Person of interest: The dilemma over whether to pursue Donald Trump

by Paul Thomas / 11 June, 2019
President Donald Trump: “total exoneration”. Photo/Getty Images

President Donald Trump: “total exoneration”. Photo/Getty Images

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To maximise their chances of winning the 2020 presidential election, the Democrats may not pursue impeachment, after all.

Former special counsel Robert Mueller has declared his intention to fade into sealed-lips obscurity, thereby cementing his standing as the most enigmatic person in the US.

What he called his “testimony”, the 448-page report on Russian interference in the 2016 presidential election and possible co-ordination with Republican candidate Donald Trump’s campaign, was a political Rorschach test: much of the reaction to it told us more about the responders than the report.

Republicans derided the report as a rather shamefaced admission that the investigation was exactly what they’d said all along: much ado about nothing. According to Representative Jim Jordan, one of Trump’s most vociferous allies, “Mueller had 22 months, $30 million, 19 lawyers, 40 FBI agents, 500 witnesses, 2800 subpoenas. If he could have accomplished obstruction, he would have done it.”

The Democrats interpreted the report very differently and are using their control of the House of Representatives to ensure it’s anything but “case closed”.

As the Great Enigma left the stage, he set the cat among the pigeons one last time. During a 10-minute media appearance to announce he was stepping down and the special counsel’s office was closing, Mueller emphasised that, from the outset, the investigation had been entirely shaped by the Justice Department’s Office of Legal Counsel’s (OLC) opinion that a sitting president cannot be charged with a crime. Furthermore, it would have been unfair to suggest Trump had committed crimes he couldn’t be charged with and therefore couldn’t defend himself against in court.

And there was this: “If we had confidence that the President clearly did not commit a crime, we would have said so.” And this: “The constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” The consensus was that these oblique utterances were “an impeachment referral”, as Democratic senator Kamala Harris put it.

Republicans complained that Mueller was exceeding his authority and refusing to go quietly, but he’d actually placed the Democrats on the horns of a dilemma: to impeach or not to impeach.

Former special counsel Robert Mueller. Photo/Getty Images

Role transformed

Attorney General William Barr has a reputation as a man of principle, an institutionalist who’d resist any encroachment on the Justice Department’s independence and impartiality. But his handling of Mueller’s report, particularly his efforts to craft a narrative enabling President Trump to claim “total exoneration”, has hollowed out a reputation three decades in the making.

In a recent interview, Barr said he wasn’t concerned about how he’d be remembered: “I don’t believe in the Homeric idea that immortality comes by having odes sung about you over the centuries.” Given that, in the space of a few months, he has transformed the attorney general’s role from the nation’s chief law-enforcement officer to the sitting president’s personal attorney, that was a resounding statement of the obvious.

The attitude of House Speaker Nancy Pelosi, the de facto leader of the Opposition, and senior congressional Democrats to all this can be summarised as: proceed with extreme caution. The first and most obvious reason for their misgivings is that impeachment won’t remove Trump from office.

To put it simply, the House of Representatives acts as the prosecutor, deciding whether there’s a case for impeachment. The judiciary committee assembles the evidence and makes a recommendation, then the House votes on it. If a simple majority votes for impeachment, the case proceeds to the Senate, which functions as judge and jury. Conviction requires a two-thirds majority in the 100-seat chamber where the Republicans are the majority. As things stand, there’s not a snowball’s chance in hell of 20-odd Republicans joining the Democrats to secure Trump’s removal from office.

Adam Schiff, Democratic chairman of the house intelligence committee, believes the conduct revealed in Mueller’s report rises to the constitutional threshold of “high crimes and misdemeanours”, adding the caveat that the GOP “has turned itself into a cult of the President’s personality and is not likely to act consistent with its constitutional obligations”. Given that it’s destined to fail, he’s reluctant to put the country through the wrenching and divisive process of impeachment.

Schiff worries that impeachment would be bad for the country, but a more pressing concern for some of his party colleagues is that it might be bad for the Democratic Party. “Impeachment is a political act,” said house judiciary chairman Jerry Nadler, “and you cannot impeach a president if the American people do not support it.”

Or, to put it in more cynical terms, impeachment will be a vote loser in 2020. If the object of the exercise is to get rid of Trump, say the hard heads, the Democrats should avoid doing anything that reduces their electoral appeal and/or generates sympathy and support for Trump. The polls indicate that a doomed impeachment process is likely to do both. Indeed, there’s a theory that Trump firmly believes this and will do his provocative utmost to goad the Democrats into impeachment in the expectation that he will be the beneficiary when votes are counted in November 2020.

House Speaker Nancy Pelosi. Photo/Getty Images

Impeachable offences

But here’s the dilemma: the Democratic base wants action. If the party leaders adopt a stance of insisting both that Trump committed impeachable offences, but they’re not going to impeach, they’ll run the risk of disheartening, even alienating, the activists and energisers who will be needed in 2020, thereby bringing about the very outcome they’re seeking to avoid.

Then there’s the bigger picture. Under the constitution, impeachment is the means whereby America rids itself of a lawless president. As Mueller alluded to, the OLC opinion that he relied on has the indirect effect of consolidating impeachment’s place in the legal scheme of things. Therefore, if the Democrats balk at impeachment despite a weight of evidence that clearly accords with the historical consensus of what amounts to impeachable conduct, wouldn’t they also be ducking their constitutional responsibility?

Furthermore, if the Democrats decide not to impeach a president they fully believe to be a lawbreaker, based on calculations of how it will play with the electorate next year, the constitutional safeguard of impeachment will be in acute danger of becoming a relic of a bygone era with no relevance to 21st-century politics. At that point, given the Department of Justice’s policy, the president will be above the law, not merely in effect, but in law.

Hence, the House Democrats have embarked on a middle way: what’s being referred to as “impeachment in everything but name”. They’re pressing ahead with investigations and legal action on several fronts to buy themselves time, placate the party faithful and forestall the accusation of having consigned impeachment to the dustbin of history. The hope, presumably, is that what comes to light in this process will create a public mood in favour of impeachment that Republicans will defy at their peril.

Impeachment has “already begun”, according to House majority whip James Clyburn: “We’ve got all these committees doing their work, we’re having hearings, we’ve already won two court cases and there are other cases that are still to be determined, so why should we get out in front of this process?”

Attorney General William Barr. Photo/Getty Images

Russian meddling

Needless to say, Trump and his allies aren’t sitting on their hands while the Democrats beaver away.

Trump called impeachment “a dirty, filthy, disgusting word”, and suggested the courts wouldn’t allow it to happen. Neither of these statements indicates a close familiarity with the US Constitution. He has initiated an investigation of the investigation, giving Barr unprecedented powers to force the various security agencies to hand over material, no matter how highly classified, pertaining to their probes into Russian meddling and release it as he sees fit. As we now know, the selective dissemination of information is Barr’s forte.

Trump has prejudged the outcome, declaring the likes of former FBI director James Comey and former acting director Andrew McCabe guilty of “treason”. More worryingly, so has Barr.

More comfortable by the day with his decision to come on down from above the fray, Barr recently offered a new twist on the “deep state’s attempted coup” Republican talking point: “One of the ironies today is that people are saying it is President Trump who is shredding our institutions. I really see no evidence of that. From my perspective, the idea of ‘resisting’ a democratically elected President and basically throwing everything at him, and really changing the norms on the grounds that we have to stop this President, that’s where the shredding of our norms and institutions is occurring.”

Barr, then, has already decided the investigation into the Trump campaign’s ties to Russia was a rogue operation.

On trial for crimes

Corey Lewandowski – replaced as Trump’s campaign manager by Paul Manafort, who is now languishing in prison as a result of the Mueller investigation – is even further down that path. He told Fox News that “we’re going to see in April or March of next year James Comey, Andy McCabe, [Peter] Strzok and [Lisa] Page will be on trial for crimes they have committed against the Fourth Amendment and against this President. But we can’t wait.”

The Fourth Amendment prohibits unreasonable searches and seizures and sets requirements for the issuing of warrants. Strzok is a former FBI agent who was dumped from Mueller’s team when anti-Trump text messages exchanged with his lover, Page, an FBI lawyer, came to light. He was subsequently dismissed from the FBI.

Lewandowski also flagged that the Trump re-election campaign will use this investigation to try to smear former Vice President Joe Biden, the frontrunner for the Democratic presidential nomination: “The person who has gotten a pass on this so far is Joe Biden, because I believe the investigation, which was launched, came from somewhere inside the White House … it came from the highest levels of government. Joe Biden has not answered what he knew, and when he knew it, of how this investigation began.”

Lewandowski produced no evidence for this connection, but since when did the Republicans let the facts get in the way of a smear campaign? This promises to be a replay of the attempt to tarnish Hillary Clinton before the 2016 election by dragging her into the spurious Benghazi “scandal”. The Republican-led house select committee investigation of the 2012 jihadist attack on a US diplomatic compound in Benghazi, Libya, in which four people were killed, and then Secretary of State Clinton’s actions pertaining thereto, lasted longer than that into the 9/11 terrorist attacks.

They’re still chanting “Lock her up” at Trump’s rallies. The updated version, unveiled when Trump went on a treason tirade in Pennsylvania last month, is “Lock them up”. When it died down, Trump told the crowd, “We have a great new attorney general who’s going to give it a very fair look.”

You could almost hear him add: “Now, as you were saying, ‘Lock them up.’”

This article was first published in the June 15, 2019 issue of the New Zealand Listener.

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