SUBPOENA? DON’T MAKE ME LAUGH!

 

One of the many rules of civilized government for which the former Trump administration has demonstrated authoritarian disdain is the power of Congress to subpoena both material evidence and witness testimony pertaining to the investigations of its committees and subcommittees. A hallmark of the Trump regime’s former and continuing authoritarianism has been its utter disdain for the three-branch system of checks and balances to guarantee the integrity of representative democracy.

And nowhere has that disdain been more derisive than in the refusal of Trump administration officials and former Trump aides to comply with congressional subpoenas. Indeed, Trump’s attorney general (clearly Trump’s, not the nation’s) William Barr scoffed at threats by Speaker of the House Nancy Pelosi to cite Trump officials including himself for contempt of Congress, actually daring her to go ahead. It was a “make my day moment” for a Justice Department placed by its chief at the service of one man rather than that of the nation.

The fact is that, up to the time of this new era of anti-democratic decay, mutual compliance among the three branches of government has been largely based on common respect and on everyone’s being on the same page when it came to the importance of maintaining the sanctity of the democratic process. And the forty-four men who preceded Trump in office, though some more compliant than others, understood that, in the end, the main duty of their administrations was to protect and serve the democratic institutions on which the United States was founded. In short, to hold sacred the provisions of the US Constitution. Not even Richard Nixon was willing to throw the baby out with the bathwater and resigned rather than face impeachment.

But the Trump era has been, and continues to be—since one would have to be an eternal optimist, or would have to live in a fantasy world even more clueless than that of “the base” itself, to think that the Trump era is over—the greatest test since the Civil War of American democracy’s resilience in the face of internal threats to its integrity. Trump and his political cohorts have shown utter disregard and disrespect for the Constitution and for the time-honored traditions of American democratic and patriotic zeal, even to the extent of flouting the most basic tradition of all: the peaceful transition of power and acceptance of the outcome of free and fair elections. They have gone beyond anything Americans could ever have imagined in their worst nightmares by actually seeking to incite and then seeking to excuse an insurrection aimed at toppling the established order. 

Anyone who is still asking if “we might be in danger of a constitutional crisis” isn’t paying attention. We are in the midst of one. We have been ever since the former president refused to concede his loss of the 2020 election and made the seditious decision to incite his followers to go to Congress and remind the vice president, in his role as president of the Senate, where his loyalties should lie—clearly not with the United States, but with Trump World.

The idea of any of the anti-democratic actors in Congress and in the Executive Branch who were behind the January Sixth Insurrection (which is how, if historians are honest, it should be remembered in the history of the United States) not just being cited for, but being convicted of contempt of Congress for refusing to obey a congressional subpoena seems naïve to say the least. Even prior to the Trump regime, compliance with congressional subpoenas was pretty much based on the honors system. And in Washington, the threat of someone’s being charged with contempt has been, over the last several decades, barely more of a deterrent to non-compliance than a parking ticket.

Congress in theory has the faculty to impose fines and jail-time for contempt. But the sergeant at arms no longer has a calaboose in the Capitol, and Congress hasn’t done so against a government official since the 1920s and 1930s, when those who were cited basically got a slap on the wrist. “Civilians” are another issue altogether. Congress famously jailed and fined members of the Hollywood acting, producing, directing and writing communities during the McCarthy communist witch-hunt in the mid-1900s, whenever those called to testify refused to go before Congress or refused to rat on their colleagues.

The sentencing of the Hollywood Ten to a year
in prison rocked Hollywood for years to come.

The most iconic case of that dark era in American politics was that of the so-called Hollywood Ten. In that case, the House voted 346 to 17 to cite ten Hollywood writers, directors, and producers for contempt. These ten men, including Albert Maltz, Dalton Trumbo, John Howard Lawson, Samuel Ornitz, Ring Lardner, Jr., Lester Cole, Alvah Bessie, Herbert Biberman, Edward Dmytryk, and Robert Adrian Scott, refused to cooperate at McCarthy’s anti-communist hearings, when the House Un-American Activities Committee was probing communist influence in the film industry.

Although the ten said in their defense that they were only defending their First Amendment right to free expression by refusing to answer inappropriate questioning about their political affiliations, the Supreme Court upheld the congressional contempt conviction and they were sentenced to a year in prison. This was clearly an abuse of congressional powers and a legal travesty that led to an unprecedented level of self-censorship in the motion picture industry and to the black-listing of anyone with even vaguely left-wing views. That climate of suspicion and terror lasted in Hollywood from the late 1940s until the 1960s, during which time dozens of lives and careers in the film industry were ruined.

But no such stricture has been in evidence within politicians’ own community for a very long time. This has probably been the case because issues among them are less about the law and legal procedures and more about not doing something to members of another party that they will be able to do back to you when their party is in charge. The great difference is, however, that while the so-called Red threat to American democracy was, by and large, manufactured in the fevered minds of far-right zealots, the threat to democracy that the country is facing today is quite real. It is, indeed, a clear and present danger to constitutional democracy.

Bannon

Getting down to brass tacks, this is what’s happening: The House Select Committee investigating the January Sixth Insurrection has sought to issue subpoenas to former Trump officials including former White House Chief of Staff Mark Meadows, Defense Department official Kash Patel, one-time White House adviser (and Trump Rasputin) Steve Bannon, and former Deputy Chief of Staff for Communications Dan Scavino, calling on them to testify regarding the events of January 6^th of this year. Trump has sent a letter to all of these men calling on them to simply ignore the subpoenas.

So far, none of them has complied with the subpoenas to hand over related documentation and they have now been scheduled to testify before the committee next week, after missing a documentation compliance deadline set for last Thursday. Scavino has, in fact, taken his former boss’s non-compliance order so seriously that he has been living like a fugitive, holing-up at an unknown location so that he can’t be served the subpoena.

Nor does Bannon’s claim of “executive privilege” hold water, because he had long since left the Trump administration by the time of the events of January 6, 2021, but was nevertheless alleged to have been in contact with the former president, encouraging him to push the storming of the Capitol.  

The watch word here, in general, is “privilege”, executive privilege to be precise, which Trump claims to still command and which he is invoking as the reason for urging his former aides not to comply with the probe. But does executive privilege apply in Trump’s case, or in the case of any former president?

While Trump sycophants are seeking to make a case for it, constitutional law experts apparently agree that Trump has no executive privilege. Privilege, in fact, doesn’t really belong to the president—any president—but is a faculty of the United States of America, which, as such, is only exercised by the current president. A former president may offer an opinion to the incumbent executive regarding questions of privilege during his former administration, but he has no power whatsoever to compel the current president to conserve that privilege, period. And even less so if that privilege is being used to cover up potentially criminal activities.

But here’s the rub. In modern times—or at least since the McCarthy era—Congress has all but relinquished its power to invoke its faculty for punishing “inherent contempt” directly, even though, under federal law, it can fine offenders up to a hundred thousand dollars and/or send them to prison for a year, instead referring any and all citations of criminal or civil contempt of Congress to the courts. The problem with that is that the legal procedures involved are notoriously slow.

McGahn - "Crazy shit"

For instance, when former Trump White House Attorney Don McGahn was subpoenaed to testify before Congress after it was revealed that he had told other Trump aides that he was refusing to do all of “the crazy shit” Trump was ordering him to do—including an attempt to sack special investigator Robert Mueller—Trump immediately invoked “executive privilege” and blocked the attorney from testifying in Mueller’s probe into Russian interference in the 2016 elections. The House sued to get McGahn to testify, but the ensuing legal battle bounced around in the courts for a total of 25 months before, finally, in June of this year, the attorney testified behind closed doors, far too late, obviously, to do any good in stopping Trump from doing even more “crazy shit”, as witnessed by the events of January 6^th.

This doesn’t bode well for getting former Trump aides to testify in the current probe, since the House is playing “beat the clock” with mid-term elections to take place in November of next year. Why? Because if the GOP manages to take over the House, which well they could, the January 6^th investigation will be dead in the water.

There are those, including Senate Majority Leader Chuck Schumer, who want to bring back undiluted “inherent contempt” action in Congress. And constitutional experts indicate that the only thing keeping that from happening is majority will.

Constitutional law expert Kia Rahnama has written: “…(T)here is clear legal precedent that all but endorses such power. The Supreme Court has consistently analogized between the congressional contempt power and the judiciary’s contempt power. For example, in McGrain v Daugherty (1927) the (Supreme) Court was asked to review whether an unsworn committee report could form the basis for a warrant issued by a Senate investigation subcommittee; the Court agreed that Congress had that power because the courts of law followed the same practice. In Juney v McCracken (1935), the Supreme Court clearly stated that the power of Congress to punish for contempt is ‘governed by the same principles as the power of the judiciary to punish for contempt.’ Similarly, in Kilbourn v Thompson (1880)—concerning Congress’s impeachment powers, which follow the same quasi-judicial procedures as contempt proceedings—the Supreme Court stated that Congress should be able to conduct investigations ‘in the same manner and by the use of the same means that courts of justice can in like cases.’ The Court then, in dicta, stated that this would logically give Congress the power to punish by ‘fine or imprisonment,’ the same options being available to courts.”

The only question, then, appears to be, will Democrats in general and the Biden administration and attorney general’s office in particular, make the hard decisions necessary to get democracy back on track, and quite possibly save the United States from authoritarianism, at the possible expense of their political careers? Or will they dissemble, as they have to date, in the face of Donald Trump’s assault on democracy and of the authoritarian designs at work in the GOP? 

 

THE MUELLER REPORT—AS I SEE IT

During the highly divisive debate over the past two years to which the Department of Justice investigation into presidential abuse of power, obstruction of justice and conspiracy with a hostile foreign power has given rise, moderates on both sides have cautioned their more radical peers to stop trying to second-guess Special Counsel Robert Mueller and wait for his report. Wait, we have, but the release of the report this week holds out no promise of an end to the discussion. On the contrary, it opens up new questions on which defenders of the two juxtaposed positions regarding the latest US administration are bound to bitterly clash.

When then-Attorney General Jeff Sessions told Donald Trump in May of 2017 that prosecutor Robert Mueller was being appointed by the DOJ to look into allegations of obstruction and collusion, the president is reported to have said, “This is terrible. This is the end my presidency. I’m fucked!” The best one could surmise about such statements is that the president might have been unwarrantedly paranoid about the legal process within the US justice system—considering his unfamiliarity with the Constitution, Federal law or the truth. But it would appear, rather, that Trump was genuinely worried about how exposed he was to such an investigation because there really was a “there there” under these headings.

The 400-page Mueller report indeed confirms a “there there”, despite Attorney General William Barr’s best efforts to downplay it, to the chagrin of Republicans and Democrats alike. The Republicans, because it implies that the Mueller Report is not an end to a controversy, but just the beginning. The Democrats, because Special Counsel Mueller has effectively punted to them, and how they receive the ball and run with it is likely, one way or another, to affect their performance in the 2020 elections.

I received the report through a friend in New York while it was still hot off the press and have galloped through it since then. I’m a slow and careful reader, so I’m sure that I’ll have more to say on this investigation in the future. But my first look has led me to certain concrete preliminary conclusions that, for what they’re worth, I am sharing below. But one of the main ones is that no matter how carefully the investigation was carried out or how many truths it has uncovered, the GOP is bound, by and large, to continue to contend that it isn’t what you know but what you can prove (or that it’s all about the privileges the office of the president provides), while Democrats will argue that the report reveals exactly what they expected it to reveal and that if the president isn’t indicted it’s only because, under the law, he can’t be.

Here are a few other first impressions I’ve formed in scanning the redacted Mueller Report:

 - The US media, which the president and his base have gone out of their way to insult and try to discredit, have done their job admirably with regard to the misdeeds of the Trump administration and of the president himself. My main reason for arriving at this conclusion is that little if any of the special counsel’s report comes as a surprise to anyone who has been closely following the mainstream news. Papers like the The New York Times and The Washington Post have done a particularly good job of reporting over the past couple of years, as have magazines like The New Yorker and The Atlantic, and news sites such as Politico and The Daily Beast, among others.

 - The Mueller Report is not the end of anything, but the beginning. In one passage of the report the special counsel practically extends an invitation to Congress to investigate further and possibly impeach the president. According to legal experts making statements to the media the day after the report’s release, there appear to be more than a dozen potential prosecutions arising from the report. And Mueller has alerted other departments and agencies to them.

 - Since receiving the Mueller Report, Attorney General William Barr has sought to mislead the country about its contents. In his four-page preliminary summary of the report and in the press conference that he held on its release, he carefully trimmed his conclusions to leave out “the bad stuff” and to concentrate on vindication for the president. He even went as far as to give his own opinion with regard to the “obstruction and collusion” issues, with an eye toward prejudicing the GOP base in full favor of Trump and toward undermining the morale of Democrats and some Republicans who were hoping for conclusive evidence of both things. Barr’s ministrations on behalf of Trump were inconsistent, we now know, with the contents of the report.

In this sense, and combined with his unfounded allegations of deep-state “spying” on the 2016 Trump campaign, Barr is showing himself to be precisely what skeptics thought him to be when he took over from former AG Jeff Sessions: a Trump “hired gun”, a legal eagle with clear partiality and at the personal service of Donald Trump, not a true attorney general serving the interests of the people of the United States as a whole. Those who thought Barr was “a straight-shooter” or an impartial purveyor of balanced justice will be disappointed. But those of us who were aware of his past actions in government know that his specialty is obfuscation.

Indeed, it was Barr (along with other colleagues), who was one of those called in as a “cleaner” during investigation of the Iran-Contra affair under the administration of George H.W. Bush. Those investigations were being handled by Independent Counsel Lawrence Walsh. Walsh, like Mueller, was a Republican who had earned a well-deserved reputation for professionalism. The job for which Barr and his associates were brought in was the effective short-circuiting of that probe into “conspiracy among the highest-ranking Reagan administration officials,” which included by then President Bush. And they did their job well, conjuring up ways to suppress evidence, and thus shield top officials like Defense Secretary Casper Weinberger—co-defendant along with six others in the investigation— and, indeed, Presidents Reagan and Bush. Bush would eventually issue highly controversial pardons to the seven defendants, thus effectively halting Walsh’s probe and the legal jeopardy to which he and Reagan were exposed in its tracks.

- The Mueller report could not establish that the Trump electoral campaign directly colluded with the Russian government to subvert the 2016 presidential elections so as to swing them in favor of Trump. But it wasn’t for lack of trying. The report indicates that the Russians repeatedly reached out to the Trump campaign and that campaign officials including Trump’s son, Don Jr., did indeed show interest in the Russian overtures. This in itself is at least ethically questionable behavior, since a more politically savvy and democratically honest team would have immediately made the candidate aware of what was going on and urged him to go to the FBI to let the agency know that Russian intelligence was seeking to influence the outcome of the election. The report indicated that Don Jr. wasn’t charged for his role in seeking Russian contacts because his testimony demonstrated that he truly wasn’t aware that what he was seeking to do might be a felony. In other words, we can infer from this that Trump’s son was deemed too stupid and ignorant to be charged.

Furthermore, despite the president’s insistence that he was “joking” when, during a campaign rally, he said, referring to the controversy over Hillary Clinton’s use of a private Internet server while she was secretary of state, “Russia, if you're listening, I hope you're able to find 30,000 emails that are missing,” the report indicates that it wasn’t more than five hours until Russian agents were at work seeking to hack their way into the computers of Hillary Clinton and, eventually, the Democratic National Committee (DNC).

 - There was indeed, according to the report, Russian intervention in the 2016 elections. It led to the Mueller team’s indictment of a dozen Russian military intelligence agents. Collusion or no, this is a topic of grave concern to the country’s security, and one that is getting way too little attention, mainly because if the president admits that Russian intervention in US domestic affairs is a major problem that requires immediate action, it will be a tacit admission that his performance in the popular vote, which he lost by nearly three million votes, may have been even worse than at first believed.

 - The Mueller Report does not say, as the president and AG Barr have sought to convince the public, that there was no obstruction and/or attempted obstruction of justice on the part of Trump. It merely says that Department of Justice guidelines dictate that no sitting president can be indicted. If not, independent legal experts indicate, there are at least eleven examples of attempted obstruction with which Trump could be charged. And former federal prosecutor and legal analyst Jeffrey Toobin told CNN that under federal law, attempted obstruction is the same as obstruction because it indicates a willingness to subvert and influence the outcome of legal proceedings.

 - Which brings me to a bottom-line conclusion of the report: namely, that, thanks to the adults in the room among Trump’s team and the GOP, the system worked to keep the president somewhat more in check than he otherwise would have been, particularly as regards obstruction of justice. What can be inferred from Mueller’s report is that collusion was avoided and obstruction contained because a number of Trump team members disobeyed Trump’s orders. In other words, they saved Trump from himself, and in the process, preserved the rule of law. The highest-profile case of this was seen in testimony by former White House Counsel Don McGahn whose lengthy presentation before investigators provided major insight into a paranoid and dysfunctional administration in which he consistently stood up to the president to keep him from breaking the law or getting others to do so.

The importance of McGahn’s testimony before the Mueller investigation team is clear from the fact that the president is now railing against the former White House counsel, saying that McGahn painted a distorted picture of the Trump administration. It is more likely, however, because McGahn was right on the money that he is now a target of the president’s rage.  As an unnamed White House source told The Washington Post, “If anything, Don (McGahn) saved this presidency from the president. If Don had actually gone through with what the president wanted, you would have had a constitutional crisis. The president’s ego is hurt, but he’s still here.”