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theodore M I R A L D I mpa ... editor, publisher, writer
Thursday, February 8, 2018
Right Now, Democrats Have NO OBSTRUCTION CASE Against Trump
Every one of Trump’s actions cited as grounds for an obstruction charge are well within the powers of the presidency, regardless of intent. Willis L. Krumholz
After more than a year, Donald Trump opponents — at least those who don’t care about convincing the American people on policy differences — are starting to realize they are drilling a dry hole when searching for his alleged collusion with Russia. Not to be dissuaded, the “Resistance” is now hoping that former FBI director and now special counsel Robert Mueller is building an obstruction-of-justice case against the president.
Obstruction of justice is defined as “corruptly” attempting to “influence, intimidate, or impede” an investigation or legal proceeding. How exactly do some think President Trump obstructed justice? There are supposedly many examples, the latest being the New York Times’ report that Trump wanted to fire Mueller but decided against it, only after the threat of resignation by his top lawyer (this portrayal has since been disputed, and said to be far less dramatic).
Wait a second. President Trump talking about firing Mueller but not actually doing so — a move that would be politically dangerous but also totally within his power as president — amounts to obstruction? That’s exactly what CNN’s top #MeToo campaigner Ryan Lizza thinks, and so do many elected Democrats (especially those facing a primary opponent or who would like to run for president). Sen. Richard Blumenthal (D-CT) just told not-crazy Rachel Maddow that there is now a “credible case” of obstruction of justice against President Trump.
Their fantasy of an obstruction case against Trump also rests on when Trump asked former FBI director James Comey, before firing him, to go easy on former national security advisor Michael Flynn. Mueller has interviewed Comey, U.S. Attorney General Jeff Sessions, and Flynn, and is hoping to interview President Trump — the cast of characters involved in the firings of both Flynn and Comey.
It’s Not a Crime for the President to Exercise His Powers
On this angle, here’s Vox’s Zach Beauchamp: “The case against Trump on obstruction grounds is very strong — stronger even than the evidence that the Trump campaign broke the law by colluding with Russian’s campaign to influence the election.” Beauchamp says this is particularly true “when it comes to the Comey firing.”
Huh? How was Comey’s firing, which was perfectly in Trump’s power as president, a crime? President Bill Clinton, for example, fired his FBI director. The theory is that if Trump intended to interfere in the Russia investigation when he fired Comey, this amounts to obstruction. “This all hinges on what was in the president’s mind when he fired Comey,” says Beauchamp.
Beauchamp and his sources believe there is good evidence of intent to obstruct: “There’s an interview with NBC’s Lester Holt in which Trump admits to removing the FBI chief because he felt ‘this Russia thing with Trump and Russia is a made-up story.’ There was Trump’s meeting with Russian Foreign Minister Sergei Lavrov the day after the firing, where he told the foreign diplomat that ‘I faced great pressure because of Russia [and now] that’s taken off.’ And then there are his endless tweets about how he thinks the Russia investigation is a ‘witch hunt’ and should be shut down.”
Open and shut, at least according to Beauchamp. But Mueller can’t just prosecute the president. If Mueller really believes he has an obstruction case, what would he do? First, he would have to go to Rod Rosenstein, the acting attorney general for the Russia investigation (Sessions recused himself from the Russia investigation). If Rosenstein approves it, Mueller would issue a report outlining the obstruction charge. At that point, if Congress wants to take up impeachment, it can.
The ‘Obstruction’ Charge Is Junk Law
This kind of liberal chatter is simply junk law, like the recently trashed Emoluments Clause suit against Trump brought by left-wing law professors who should have known better. It’s also like the junk science that other anti-Trumpers have been practicing in claiming that the president’s mind is unsound.
First of all, every one of Trump’s actions cited as grounds for an obstruction charge are well within the powers of the presidency, regardless of intent. On this note, famed attorney Alan Dershowitz rightly says that an obstruction case would need to contain an explicit misdeed outside of the president’s powers, such as paying hush money, telling people to lie, or destroying evidence. These are specific and corrupt actions, present in the Clinton and Nixon investigations and impeachment proceedings, a president doesn’t have the constitutional power to do. There is zero evidence any of these actions occurred in the case at hand. Democrats are twisting the definition of obstruction of justice to mean almost nothing.
What of President Trump’s comments about Flynn or the Russia investigation? A president is perfectly entitled to weigh in on an investigation, even one that touches him, just as President Obama did on multiple occasions. The Constitution’s Article II “Vesting” Clause, coupled with its “Take Care” Clause, puts the president in charge of all federal criminal investigations and prosecutions. As a result, the president can order any investigation or prosecution discontinued at his or her sole discretion. Period.
The president can also end an investigation for any reason. Just like the absoluteness of the veto power, federal criminal law cannot look behind the president’s lawful decisions pertaining to an investigation. In addition, because the president has the pardon power, the president may weigh in on criminal investigations and prosecutions (an investigation would make no sense if the individual subject to investigation were pardoned).
The late Antonin Scalia argued as much in the 1988 “Independent Counsel” case, Morrison v. Olson. He argued the Constitution confers on the president the exclusive power to conduct federal criminal prosecutions — including in their investigative phase. Although a dissent, Scalia’s opinion has garnered widespread approval from liberal and conservative legal scholars alike. (Professor Cass Sunstein, later an Obama appointee, said Scalia’s opinion had “nailed it.”) What’s to stop improper behavior by a president, then, when that behavior falls under constitutionally granted powers? The political process, which flows from the people, of course.
What’s more, Trump did not interfere with or terminate the FBI investigation; he only terminated Comey. And there is no reason to believe Trump even attempted to exert improper influence on Comey’s investigation of Flynn. This is so even if one accepts Comey’s recollection that Trump told him he “hope[d] you can see your way clear to letting this go, to letting Flynn go . . . . He is a good guy.” If it becomes an impeachable offense for a president to “hope” an FBI director will “see his way” to ending an investigation, then the president’s control over federal law enforcement, not to mention his or her ability to present the issue to the public, has been shredded.
But for the sake of argument, let’s say that the Left’s legal experts are correct, and that a president may be charged for exercising his or her constitutionally granted power if the intent of the action was “illegal.” Put aside the obvious problem of allowing the intent of a president’s otherwise-lawful actions to be analyzed for illegality by that president’s political opponents — which makes the same point as above but from an angle of practicality — and accept that Trump’s intent, if it was meant to interfere with the so-called Russia investigation, could be damning. What do the facts show?
Comey’s Firing Was Not Obstruction
Trump had crystal-clear reasons to fire Comey, even if Trump thought he would be treated more fairly after Comey was gone. Comey’s intervention before the election to re-open then close the Clinton email investigation after Clinton emails were found on Anthony Weiner’s laptop was, as Rep. Matt Gaetz correctly labeled it, a classic “CYA” move.
Comey was telling Trump privately that he was not under investigation, but hinting to Congress publicly that the president was under investigation.
Democrats like to complain about this, but Comey’s intervention was necessitated by the FBI’s corrupted handling of the Clinton email investigation. We now know that former FBI number two Andrew McCabe (who was just pushed out last week) knew about the emails on Weiner’s laptop and sat on the information for weeks. Eventually, FBI agents threatened to bypass McCabe and take the information public.
Comey couldn’t risk the FBI’s bias coming under public scrutiny. If he had done nothing, the news of Weiner’s laptop would have leaked and been even worse for Clinton and Comey. On top of this, Comey assumed Clinton was sure to win.
Right before being fired, Comey was also telling Trump privately that he was not under investigation, but hinting to Congress publicly that the president was under investigation. This likely caused some “fire and fury” in the Oval Office, and would provide ample intent for firing Comey.
Also keep in mind that during this time, frustration with the FBI was already at a maximum. Howard Kurtz’s new book, “Media Madness,” tells how McCabe asked former White House chief of staff Reince Priebus for a private meeting. McCabe wanted to tell Priebus that a New York Times story, sourced by four anonymous intelligence officials and saying that Russian intelligence had contacts with the Trump campaign, was “bullsh-t.”
McCabe claimed to want Priebus to know the FBI’s perspective that this story was not true. Priebus pointed to the televisions that were going non-stop on the story. He asked if the FBI could say publicly what he had just told him. McCabe said he’d have to check, according to the book.
McCabe reportedly called back and said he couldn’t do anything about it. Then-FBI director James Comey reportedly called later and also said he couldn’t do anything, but did offer to brief the Senate Intelligence Committee on the matter later that week, suggesting they’d spill the beans publicly. You’ll never guess what happened next…
A week later, CNN blared that the FBI had refused a White House request to “knock down” stories of Trump campaign contacts with the Russians. This wasn’t the only time something like this happened. Here’s Hemingway again: “Partisan operatives in or close to the FBI communicated snippets of information with reporters who didn’t demand proof or substantiation, then FBI officials denied to White House officials who knew the facts that they were seeding that information, then officials suggested that White House operatives were obstructing justice by asking for the truth to out.”
The decision to fire Comey couldn’t have conceivably delayed or impeded the Russia investigation, because that remained in the hands of Comey’s deputy.
Was Comey involved in setting up White House officials for obstruction charges like this? Who knows, but this certainly would give a president grounds to clean house at the FBI. If that also meant an investigation without basis, and possibly meant to cover up FBI wrongdoing, might end (it didn’t), and the president would stop seeing his election victory undermined as a bonus (he didn’t), then so be it. If that’s obstruction, then Adam Schiff is Santa Claus.
But the real arrow in the heart of the obstructionistas is what Trump knew about the Russia-investigation at the time. The decision to fire Comey couldn’t have conceivably delayed or impeded the Russia investigation, because that remained in the hands of McCabe, Comey’s deputy, who became acting FBI director in Comey’s absence.
McCabe reported to Deputy Attorney General Rosenstein, who gave the green light to fire Comey. And the Trump administration waited for Rosenstein’s approval before firing Comey, in an attempt to observe process. It is also no small coincidence that Comey was fired soon after the Senate confirmed Rosenstein, as it would be completely natural for Rosenstein to do a staff review in his first several weeks on the job.
Trump turned out to be more than right about Comey. We now know that Comey lied when he said Obama’s attorney general Loretta Lynch didn’t know whether he would recommend charges against Hillary Clinton, at least according to the Page-Strzok texts. We also know that Comey leaked classified information to a law professor friend to get a special prosecutor appointed, and is now claiming this friend is his attorney to attempt to protect their conversations with attorney-client privilege.
How Trump Handled Flynn Was Not Obstruction
When Comey was fired, the alleged big concern that sparked Comey to write and leak recollections of conversations with the president and testify to Congress — with the explicit goal of getting a special counsel appointed — was that Trump had urged Comey to “go easy” on Flynn. What happened with Flynn?
Flynn was doing what every national security advisor does: talking to foreign officials.
After Trump was elected and before the inauguration, Flynn was doing what every national security advisor does: talking to foreign officials. Flynn’s job was especially busy, because Obama’s administration was flouting presidential decorum to place new sanctions on a major foreign power — Russia — and planning on abstaining (not vetoing, a first for U.S. policy) from a U.N. Security Council vote that would declare Israel’s settlements illegal.
So during the presidential transition Flynn phoned the Russian ambassador, asked him to help delay the U.N. vote, and asked him to not retaliate against Obama sanctions. These actions, while Obama was still in office, supposedly ran afoul of the 1799 Logan Act, that forbids “any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government … in relation to disputes or controversies with the United States.”
The Obama administration had warned the Trump transition about the Logan Act, and a long line of Democrats during the 2016 campaign called for Trump or his officials to be prosecuted based on Logan Act violations. This is why, at the behest of Obama DOJ holdover Sally Yates, FBI agents including Strzok went to interview Flynn, days after Trump’s inauguration, about his conversations with the Russian ambassador. Flynn, likely worried about the Logan Act, lied to the FBI agents about his transition-period conversations.
Now, a Logan Act violation is a non-crime. The law, signed by John Adams, has been widely disregarded by incoming administrations, including the Obama administration, never been prosecuted, and is likely unconstitutional. Heck, John Kerry is a walking Logan Act violation. We all eagerly await Yates’ calls for the former secretary of State to be prosecuted. In this light, Trump’s admonition to “go easy” on Flynn could easily have meant just that. The FBI did “entrap” Flynn (at least in the colloquial sense) with a fake pretext, after all.
Do Democrats Want to Tear the Country Apart?
Most troubling is the politics at play, and what all this means for the country. Previous cases of investigation and impeachment in the modern era, against Richard Nixon and Bill Clinton, started because of some underlying crime that had occurred in which the president was complicit.
Without a crime in mind, the Department of Justice should never have appointed a special counsel.
Here, we still have no evidence of any underlying crime. There is no evidence Trump had anything to do with any Russian interference in the 2016 election. As Andrew McCarthy has pointed out, without a crime in mind, the Department of Justice should never have appointed a special counsel. The only meager evidence offered of collusion has been a Trump Tower meeting and a dossier, both of which were engineered by Fusion GPS, a firm with ties to the Kremlin that was being paid by the Democratic National Committee and Clinton campaign to come up with evidence of collusion.
So none of this is like anything in modern history. But this is like the impeachment of Andrew Johnson. Johnson, a Southerner, was Lincoln’s vice president. After Lincoln’s assassination, a Republican Congress wanted Johnson out, and passed a law that said he couldn’t fire members of his cabinet (with whom he didn’t get on well).
Johnson fired away, and the House voted to impeach. In the end, Johnson hung on to office by a single vote in the Senate. That was right after a civil war. The fact that things could be getting that bad again should tell us something about the current state of America, and of today’s Democrat Party.
This type of thinking will tear the country apart. Amazingly, it is coming from people claiming to stand up for American institutions.
Let’s be blunt. Trump’s supporters know the facts above. They know that this entire affair has been manufactured out of whole-cloth. These voters also have real concerns that official Washington — both parties — has ignored for decades.
If Democrats move for impeachment, again depending on what Mueller does, there is no sex harassment case (Paula Jones), cajoling of witnesses, or break-in at the Watergate Hotel to at least somewhat justify such an action. There is only a power-hungry establishment, still feeling the sting of an election that they should have won.
This type of thinking will tear the country apart. Amazingly, it is coming from people claiming to stand up for American institutions, like Morning-Prozac Joe Scarborough. What can be done? Voters must ask their elected officials, both Republican and Democrat, to deal with the abuse of power at our intelligence agencies, then move on from the 2016 election.
Republicans should give Mueller the benefit of the doubt, but should not feel they are being Trump sycophants if they have to thwack Mueller, or ignore him, for exceeding his ill-defined boundaries. Mueller’s boundaries need to be clearly laid out, and voters should support politicians that call for this, not who think this unimportant.
Democrats also have something to gain from ending this madness. Obsessing over collusion and obstruction is not good for the Democratic Party, or for the people Democrats claim to champion. This country needs a responsible left-of-center party, maybe now more than ever. So far, such a party is nowhere to be found.