The media last week devoted considerable time and space to reporting and commenting on various “developments” in the Mueller investigation. Much of the coverage, however, seemed overplayed in light of two fundamental premises: 1) It is the longstanding position of the Department of Justice that a sitting president cannot be indicted, but must first be impeached. One can debate the correctness of that position, but it is not going to change; 2) If the Democrats gain control of the House, a vote to impeach may be possible, but a vote to convict by two-thirds of the Senate is remote unless and until there is evidence of wrongdoing sufficiently serious, and sufficiently clear, to cause defection by a significant share of the Trump base (a base largely shared by Senate Republicans). And Trump’s claim–that if he shot somebody in the middle of Fifth Avenue he wouldn’t lose any voters–has yet to be disproved.
A corollary of those premises is that charges of obstruction of justice or perjury, however justified legally, are unlikely to be effective. Such charges might well have consequences if Trump could be indicted and tried by a jury, particularly in the District of Columbia. In such a case, proof of an underlying offense is unnecessary (as it proved unnecessary in the case of Scooter Libby). But when the “jury” is the United States Senate, prospects are far less promising. So far as obstruction of justice is concerned, there may well already be enough in publicly reported facts to make out a case that would get to a courtroom jury. And that case might be strengthened if Trump testifies or is interviewed and responds with predictably inconsistent or provably inaccurate answers. But most of the basic facts, such as firing James Comey and threatening to fire Jeff Sessions, are already known and baked in the cake. Whatever supporting evidence appears, an obstruction count in an impeachment charge by the House is likely to be taken seriously by Republicans in the Senate only if it is accompanied by clear and convincing evidence of some crime that Trump was trying to conceal.
That in mind, it was surprising to see on Friday a lead story on the front page of the New York Times titled “Mueller Examining Trump’s Tweets in Wide-Ranging Obstruction Inquiry.” Apart from general skepticism as to whether the obstruction inquiry will be fruitful, scrutiny of Trump’s tweets seems hardly worth a major article. Such an examination might be a routine element of an obstruction case in court, but the results are hardly likely to move the needle on opinion in the Senate. (It is also puzzling to try to figure out who leaked the story to the Times and why, the source being identified only as “three people briefed on the matter.”)
Similar skepticism may also be justified in connection with speculation that, if Trump testified under oath or lied in an interview with the Special Counsel, he might be walking into a “perjury trap.” It is true that if Trump were an ordinary witness his distant and uncomfortable relationship with the truth would be a source of serious vulnerability. But Trump is no ordinary witness and would be tried in no ordinary court. In fact, his reputation for mendacity is so well established that it may operate as a shield. Whatever falsehoods he might utter, and how clearly their falsity might be established, there is a good chance that they would be shrugged off by many Senate Republicans as merely “Trump being Trump.”
It was reported last Monday, that Trump’s lawyers were still in negotiations with Mueller’s office as to whether, and under what ground rules, the latter might interview Trump. It may be that the Trump team has relatively little incentive to agree to an interview, and also sees relatively little risk in refusing to do one. Trump and his allies have been sufficiently successful in eroding public support of Mueller that, if Trump refuses an interview, his base is likely to be undisturbed. Mueller may well subpoena him, but if Trump contests the subpoena the outcome is far from certain. As previously suggested on these pages, United States v. Nixon is not as clear a precedent as some have claimed; and if the nomination of Judge Kavanaugh to the Supreme Court is confirmed, that might tip the balance in Trump’s favor. In any case, if the courts ruled against Trump, he could always reverse course and back down as he has done in the past on many matters ranging from immigration to threats to North Korea to tariffs on the European Union.
Looking past obstruction and perjury to an underlying offense, the trail is also murky. Considerable media attention was given last week to the claim by Trump’s one-time lawyer, Michael Cohen, that Trump knew in advance of the meeting in Trump Tower with Russians who had promised to provide “dirt” on Hillary Clinton. Trump has flatly denied the allegation, and whether Cohen can produce any corroborating evidence remains to be seen. But even if he does, it may well be shrugged off by Trump’s base and Republicans in the Senate. The Trump Tower meeting was one at which it appears no dirt was produced, and many may say in the language of the basketball court, “no harm, no foul.”
There could, however, come to be another dynamic in play. Donald Trump, Jr. has admitted (after being confronted by emails) to knowing that the purpose of the meeting was to obtain derogatory material, and it might be possible to fashion a charge against him of conspiracy to violate a federal law. Moreover, he testified under oath that his father knew nothing of the meeting and, if there is convincing evidence to the contrary, Donald Jr. could be indicted for perjury. If that were to happen, how would President Trump react? It is not hard to imagine that he would respond with a pardon, but it is more difficult to assess what the political impact of the pardon would be.
Media excitement was also aroused by a report that the Chief Financial Officer of the Trump Organization, Allen Weisselberg, had been subpoenaed to testify before the grand jury in New York City that is investigating Michael Cohen. That investigation, directed by the Acting United States Attorney for the Southern District, concerns payments to Stormy Daniels and to a former Playboy model, Karen McDougal, and perhaps other matters. The media have noted that Weisselberg, a longtime and trusted employee, has a comprehensive knowledge of the financial workings of the Trump Organization. That in turn makes one wonder whether Weisselberg has already been interviewed by the Mueller team in connection with it’s investigation and, if not, why not? After all, Donald Jr. said in 2008:
In terms of high-end product influx into the US, Russians make up a pretty disproportionate cross-section of a lot of our assets. Say, in Dubai, and certainly with our project in SoHo, and anywhere in New York. We see a lot of money pouring in from Russia.
Junior’s comment would seem to suggest an appropriate line of inquiry in any probe of possible collusion with Russia in the 2016 election. Nevertheless, unless and until there is some indication that Mueller is moving in that direction, it would be a mistake to assume that significant incriminating evidence will be turned up. In the meantime, the Daniels and McDougal stories provide entertainment value on the cable television networks, but will probably will not do much lasting damage to the Teflon Don.
Where are we at this point? No one knows what Robert Mueller has or may yet discover, and his investigation is clearly far from a mere witch hunt. Attempts to undermine or foreshorten it must be rejected with whatever moral fiber Congressional Republicans still retain. On the other hand, it would be a mistake for Democrats and disaffected Republicans to assume that impeachment is the answer to the “Trump problem.” Personally, I remain convinced that Trump is manifestly unfit for the presidency, but unconvinced that impeachment would be an appropriate or feasible means of his removal from office.
With or without assistance from the Russians, the voters put Trump in office and it is likely that the voters will have to remove him through the ballot box in 2020. But even that will not be as easy as it seems to many of us it should be. Bret Stephens wrote a brilliant and depressing column in the New York Times online, envisioning a Trump victory in 2020 and describing the events that led to it: “How Trump Won Re-election in 2020.” It is a cautionary tale that I would urge every member of the RINOcracy.com audience to read and reflect upon.
Doug Parker’ review of The Donald’s escapades before, during, and after are revealing in the focus on The Donald’s activities. I note an absence of the scandalous activities of the Justice Department and Federal Bureau of Investigation top officials to prevent our president from a successful term. Fox News constantly reports the latest developments if RINOcracy readers would like another point of view. I use The Donald in place of Trump because the T-word brings such one sided, emotional discourse as to prevent normal discussion. This commentary is response to Doug’s call for an open discussion of the current political climate. My view is you personally have only one vote per ballot. Vote wisely after considering all sides.
Your contrarian views are welcome. I would note that the top officials of DOJ and the FBI whom you accuse of unspecified “scandalous activities” to prevent Trump from having as successful term were Republicans appointed by Trump.
Fox News is fine if you watch Shepard Smith during the day or Bret Baier in the afternoon. Beyond that, you’re into the Deep Swamp.
David Leonhardt’s piece on how Trump loses re-election in 2020 is
a happier read.
It’s too early to predict what Mueller will find. Trump is after all a crook. But in any case, impeachment in the House would probably seal his fate. It is therefore not a futile exercise.
Another sobering, sad dose of reality, Doug. I agree with your assessment that Trump might be impeached by the House, but the Senate will convict only when they play ice hockey in hell in August. As you also note, Trump is incredibly unprepared and unsuited for the job, but the only realistic chance of booting him out is in the 2020 election. As you also note, that is not a slam dunk. The Democrats historically show a tendency to shoot themselves in the foot, reload, and then blast away at the other foot. Case in point, the nomination of John Kerry to battle Bush 43. Kerry came surprisingly close to defeating Bush. One can only wonder what the outcome would have been if the Dems had nominated one of their mainstream candidates who did not have Kerry’s baggage.
Doug, I absolutely agree with your analysis (as always): (1) impeachment does not currently seem to be the way to go; and (2) exploration of Trump’s financial entanglements with Russia is. Seems to me that even if the latter didn’t lead to impeachment, the revelations might be sufficient to damage Trump’s 2020 re-election prospects, assuming the Dems don’t shoot themselves in the foot by nominating some lefty-wackadoodle (if they do, no need for Donald to shoot him/her on 5th Ave).
But I do have one question, a point my husband has repeatedly raised: isn’t the more potentially incriminating issue in the now-infamous email to Don Junior, the assertion–welcomed by Junior– that the assistance offered (dirt on Hillary) was based on the Russian govt’s affirmative desire to support Trump’s election?
In other words, not “no harm no foul;” the fact that the promised “dirt” was not provided by the Russians at the Trump Tower meeting in June 2016 does not absolve the Trump campaign of its explicit acceptance of Russian governmental assistance.
As indicated in the blog, the Trump Tower Meeting, and Donald Jr.’s email, might be the basis of a criminal indictment, although it would be far from a slam dunk given that the “assistance” apparently never materialized and there was, as far as we presently know, no “agreement to do anything except come to a meeting. And I remain skeptical that in the “jury” of the United States Senate it would gain a vote to convict. But as indicated in my reply to Stacey Griffith, that’s not reason not to be outraged by it.
One issue that has bothered me from the beginning of the Russian collusion story; while I have no doubt Russian meddling occurred, why are we so ‘outraged’ when our country has practiced this many times in the recent past? I believe US taxpayer money was used by President Obama to try and unseat Netanyahu in Israel. Our gov’t was involved in Ukraine elections, Iranian elections, and I can’t count how many Central and South American countries elections. We sure hate it when it swings around to bite us, but why the outrage?
I, too, hope the Mueller investigation continues until it exhausts its material and reaches a conclusion. Mueller continues to retain his reputation and I will await the results with anticipation and confidence that he will ‘get it right’, whatever right may end up being.
You have a point, Stacey, though I think that American “meddling” has never been on the scale of what the Russians did in 2016 and any American meddling has generally been to support democracy, not undermine it. I don’t believe there is any evidence that President Obama used taxpayer money to try to unseat Netanyahu. As I understand it, the State Department did give grants to an Israeli group that supported a two-state solution. The grant money was used to create an infrastructure that was later, after the grants expired, used to oppose Netanyahu.
In terms of “outrage” there is probably not much point in directing expressions of outrage at Russia. There is a point to imposing sanctions to discourage further meddling. Moreover there is a good reason to direct outrage at Americans who conspired or “colluded” to assist the Russians in their meddling or to take advantage of it. The notorious “Trump Tower Meeting” may or may not turn out to be part of criminally indictable conduct, but it’s a fair target for outrage.
Excellent analysis. I can imagine The Donald being named as an unindicted co-conspirator but without something truly substantial accompanying that designation I agree that the likelihood of removal is not substantially advanced. An unknown is the cesspool of the Trump Organization and what might ultimately be revealed related to that entity.
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