THE BARR LETTER—NOT WHAT YOU KNOW BUT WHAT YOU CAN PROVE

Special Counsel Robert Mueller

There is a saying in law and law enforcement that, in court, it isn’t what you know, but what you can prove. This is the same rule I applied many years ago as a newspaper editor in deciding what would go into the paper and what wouldn’t—or would, perhaps, if I thought it was newsworthy, but with all of the “allegedlys” and “reportedlys” and sourced quotes necessary to piece a story together without stating it as fact unless we had hard evidence that it was. I still apply that rule to all of my non-fiction writing and opinion pieces.

That’s why I think that, no matter on which side of the deeply partisan US divide we might be, both sides need to admit that Robert Mueller and Rod Rosenstein are both serious public servants who have done their best in a highly conflictive climate to be firmly impartial and to preserve the rule of law, resisting tremendous pressure from all quarters to abandon their best instincts.

Deputy Attorney General Rod Rosenstein

That said, this is the same kind of impartiality that Attorney General William Barr should apply to his handling of the report that Special Counsel Robert Mueller handed him last weekend. So far, all we have is a brief four-page summary that Barr released after reading the Mueller Report. And the attorney general is still in the process of deciding just how much of the information contained in the report he will release to Congress and to the American people.

Already in his summary, however, Barr has caused surprise by inserting himself into the discussion, making judgments about the level of guilt or innocence of the president and his aides that, according to his own admission, Mueller never articulated in his report. Specifically, Barr says that, “...Assistant Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” In other words, Barr would appear to be arriving at a conclusion that the report itself did not, as far as we know. 

Nor is President Trump’s assertion that the report “completely exonerates” him accurate. On the contrary, according to the attorney general, the Mueller Report says specifically that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

This is an important distinction since it leaves the door open to prosecution of questionable actions in other venues—such as the Southern District of New York. And, as the report indicates, the Special Counsel himself has, according to Barr, “referred several matters to other offices for further action” even though the report makes no recommendation for further indictments within the limits of Mueller’s investigation itself.

Disgraced National Security Advisor Michael Flynn
pled guilty to a one-count felony and told all.

It is important to make a distinction too between exoneration of the current administration (and its entourage) from all wrong-doing and simply finding insufficient evidence to lay charges—again, it’s not what you know but what you can prove. Be that as it may, Democrats were quick to quote the rule of law when the Republicans cried foul after the FBI announced that there was insufficient evidence to charge then-presidential candidate Hillary Clinton for her private email escapades. They will need to remember that now, when the GOP cites the Mueller Report as finding insufficient evidence to accuse the president and his associates of conspiracy with Russia to affect the outcome of the 2016 elections or of obstructing justice by firing former FBI Director James Comey.

And a further distinction to be made is between not having sufficient evidence to prosecute and the power of Congress to impeach a president when his misdeeds warrant it, based on political and ethical rather than legal considerations. Nor should public perception be seen as bearing any resemblance to the limitations of legal justice. According to Washington Post legal analyst Henry Olsen, “This evidence could have a quite different effect on public opinion than it would in a legal proceeding. Criminal prosecutions require proof ‘beyond a reasonable doubt,’ and Mueller clearly saw a strong case against Trump under that standard. While Barr decided he did not, reasonable observers could conclude differently. They could also conclude, perhaps, that they have reasonable doubts but think Trump did obstruct justice under the more lenient ‘clear and convincing evidence’ or ‘preponderance of the evidence’ standards. Prosecutors would not look at a criminal case through those lenses, but politicians and pundits are sure to do so.”

Olsen goes on to suggest that “the matter of the president’s intent is key, as a prosecutor would have to prove that such a crime was committed with ‘a corrupt intent.’ Barr writes that the special counsel’s finding that the president was not involved in an underlying crime bore ‘upon the President’s intent’ regarding obstruction. In plain English, that suggests there is evidence that people could conclude constitutes criminal obstruction, but that Trump’s saving grace in the law is that he also could not be proven to have colluded with the Russians. Political observers could disagree.”

George and Kellyanne Conway

That point of view appears to be succincty expressed in an op-ed that appeared earlier this week, also in the Washington Post. It’s author was relenteless Trump critic and New York attorney George Conway, who is famously married to one of the president’s closest aides, Kellyanne Conway. According to Attorney Conway, “As for whether the president obstructed justice, that question was always dicey. No one should have been surprised that it raised, as Attorney General William P. Barr’s letter put it, quoting Mueller, ‘difficult issues of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.’ On the law, Barr was probably not wrong to suggest, as he did as a private citizen, that there’s a difference under the statutes between a president destroying evidence or encouraging a witness to lie and a presidential directive saying, ‘Don’t waste your time investigating that.’ But that doesn’t mean the latter can’t be an impeachable offense.”

Conway added that Mueller was a guy who “plays by the rules, every step of the way.” He went on to say that “if (Mueller’s) report doesn’t exonerate the president, there must be something pretty damning in it about him, even if it might not suffice to prove a crime beyond a reasonable doubt.” Beyond the idea of whether or not there is evidence to accuse the president or any of his unindicted associates of anything, Conway indicated that one thing seemed clear:  “If the charge were unfitness for office, the verdict would already be in: guilty beyond a reasonable doubt.”

The fact that the investigation was unable to establish criminal conspiracy with the Russians has been taken in pro-Trump quarters as signifying that the whole Mueller probe was a monumental waste of time and tax-payer money—that, in short, it was, as the president repeated ad nauseam, a witch hunt. But nothing could be further from the truth.

To start with, the investigation indeed established that there was significant Russian espionage and intervention in the 2016 election process. Barr describes the Mueller Report as outlining “the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts.” Barr goes on to say that “the Special Counsel’s investigation determined that there were two main Russian efforts to influence the 2016 election.”

Donald Trump pictured with disgraced collaborators 

Michael Cohen (left) and Paul Manafort

One of these was spearheaded by Russia’s Internet Research Agency (IRA), apparently an intelligence front, which conducted disinformation and social media operations in the US that were “designed to sow discord”—mission accomplished! The other was a hacking operation “designed to gather and disseminate information to influence the election.” According to Barr, “the Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks.”

Whether there was collusion or not is clearly of paramount importance, but shouldn’t we be at least as concerned about the fact that the Kremlin managed to infiltrate US data systems and achieve a significant measure of success in influencing the election process, or at the very least, the campaigns as such? On that count, the Mueller probe was clearly a great success, managing to identify and indict a number of Russian operatives, including military intelligence officers. It also established that, if there was insufficient evidence to charge collusion, there were indeed “multiple offers from Russian-affiliated individuals to assist the Trump campaign.” This raises the question of why organizers of that campaign didn’t bother to report these offers to the FBI, considering that they were being made by a hostile foreign power that was clearly seeking to influence the outcome of a US presidential election process.

There was indeed a “there-there” in the investigation. It rendered the indictment of 34 people including 13 Russians and three companies, as well as gleaning a number of guilty pleas, convictions and useful testimony, some of which included top advisers to President Trump, on charges ranging from interference in the 2016 election and hacking emails to perjury and witness-tampering.  Collusion or no, this is a very big deal.

Obviously, having access to the full report rather than to the attorney general’s four-page interpretation of it would clear up a lot of what remains a mystery to the people of the United States and their congressional representatives right now. Considering the tremendous weight that this information and the investigation have brought to bear on the US political scene and on the hearts and minds of citizens as a whole for the past two years, perhaps the head of the Justice Department should—except for any redaction necessary to preserve the rights of the innocent and the rule of law—consider the possibility that whether or not the rest of the report should be made public isn’t his decision to make. Morally, he should consider it his duty to the people of the United States to provide the highest degree of transparency possible within the law and to lead by taking the stellar example of his two subordinants, exercising the same kind of impeccable ethics and impartiality that they have demonstrated.

It remains to be seen whether that is what he will do. But the president, at least in public, has said that it is solely the attorney general’s decision and that he, Trump, is willing to release the report to the public. In terms of allaying suspicions and doubts regarding this topic among Americans of all political stripes, it is of crucial importance that William Barr do exactly that.

THE WHITE HOUSE AS THE HOME OF WHITE NATIONALISM

In the wake of the Christchurch Massacre last week, it is growing more and more difficult—even for those who would like to un-disingenuously and legitimately give him the benefit of the doubt—not to see US President Donald Trump as a blatant white nationalist. While it may be scary enough to have a white supremacist in the White House, the most frightening part of this assessment is that, for a large part of his far-right following, this very likely comes as good news.

From the outset of his current term in office and during the campaign leading up to it, Trump has tended to cater to the paranoid sensibilities of American xenophobes and to those of a segment of the white population that sees the possibility of its eventually becoming a minority as a threat to what it has come to believe should be the “established order” in the United States of America. The positive idea of diversity that sees the United States as a melting pot of nationalities, religions, ethnicities and races is anathema to this group, and apparently to the president as well, since he encourages the notion among his predominately white Christian base that they are what a “true American” looks like and that he is governing for them and them alone. 

The president’s white-nationalist leanings come as no surprise to most unabashed liberals. This is especially true, for instance, after the president’s dogged defense in 2017 of neo-Nazi demonstrators in Charlottesville, Virginia, who clashed with counter-demonstrators, one of whom, Heather Heyer, was murdered.

While Trump called the killing a horrible thing, he refused to distance himself from the white supremacists who triggered the violence, equating them seamlessly with the counter-demonstrators, saying that there were “many fine people” on both sides of the clash and that one side was as guilty as the other of prompting the incidents. He made the point that, indeed, the white supremacists had a permit to demonstrate while counter-demonstrators didn’t, thus seeking to legitimize the nature of the neo-Nazi demonstration while laying more blame for the violence at the door of the racially diverse counter-protesters.

"Some fine people on both sides"

Whatever medium the president was perusing to reach such a conclusion apparently wasn’t any of the ones other Americans were viewing when they saw white-nationalist demonstrators descending on the quiet college town wearing Confederate flags and swastikas, some packing weapons and holding shields, chanting phrases such as “blood and soil” and “Jews will not replace us” before engaging counter-protesters in fist and club fights that quickly turned into a violent general riot. 

So appeasing was the president’s defense of the neo-Nazis that it prompted a tweet from former Ku Klux Klan “grand wizard” David Duke thanking Trump for his “honesty and courage” in “condemning the leftist terrorists” who opposed the white nationalists in Charlottesville. The outrage that Trump’s statements caused back then spilled over from liberal Democrats into the Republican political community as well. For example, the chairman of the National Republican Congressional Committee, Ohio Republican Steve Stivers, tweeted, “I don't understand what's so hard about this. White supremacists and Neo-Nazis are evil and shouldn't be defended.” Still, even following this incident, many independents and “undecideds” have often been willing to write off the president’s most outrageous pronouncements with the “oh-that’s-just-how-he-talks” defense.

New Zealand PM Jacinda Ardern, empathy above all

Last weekend, after the horrific attacks on two Islamic mosques in Christchurch, New Zealand, Trump ignored a plea from New Zealand Prime Minister Jacinda Ardern on Friday for him to offer “his nation’s sympathy and love for all Muslim communities.” The New Zealand leader had made the request when Trump called to ask her what the United States could do for her country, in the face of an attack on two mosques by a single white nationalist armed with assault weapons, in which 50 people were killed and many others injured.

Trump’s tepid and belated condolences to New Zealand, for what was the worst terror attack in that country’s history, were followed by his almost immediate minimization of the white supremacist threat. Asked by a reporter at the White House, where he was meeting with “the Trump of the tropics”, Brazilian far-right leader Jair Bolsonaro, whether he thought white-nationalist terrorism was a growing threat, Trump responded, “I don’t really. I think it’s a small group of people that have very, very serious problems, I guess.”

In order to separate fact from presidential fiction, one only needs to consult a February report from the respected Southern Poverty Law Center. Its research shows that there are currently over a thousand far-right nationalist hate groups across the United States. This total, the report indicates, is at an all-time high and the think-tank notes that, in 2018 alone, there was an increase in the death toll tied to the radical right, with white supremacists in the United States and Canada having killed at least 40 people. And this reading of the trend is backed up by US Department of Justice and FBI indicators as well.

These reactions are part and parcel of President Trump’s—for him subtle—pattern of behavior that tends to reveal his preferences in responding to acts of Islamic extremism and white-nationalist attacks. Hate crimes carried out by Muslims elicit an immediate and definitive presidential response. Attacks that target Muslims, however, receive belated and/or tepid reactions from Trump, to such an extent that his sincerity is seriously brought into question.

His timing seems often either mindlessly insensitive or intentionally prejudiced. Amid shocked world reactions to the New Zealand Massacre, Trump was tweeting his support for Fox News commentator Jeanine Pirro, whom the infotainment network suspended last Saturday for making an anti-Muslim reference to Congresswoman Ilha Omar of Minnesota.

In the lengthy white-supremacist rant that the New Zealand shooter wrote before carrying out his mass slaughter, he mentioned Trump as “a symbol of renewed white identity and common purpose.” Showing sincere sympathy for all Muslim communities would have gone a long way toward separating Trump from the ideology behind such attacks. Instead, his collaborators in the West Wing, like Mick Mulvaney and Kellyanne Conway had to scramble to do damage control, suggesting that it was ridiculous to describe the president as a white nationalist or to make any connection between the New Zealand mass murderer’s manifesto and Trump’s embracing of a far-right nationalist philosophy, while the president chose to take to Twitter and attack everyone and everything from union workers to France, and even late senator and Vietnam war hero John McCain and McCain’s daughter.

There was little enough evidence already to lend any kind of credibility to Mulvaney and Kellyanne’s ardent defense of the president’s lack of prejudice on this topic. There is, in fact, ample proof to the contrary. From his campaign through the first couple of years of his presidency Trump has, among other things, threatened to surveil or close mosques in the US and bar Muslim immigration, suggested throwing all Syrians out of the country (“they could be ISIS, I don’t know”) and creating a Muslim database to keep an eye on all people of Islamic faith, said that “Muslims hate us” with ‘us’ apparently meaning white Christians, and falsely claimed to have seen thousands of Muslims cheering in the street when the Twin Trade Towers collapsed after Islamist terrorists from Saudi Arabia hijacked American planes and flew them into the iconic New York buildings, killing thousands of people. And these are only a few of the occasions on which the president has sought to stir up indiscriminately anti-Muslim sentiment. 

The truth is that in every opportunity that the US president takes to refer to neo-Nazis as “fine people”, to consider Muslims as a whole somehow suspect, or to refer to immigrants as “an invasion” or as an “infestation”, he is contributing, wittingly or unwittingly to the further radicalization of already extremist white-power and ultra-nationalist segments of society.

Going from being a melting-pot nation, built by immigrants and founded by pilgrims fleeing persecution in their native lands, to being a bastion of closed society philosophy and of racial and religious hatred flies in the face of long-held American principles. As do proposals for barring certain peoples as a whole, or creating walled citadels along the country’s border to punctuate the radical autism of xenophobic policies.

The main question to ask is, what’s so hard about unequivocally condemning violent white-supremacist movements? Unless you agree with them.