presented in the press. In his essay, “Is Patriotism a Virtue?” MacIntyre argues that loyalty to one’s own group is the cardinal virtue, the one essential quality for any further moral life.[ii] The virtues stem from one’s vision of the good, fulfilled, “happy” human life; and that vision of human flourishing is conveyed to one by one’s particular culture. Without a particular culture, one has no human ideal to seek to live out, hence no virtues as habits enabling that good life (or vices to lead away from it), no moral roots, and one’s moral life simply withers away. Each of us are products of our culture, and our vision of the good life comes from that culture. However, MacIntyre says, that does not mean that everyone in the culture agrees on everything. For example, he points to Adam von Trott, who was involved in a plot to kill Hitler.[iii] Trott did not act out of commitment to some abstract universal morality; he acted because he felt the Nazi leadership of Germany had betrayed German values and German culture and had to be stopped. On this view of patriotism, “dissent is patriotic,” if it is rooted in core values of the community itself and aims to perfect the community as a project. To discover those core values in any community, one would have to look not only at its explicit claims but at its overall history and trajectory, what that society valued as shown in its deeds and its aspirations and what it seemed to be striving towards.

By this standard, conservatives today seem to be going astray; they do not discover and live out their country’s values, but try to recreate it in terms of some other, smaller community’s project. For example, conservatives in America today do not study history; they rewrite it. Even in the communitarian view, facts are facts; what value one puts on those facts may be another matter. And the facts are that the leaders of the American Revolution, the “Founding Fathers,” studied and quoted Enlightenment philosophy, particularly social contract thinking inspired by Rousseau and Locke. They distrusted religious extremism, what we would call “fanaticism” and which they called “enthusiasm.” They embraced the scientific, empirical investigation of truth. Many (roughly half) were Freemasons, embracing a religious liberalism that rejected sectarian or what we would call “fundamentalist” spirituality; a good many were not even Christian, but rather Deists. Thomas Jefferson, Benjamin Franklin and John Adams, the three men selected by the Continental Congress to write the nation’s Declaration of Independence, were religious liberals. Jefferson, who is credited with describing the “separation of Church and State” as a “wall” between the two, was the third president of the United States; yet in conservative circles he is treated as an outlier and unimportant fringe thinker compared to Aquinas despite the fact that only two Catholics signed the Declaration of Independence.[iv] In an attempt to undermine “liberal” and “Democratic” importance in American history, the Christian Reconstructionism or Christian Dominionism promoted by such religious conservatives as Rousas Rushdooney and Jerry Falwell has sought to present the American revolution as a conservative revolution against a liberal monarchy. In fact, it is no coincidence that both the British Conservative party and the Americans who supported King George III were called “Tories.” So when Pompeo says the State Department’s new panel on human rights will seek to express “our nation’s founding principles of natural law and natural rights,” this seems disingenuous. The overall thrust of conservative efforts, including those by some people on the panel, has been not to return to the principles of the Founding Fathers, but to rewrite them. A better way for such a committee to establish “our nation’s founding principles” would be to include historians who could review the personal views and public writings of our Founding Fathers, as well as seminal texts such as the Gettysburg Address and Lincoln’s Second Inaugural Address, MLK’s “I Have A Dream” speech and other documents that have contributed to the wider civil religion of the USA.

To be continued….

[i] Alasdair MacIntyre, After Virtue second edition (Notre Dame, IN: University of Notre Dame Press, 1984) pp. 1-78

[ii] Alasdair MacIntyre, “Is Patriotism a Virtue?” in Morality and Moral Controversies, ninth edition, ed. by John Arthur and Steven Scalet (Pearson Education Inc., NY 2014) pp. 405-410; originally presented in The Lindley Lecture, Department of Philosophy, University of Kansas (1984).

[iii] “Patriotism,” p. 408

[iv] For example, Brian Thevenot, “TribBlog: SBOE vs. the Media,” The Texas Tribune March 22, 2010 (https://www.texastribune.org/2010/03/22/sboe-removes-thomas-jefferson-blames-media/). The actions described here are by no means unique to Texas, but are representative of conservative rhetoric for at least the last several decades.

Natural Law in an Age of Nihilism (pt. 4)

June 11, 2019

In a curious way, this nihilism offers a possible justification for an attempt to reestablish the notion of “human rights” on a firmer foundation.[i] The moral theory of human rights, as outlined in such documents as The Geneva Conventions and The International Bill of Rights, is an attempt to establish a universal moral framework for international statements and action on behalf of the rights of all persons. This theory holds that all people are essentially equal, and have equal rights to such things as freedom of conscience and expression, freedom to live without persecution due to religion, ethnicity or other relevantly similar condition, and so on. As a universal ethic, it is not dependant on any religious or philosophical creed, but simply on a set of moral principles or axioms that are, to coin a phrase, held to be self-evident. However, writer Michael Perry (and some other philosophers) question whether this ethic is in fact as purely secular as it claims. Nietzsche proclaimed the “death of God,” the demise of a universally-accepted morality and foundation of value; but Perry argues that we have by and large simply ignored his critique and proceeded as if in fact we all were on the same page. In this view, “human rights” is founded on a concept of human equality drawn from religion, or perhaps from several religions, and includes such ideas as “we are all equal before God,” “we are all children of God,” the Golden Rule, and other moral principles that seem to be (or at least are taken to be) found in all major religions. But what if this equality is, despite the generations of secular usage, still implicitly a religious notion, with no rational secular foundation? In that case, human rights morality itself has no foundation. This does not mean we have to stop using it; we could simply declare that human equality is an axiom like “straight lines do not intersect,” and go from there. But at least one possible response to the death of God is to deny the claims of self-evidence, and to insist that human equality and human rights be established on other, more rational grounds. The creation of a panel of ethicists to find such grounds, with the idea of basing national policy on human rights upon their conclusions regarding the rational grounding and nature of those rights, would seem to be a reasonable action.

However, Perry’s questions about the ethics of human rights rest on a premise which most American social conservatives would find unacceptable: the death of God. If God is not dead, then there is no reason to believe human rights are dead, either. Nor, in fact, is there any great need to rethink the notion of human rights morality. If our conception of human rights is in fact rooted in beliefs about God, human nature and the relationship between them (that God created all people as essentially good and equal, that God loves everyone and wants us to love our neighbors as ourselves, etc.) then we don’t need to fundamentally redefine human rights at all. We might run into problems with those who simply reject the entire religious framework and with it reject human equality, in which case we might run into the problem Wittgenstein is said to have faced when asked how you can rationally argue that a Nazi is morally wrong. He supposedly responded, “You don’t argue with Nazis. You shoot them.”[ii] But with anyone who is willing to accept the moral axioms of equality, dignity and such, we can viably carry out moral conversations.   We could even say that human rights ethics IS a form of natural law morality, and natural law legal theory: a moral system deriving moral principles and guidance from human nature and nature in general, and a legal theory that our national and international law should be based on such moral principles.

It seems that by saying that we need to rethink and reestablish the entire conception of human rights, the Trump administration is saying that God is dead, therefore belief in human equality is dead, and thus we need to establish our notion of human rights on some other grounds. More traditional American conservatives (like Paul Ryan or Rand Paul) might have chosen to start with Ayn Rand, and the Objectivist definition of humans as innately selfish and rational, so that the richest people are the most rational and since to be rational is also to be just and not to seek unfair advantage for oneself we should just let the rich and powerful do what they want with no government interference. The failure of such ethics when attempted proves, or at least strongly suggests that this view is based on a faulty anthropology; so we can be grateful if Trump relies on Robert George, who seems more inclined than Rand to listen to Kant and other reasonable philosophers.[iii] It seems more likely, for reasons I shall argue later, that Objectivism was passed over not because it was a flawed philosophy, but because it was too consistent. Rand in fact rejected religion, and the Christian ethic of love; she denied the personhood of the fetus and therefore allowed abortion; she was doubtful about the death penalty; and in short, while she opposed “socialism” and consistently conflated democratic socialism with Stalinism, she also stuck to her principles and in doing so took a knife to many conservative sacred cows. If you want to make sure your “independent panel of moral experts” comes out in favor of Republican ideology, you need to stock it with people other than honest Objectivists.

(It may seem strange that Ayn Rand has for decades been such a darling with conservatives, given her expressed contempt for Christianity, Ronald Reagan, and other idols of American conservatism.  After examining comments from politicians and others who express deep love both for Jesus and for Rand, I have concluded that in fact many who love Ayn Rand have never really read her, or at least have selectively read snippets out of her fiction without regard either for the overall message of her novels, or the explicit statements in her philosophical essays.  This has led to absurd statements such as the one from the congressman who required all his staff to read Atlas Shrugged but who was surprised to learn that Rand was an atheist.)

To be continued….

[i] Michael J. Perry, “Morality and Normativity;” in Morality and Moral Controversies, ninth edition, ed. by John Arthur and Steven Scalet (Upper Saddle River, NJ: Pearson Education, Inc. 2014) pp. 56-64. Originally published in Legal Theory 13(3-4) 2007; pp. 211-55;

[ii] I can’t find the source for this story. I was told it was a BBC interview with Wittgenstein. But it makes sense to me; on Wittgenstein’s terms, his game theory of language would imply that there is no way to communicate with someone like a Nazi who simply refuses to join in any shared project or values with you; furthermore, you are making a conceptual mistake to try. The proper language-game to play with Nazis is not “Rational Debate,” but “War for Survival.”

[iii] Denise Cummins, “This is What Happens When You Take Ayn Rand Seriously;” PBS Newshour Feb. 16, 2016 (https://www.pbs.org/newshour/economy/column-this-is-what-happens-when-you-take-ayn-rand-seriously)