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? 

 

CUTTING OFF OUR NOSE TO SPITE OUR FACE

 The Durham probe that former Attorney General William Barr ordered in 2019 is an iconic symbol of a political war being waged in the United States. After 873 days (and counting) of investigating the investigators in the Mueller inquiry into Russian interference in the 2016 elections, John Durham’s search for dirt on those aiding Robert Mueller in his look into any link between Donald Trump’s election campaign and Russian hackers who sought to swing the 2016 results in the former president’s favor has finally led to the announcement of only its second indictment.

William Barr (left) and John Durham

Durham’s probe was billed by both Barr and Trump as a blockbuster investigation that would uncover a plot by top Democrats to undermine the election results that brought Trump to power. Indeed, Trump at one point said that the investigation would reveal “the greatest political crime in American history.”

But after spending 200 more days investigating investigators than Mueller did probing the Russia connection, Durham has been unable to indict any recognizable faces from the Democratic camp or the FBI for impropriety in the handling of the Russian interference inquiry. It was only this past week when his office was finally able to secure a grand jury indictment against attorney Michael Sussman, a specialist in cyber-security, who in 2016 raised his suspicions with the FBI about what he claimed were secretly channeled data allegedly linking the Trump business empire to the Alfa Bank of Russia. Ultimately, the FBI said that there was “insufficient evidence” to bring charges based on the data provided by Sussmann.

But that isn’t the basis for Durham’s indictment of the attorney. Instead, Sussman is accused of telling the FBI’s chief counsel, James Baker, that he was coming forth as a “good citizen” when, according to the Durham probe’s allegations, Sussman was actually working for a technology company executive and for Trump opponent Hillary Clinton’s campaign when he took his story to the FBI. Durham claims, therefore, that Sussman lied to the FBI, which is a felony. Last Friday, Sussman pleaded not guilty to the charge.

The only conviction Durham has been able to achieve to date was of a low-level FBI attorney named Kevin Clinesmith. Clinesmith was indicted for and later convicted of doctoring an internal FBI e-mail memo in order to secure a Foreign Intelligence Surveillance Agency (FISA) Court warrant to investigate Carter Page, a former Trump foreign policy adviser.  In sentencing Clinesmith, Federal District Court Judge James Boasberg—who also was the federal judge presiding over the FISA Court, and whom you might recall as the Republican-appointed judge who in 2016 ordered the release by the FBI to the conservative legal group Judicial Watch of more than 14,000 State Department emails found on Hillary Clinton’s private e-mail server—made it clear that while Clinesmith had committed a serious offense, considering other corroborative evidence presented, the FISA warrant application would likely have been approved anyway, without the attorney’s having presented adulterated evidence. He therefore declined to send Clinesmith to prison, handing him a year on probation and community service instead.

Robert Mueller

The Mueller investigation, for its part, did indeed produce both indictments (34) and solid convictions (including those of five Trump lieutenants), as well as eight guilty pleas with regard to Russian interference in US elections. Mueller made it clear that no indictment of Trump had been considered, for the simple reason that, in accordance with Justice Department guidelines, a sitting president cannot be indicted (not even under sealed indictment). The Mueller Report, which was the culmination of that 674-day probe, did not conclude that there had been no pro-Trump Russian interference in the 2016 elections. On the contrary, the Mueller investigative team indicted thirteen Russians—twelve who formed part of the Fancy Bear hacker team under orders from the Kremlin’s largest foreign espionage agency, the GRU, and who were charged with hacking the Democratic National Committee e-mail server and leaking their communications to the public.

The thirteenth Russian indicted by Mueller was businessman Yevgeny Prigozhin, who was charged with financing the Russian hackers. All were charged in absentia and while it is unlikely they will ever be fully prosecuted in the US, the charges have hindered their travel abroad. A fourteenth Russian questioned by the Mueller investigation was Maria Butina, who posed as a Russian-born gun activist with ties to the NRA. Following her statements to the Mueller inquiry, she was arrested and prosecuted for acting as an unregistered agent of the Russian government under the provisions of the National Security Law, pleaded guilty, and ended up serving six months of an 18-month prison sentence.

All of this came in addition to indictments, during the second Trump impeachment inquiry, of Lev Parnas and Igor Furman, both born in the former Soviet Union, and both associates of Trump’s personal attorney and former New York Mayor Rudy Giuliani. The two were arrested by the FBI in connection with campaign funding violations—more specifically, setting up a shell company to launder a US$ 325,000 donation to the Trump campaign. Through a series of complicated investigations led by Republican campaign watchdog Trevor Potter and by energy sector businessman Dale Perry, it was discovered that both Parnas and Furman were intimately involved in Giuliani’s mission to dig up dirt on then candidate Joe Biden and his son in Ukraine, as well as in Giuliani’s successful attempt to have career diplomat Marie Yovanovitch removed as the US ambassador to that country.

Trump referred to Yovanovitch as being “bad news”. But in fact, Ambassador Yovanovitch had a long history of tackling corruption wherever she found it, and that was one of her priorities in Ukraine.

It is interesting to note that when charges were brought against Parnas and Furman, it was another former Trump lawyer, John Dowd, who became their defense counsel.

Pence, Furman, Parnas,Trump and Giuliani

In other words, while the majority of Republicans seek to bill the Mueller investigation into Russian interference as a political hit job cooked up by Democrats—Robert Mueller is, it should be noted, a lifelong Republican—the probe did indeed produce proof of Russian interference in US domestic affairs and established an at least prima facie association between Russia and Trump loyalists. The Durham Investigation, for its part, has so far not clearly demonstrated its reason for existing, since the two minor indictments produced to date could easily have been achieved without the creation of a special prosecutor’s investigation.

What is most interesting, and sad, about both investigations is that while the judicial bases behind them might be sound—i.e., to root out corruption in the highest spheres of government—the political climate behind them isn’t. As I said earlier, at their root, they are both political skirmishes in a so far cold (or perhaps tepid would be a better word) civil war that is ripping the fabric of America’s two-and-a-half-century-old democratic traditions down the middle.

This is not hyperbole on my part, but the conclusion of a growing number of noted political scientists. When I posited back in 2017 that the US had never been more divided since the actual Civil War, many acquaintances—both Republican and Democrat—on the social media showed skepticism, or openly scoffed at the idea. But since the January 6^th insurrection, many, among both traditional Republicans and Democrats, have come into line with my thinking and are gravely concerned about the fate of US democracy and domestic security in the foreseeable future.

One of those who subscribes to this view of history in the making is Academy and Peabody Award-winning documentary film director Ken Burns. Renowned for his research into such related topics as the Civil War, the Great Depression, World War II, Nazism in Europe, and the populist reign of Louisiana boss politician Huey “The Kingfish” Long, Burns literally views the current post-Trump presidency era as “the most divisive since the Civil War.”

According to Burns, US democracy is imminently endangered by an internal threat stemming from the inability of today’s Americans to agree on even the most basic of facts. There are already, he posits, casualties of war-like proportions as a result of these divisions if we consider that 676,000 Americans have died in the COVID epidemic (more than perished in the 1918 influenza plague, when there was no medical treatment for the disease), mainly because politicians, led by the former president, have so politicized the use of masks and highly effective and readily available vaccines that nearly half of the country’s population remains stubbornly opposed to public health policies enacted to save their lives.

But COVID deaths, 2,000 of them a day at present, are only one grim symptom of how politicians are pitting one broad sector of Americans against another and, in the process, mortally wounding American democratic traditions—as well as killing their fellow Americans. In their 2018 book, How Democracies Die, Harvard political scientists Daniel Ziblatt and Steven Levitsky posit that the breakdown of “mutual toleration” and respect for the political legitimacy of the opposition is a sure formula for murdering democracy. Above all, they point out, it is absolutely necessary for everyone involved in the political process to accept the results of free and fair elections. The basic cornerstone of US democracy is free and fair elections. If you respect even the most basic of democratic tenets, you don’t mess with that. And yet, over the course of the last five years, and especially in the last two, the country’s voting system has taken more hits than a subway turnstile. 

It is worthwhile recalling that they were writing this veritable textbook on how democracies are killed quite early on in the administration of Donald Trump. But their warning that contrary to these basic rules of democratic life were spurious complaints about election outcomes and, graver still, attempts to overthrow the established democratic order and replace it with an authoritarian regime now seems prescient. Their then largely academic proposal has since transformed into a cogent prediction, provided a full two years prior to the January 6^th Capitol insurrection and the perpetuation by Trump’s political cohorts of “the big lie” that has convinced a very large segment of the public that Democrats and President Joe Biden “stole” the 2020 election from Trump. Nearly a full year after that election, Trump keeps calling for the election results to be overturned, thus continuing to feed his most loyal base with a divisive lie that is perpetuating hatred between the two main American political camps.

And just how large is that democracy-dubious base? Polls suggest that more than 50 percent (some pollsters say more than 70 percent) of all Republicans—or about one in four American voters—believe that the 2020 presidential election was rigged and that Democrats in general and President Joe Biden in particular stole the presidency from their far-right populist icon, Donald Trump. As recently as this month, Trump has continued to call for the election to be overturned, thus revitalizing his own lie (or perhaps delusion) among his closest followers and leading them to believe that the system is corrupt, that democracy no longer works, and that perhaps the January 6^th insurrection was the way to go in seeking to “win back their rights and nation.”

Despite this narrative, seldom has representative democracy worked better than it did in the 2020 election. That’s not an opinion. It’s a proven fact. In spite of desperate efforts by Trump and his allies to sully election system credibility, that system and the results it yielded, numerous machine and hand recounts, some sixty court judgments and a Supreme Court rejection have all clearly demonstrated the accusations of Trump and his closest cohorts to be utterly and completely false. Worse still, all of this proof has shown the Trump camp’s machinations to be a ruse designed to fool the gullible within his base—who, it turns out, are incredibly numerous.

Even the long, tortuous, so-called “audit” carried out by the comic book-named Cyber-Ninjas in Arizona couldn’t make Trumpian accusations of voter fraud stick. That ghost-like firm that sprang up out of nowhere, financed with 5.7 million dollars in Trump-supporter donations, allegedly channeled to them mostly through prominent Trump camp figures like lawyer and confessed prevaricator Sidney Powell and disgraced retired Army general Michael Flynn, has had to confess in its final report, leaked to the press this week, that there was no evidence of fraud against Trump in that state’s election process. On the contrary, their meticulous and decidedly partisan look at Arizona’s crucial Maricopa County ended up demonstrating that Joe Biden had actually beaten Donald Trump there by an even wider margin than original tabulations revealed.

And yet, this past week, after unsuccessfully harassing the main states where he lost, Trump turned to places where he won, bullying Governor Greg Abbott of Texas into auditing election results in several cities where the former president is nursing the delusion that he should have done better. Clearly, to any reasonable person’s mind, the election has been over for eleven months now, the result is unquestionable and Joe Biden, everywhere but in Mar-a-Lago, is president of the Unites States.

What is happening right now in the US is tragic, not only for the Nation but also for Western democracy as a whole, particularly because it plays to the narrative of two of America’s staunchest rivals, the authoritarian regimes today governing China and Russia, both of which hold that democracy is a messy, recalcitrant and ineffective form of government that is highly overrated. The Trump era has provided them with ample reason to scoff and they are doing so with abandon. The current situation in America is made to order for their anti-American propaganda machine, because they no longer even have to lie. It really is as bad as they say it is.

It is hard to see how the two and a half-century-old experiment in American liberal democracy can survive when the leadership of one of the two main parties governing it has deformed its definition of “democracy” and molded its entire political platform to suit the whims and power-mad delusions of a single personality, much in the same way that the Nazi Party did in embracing the absolute power of Adolf Hitler. Furthermore, over the course of the last twelve years, the Republican political leadership has basically abandoned its duties—lawmaking and representation of the rights of its constituency—in favor of obstructionist practices designed specifically to keep much needed legislation from passing and, worse still, of political strategies developed to discredit and paralyze its political opponents.

Wyoming Rep.Liz Cheney

An obvious symptom of the GOP leadership’s giant leap into the abyss of authoritarianism is its ostracizing of all fellow Republicans who fail to fall in, rank and file, behind the autocratic figure of Donald Trump. Iconic examples of traditional Republican figures (and true liberal-democratic conservatives) who have fallen victim to this type of ostracism include, the late Senator John McCain, Wyoming Representative Liz Cheney, Utah Senator Mitt Romney, Illinois Representative Adam Kinzinger, Ohio Representative Anthony Gonzalez, and even, to a certain extent, former Vice President Mike Pence, to name just a few. Meanwhile, dangerous fascistoid radicals like Georgia Representative Majorie Taylor Green and Missouri Senator Josh Hawley, who would have once been political pariahs among Republicans, are now party rock stars. 

Georgia Rep. Marjorie Taylor Green

Many expert political observers say that the only hope for the future of American democracy is for the Democratic Party to take advantage of the power that it wields right now—and perhaps not for more than a year to come—to try and shore up democracy, and make it less vulnerable to attack in the future. Especially considering plots in Red states in several areas of the country to ram through laws that will “keep what happened in 2020 from ever happening again.” Considering that the 2020 election has been repeatedly proven to be one of the fairest in history, the underlying meaning of this stated mission is, then, to ensure that elections are skewed to make certain that the GOP has brass knuckles in its glove the next time it steps into the ring with Democrats. 

And it matters not one iota to the current GOP chiefs that in order to win by hook or by crook they will be disenfranchising millions of American voters. On the contrary, their purpose is precisely that.

Missouri Sen.Josh Hawley

But I believe that the only way for democracy to survive in the current climate is for the purge of authoritarianism to come from within the conservative movement itself. And I’m not alone in this belief.

Back in May, some 150 former Republican officials sent an open-letter message to their party warning that if the GOP didn’t break with Donald Trump, they would back the creation of a third party. Miles Taylor, one of the organizers of this new conservative movement within the GOP, said at the time, “The Republican Party is broken. It's time for a resistance of the ‘rationals’ against the ‘radicals’.”

Taylor had already begun to resist Trump’s authoritarian designs while he was serving in the former president’s administration. A Trump appointee and former Bush administration staffer, he served from 2017 to 2019 as chief of staff for the Department of Homeland Security. He eventually outed himself as the Trump administration official who had written a 2018 anonymous op-ed in The New York Times entitled I Am Part of the Resistance Inside the Trump Administration. But the last straw for most of the rest of the signers of the ultimatum, which they entitled A Call for American Renewal, was the Trump-incited January 6^th insurrection at the Capitol.

The signers include four former governors and 27 former members of the House of Representatives, as well as Trump and Bush administration officials, diplomats and former high-ranking party officials. Among the most familiar names are former Republican National Committee Chairman Michael Steele, former National Security Agency chief General Michael Hayden, former homeland security director Michael Chertoff, Republican strategist William F.B. O’Reilly, former Representative Barbara Comstock, former Pennsylvania Governor Tom Ridge, and former Massachusetts Governor Bill Weld.

The most high-profile opponent to the Trumpian takeover of the GOP, Congresswoman Liz Cheney, has so far resisted joining the movement, since she fears splitting the party would hand greater power to the Democrats. But with her effective removal by Trump authoritarians from any position of power within the party, observers feel she could eventually rethink that position and perhaps even end up being an alternative conservative candidate for the presidency.    

This incipient rebellion within the GOP is, to my mind, the only real hope for the future of democracy in the United States. As noted historian John Meacham pointed out in the final days of the Trump administration, politics in America are no longer a matter of two parties debating issues from distinct viewpoints, but of two parties speaking two entirely different languages. And the language of the current GOP leadership is that of personality-cult authoritarianism, a language not so very different from that of Vladimir Putin’s United Russia Party.

True conservatives deserve to be represented by better minds and by genuinely patriotic hearts that put service above self-interest, Nation above party and democracy above personality. If the GOP has leaped permanently into the void of personality-cult autocracy and obstructionism aimed at destroying the opposition no matter what the cost to the Nation and to democracy, then the only hope for the future of democracy in the United States of America lies in the hands of conservatives who either rebel and take their party back from Trump and his cohorts, or in those with the courage to forge an entirely new conservative movement based on the original ethics of the party of Lincoln.

The current cold civil war between the two traditional parties is not a democratic option. The only thing it promises to ensure is that whoever “wins” will end up administrating the crumbling ruins of one of the greatest political systems ever devised.

 

WRECKING BARR

Donald Trump is the granite boulder against which reputations are smashed. William Barr’s is the latest in a long series.

Barr - proved unworthy of his reputation

Prior to his confirmation as attorney general, Barr was thought of by many on both sides of the congressional aisle—despite his obsequious spinning and justifying of criminal behavior witnessed in the Iran-Contra affair under both the Reagan and George H.W. Bush administrations—as a sound constitutionalist and legal scholar, as well as a “straight-shooter” who could be counted on to carry out his duties as the nation’s  highest-ranking law enforcement officer with unyielding adherence to the necessary objectivity and independence of that post. But in light of his performance in handling the Mueller Report, Barr has proven himself to be unworthy of the high regard in which he was previously held.   

Generals Kelly and McMaster - too much, too long

Noteworthy among earlier alleged “adults in the room” who trashed their good names before, far too belatedly, abandoning the Trump camp are generals John Kelly and H.R. McMaster. In both cases, they were broadly seen as patriots and men of good faith who joined and remained in the Trump administration, more than anything else, as a means of guiding a clueless president along a legal and legitimate path in a complex world that he was loath to comprehend, while acting as “damage control” whenever it proved impossible to sway Trump from the designs of his most disastrous policies.

Be that as it may, both men overstayed their usefulness to the United States in this sense and ended up trying, against their better judgment, to justify the administration’s madness rather than frontally opposing it and, eventually, only after sullying what, in both cases, had been stellar records, decided they could no longer remain at odds with their own ethics and resigned. Too late, as it turns out, not to be splashed by the blowback from Trump’s lies and his hostile relationship with the Constitution and the rule of law.

Latest news updates regarding the two-year Mueller investigation and Barr’s presentation of it to the public suggest that the attorney general has forsaken the responsibilities of his office and scotched his good name in the legal and political community by acting, not as the representative of constitutional law and order, but as a partisan Trump surrogate.

A few corroborating facts:

 - On March 24, William Barr prefaced the release of a redacted version of the Mueller Report with a four-page letter, described at the time as “a summary” of the report’s contents, in which he issued the opinion (stated as fact) that the special counsel’s findings demonstrated no collusion by the president and his 2016 campaign team with the Russian government in its interference in the general elections, nor did they demonstrate any attempt by the president to obstruct justice by seeking to squelch an investigation into Russian interference and Trump-team collusion with it.

 - The government pushed this narrative with the president calling the report a “complete and total exoneration” and repeating the words “no collusion, no obstruction” ad nauseam following publication of the attorney general’s four-page tone-setting message.

 - On March 27, Special Counsel Mueller is reported to have written to Barr protesting the attorney general’s roll-out of the report. A long-time acquaintance of Barr’s, Mueller pulled no punches. The fact alone that the special counsel wrote a memo to Barr is a very big deal, since Robert Mueller’s sound reputation as one of the last true “boy scouts” in Washington would have precluded any interference with the attorney general’s handling of the report that, as per protocol, he turned over to the Department of Justice on conclusion, had Barr properly addressed the investigation’s findings. According to an article in The Washington Post, Mueller challenged Barr’s four-page public statement, complaining that it did not reflect the “context, nature or substance” of the report’s contents.

Mueller - not amused

 - The next day, Barr and Mueller are understood to have had a fifteen-minute telephone conversation. And the day after that, Barr wrote a memo to Congress saying that his four-page letter of March 24 shouldn’t be taken as “a summary” of the report. Clearly, this was because he had been unable to convince Mueller that the letter was anything but an attempt to spin the true findings of the report before it was released to the public. Barr knew full well that the vast majority of the US public would never peruse the details of the 440-page report except as chewed up and digested sound bites on their favorite news media—which would have vastly different interpretations across the spectrum between, say, Fox News and CNN.

 - Barr’s intention to continue to set a pro-Trump tone for release of the Mueller Report was apparent in his stalling of its release for over two weeks, while Trump and surrogates, including himself, used the time to hammer away at the no-collusion-no-obstruction narrative and to fabricate a conspiracy theory that the real idea behind the investigation had been to stage “a coup” to bring down the administration.  

 - On April 10, Barr gave Senate testimony regarding the Mueller Report. During that testimony, he lied when asked if Mueller supported his assessment of the report as per his four-page letter of introduction, saying that he didn’t know if Mueller supported it. Clearly, Mueller had already told him both by memo and probably by phone, that he vigorously disagreed with the attorney general’s interpretation, saying that Barr’s letter had created “critical confusion” among the public.

 - Barr finally delivered the Mueller Report to Congress and the public on April 18. But not without holding a pre-release press conference during which he renewed the no-collusion-no-obstruction narrative as if to further establish a pro-Trump tone among those who would never actually read the report, among whom Trump’s staunchest base could almost certainly be counted.

 - Once the report was released, and despite the attorney general’s redactions, it was obvious to any objective observer that Barr had purposely sought to mislead the public regarding the contents and conclusions. Among other things, it was clear that Mueller and his team had found multiple examples of what could be considered collusion—numerous instances of the Russian government offering its help to the Trump campaign and of Trump surrogates demonstrating enthusiastic interest in that help rather that reporting attempts by a hostile power to influence US elections to the FBI—and that the president did indeed seek to obstruct justice but was at least minimally saved from himself by aides who merely ignored and disobeyed his orders, as well as by current DOJ rules holding that a sitting president couldn’t be indicted. The report further and implicitly invited Congress to investigate and, if politically expedient, impeach the president, stating specifically that the investigation in no way exonerated Trump.

As a side note, it is interesting to recall that Barr’s predecessor, Jeff Sessions, faced an uphill battle in his confirmation as attorney general. Sessions was viewed by many as not only a Trump surrogate but also as a long-time political manipulator, a racist bigot and a good ol’ boy with an, at best, ambiguous relationship with the moral high ground. He was expected to be a loyal Trump servant and to do the president’s bidding with no regard for the required impartiality and legal tenets of his office.

Sessions - unlikely adult in the room

Against all odds, however, and no matter what one might think of Jeff Sessions’ civil rights record, he turned out to be a much more mindful and independent attorney general than Barr is proving to be. Sessions incurred Trump’s rage and disfavor by recusing himself with regard to the investigation of ties between Russia and the Trump campaign, because he admitted to having had contact with the Russians.

Sessions maintained the independence of the Department of Justice, even despite overwhelming pressure for him to demonstrate loyalty to the president over loyalty to the nation or to resign. Barr, on the contrary, was practically a shoo-in for the post, despite having written a paper shortly before his nomination the basic premise of which was that sitting presidents couldn’t be indicted and that obstruction wasn’t obstruction if the president committed it (a.k.a. the Nixon defense). Politicians on both sides of the aisle saw Barr as a brilliant lawyer and as a man of law. But since then, he has delighted Trump and his base by proving just the opposite, by basically showing himself to be, in contemporary street vernacular, “Trump’s bitch.”

There can be little doubt that Robert Mueller has held himself to a higher standard in his role as special counsel in charge of the investigation into obstruction of justice, Russian interference in the US election process, and possible collusion between American political agents and the Russian government. Barr, meanwhile, has shown himself to be disingenuous and politically prejudiced to the detriment of the very American justice that he is sworn to uphold.

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.