Posts Tagged ‘impeachment inquiry’

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. 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.”