Sunday, May 20, 2018

New Evidence Shows No Time to End Mueller Probe

      The smoking gun that implicated President Richard M. Nixon in the Watergate cover-up emerged two full years after the break-in itself and more than a year after the appointment of Archibald Cox as special prosecutor to take over the case from the U.S. attorney's office. With that history in mind, no one should be surprised that special counsel Robert Mueller has been investigating the Trump campaign's connections with Russia for a full year now without having gotten to the bottom of this pit of Trump-style duplicity and obfuscation.
      Nixon marked the one-year anniversary of the Watergate investigation with a plea to shut it down. "I believe the time has come to bring that investigation and the other investigations of this matter to an end," Nixon urged on January 30, 1974, in what proved to be his final State of the Union address to Congress. "One year of Watergate is enough!"
      President Trump and his vice president, Mike Pence, channeled Nixon in making the same plea for an end Mueller's investigation. "I think it's time to wrap it up," Pence declared in a n interview with CNN [May 10] after claiming somewhat disingenuously to have "fully cooperated" with the investigation. Trump marked the actual one-year milestone [May 17] with a mocking tweet: "Congratulations America, we are now into the second year of the greatest Witch Hunt in American History."
      Mueller himself had no reactions, but senators from both parties batted the White House's line away. "That's not his call to make," South Carolina Republican Lindsey Graham said of Pence's plea. Senate Democratic leader Chuck Schumer used a floor speech to declare Mueller's investigation "not a witch hunt" and to denounce the efforts by conservative media and "extreme" elements in the Republican Party to "distract from the special counsel's investigating."
      Inconveniently for Trump, new evidence emerged only two days after his tweet  in an article in the New York Times showing that his campaign entertained efforts to influence the U.S. election not only from Russia but also from an emissary purporting to represent Saudi Arabia and the United Arab Emirates. It turns out that Donald Trump Jr. was meeting at Trump Tower in summer 2016 not only with Russian emissaries offering dirt on Hillary Clinton, but also with an adviser to the UAE's Crown Prince Mohammed bin Zayed Al Nahyan and an Israeli social media specialist offering help for Trump's then lagging-in-the-polls presidential campaign.
      Trump dissembled about the Russian meeting in a statement that Trump helped draft from the Oval Office. But Junior's email traffic eventually confirmed the purpose of the June 9 meeting and forced him into the fallback position that nothing ever came of it. Junior has settled more quickly on that same position in regard to the Aug. 3 meeting with the Gulf states' emissary George Nader and the Israeli social media practitioner Joel Zamel. Alan Futerfas, a lawyer representing Junior, told the Times that Junior recalls the meeting, but that after listening to the pitch Junior "was not interested and that was the end of it."
      Junior's effort to fashion an innocent ending for the two disclosures brushes over the damning fact that he took the meetings in the first place instead of responding, indignantly, that federal law prohibits foreigners from contributing to a campaign for federal office. His other defense, modeled after Nixon's famous advice in the Watergate investigation, is a failing memory.
      Transcripts of Junior's interview by the Senate Judiciary Committee released last week [May 16] show that he answered 171 times with the impossible-to-cross-examine reply, "I don't recall." His lapses of memory included an inability to recall the individual with a blocked number that he called to report on the meeting — thus, avoiding the evident implication that he called his candidate-father himself. Rep. Eric Swalwell, a California Democrat on the House Intelligence Committee, aptly commented on CNN that "I don't recall" was "code for Yes."
      Meanwhile, the Republican-majority Senate Intelligence Committee was underscoring the reasons for the Mueller probe to continue by endorsing the U.S. intelligence community's finding that Russians attempted to influence the 2016 presidential election. By now, the hyperpartisan House Intelligence Committee is the only governmental entity — apart from the Oval Office — resisting this conclusion. The evidence of Russia's active social-media campaign in Trump's behalf is damning, but not enough to move the administration or Republicans in Congress toward fashioning legislation to prevent a recurrence.
      The Oval Office-inspired clamor for Mueller to "wrap it up" shows no immediate sign of receding, however illogical. One of my journalist friends noted on Twitter that Watergate was not the only special counsel investigation to last more than a year. "The Whitewater investigation lasted six years & the Iran/Contra probe lasted four," former New York Times reporter Steven Greenhouse noted on Twitter. He called Russia's interference in the 2016 election and the possible collusion "far more serious matters" than those and noted that Mueller's supposed witch-hunt has already resulted in five convictions without also mentioning the pending indictments of the accused Russian meddlers.
      Mueller's investigation gained judicial endorsement when a federal judge last week [May 15] rejected the plea by Trump's indicted former campaign chair Paul Manafort that his indictment went beyond Mueller's scope of authority. Judge Amy Berman Jackson underscored the charge to Mueller to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign." With more smoke emerging day by day, Mueller deserves encouragement not to wrap things up but to document the full story of foreign interference in Trump's election, however embarrassing that may be to the candidate who benefited.

Saturday, May 12, 2018

On Blue Slips, Republicans' Hypocrisy Is Showing

      President Obama had been in office for less than two months when the Senate's Republican minority sent him an earnest letter imploring him to take steps what the letter called the "needlessly acrimonious" process of federal judicial appointments. The letter, signed by all 41 GOP senators, urged the president to consult with senators on judicial nominations and promised to block action on any Obama nominee who was not approved by senators from the nominee's home state.
      The letter's oblique reference to the Senate's long-established "blue slip" procedure cast "the principle of senatorial consultation (or senatorial courtesy)" as part of the Senate's "unique constitutional responsibility to provide or withhold its Advice and Consent on nominations." That was then, but this is now. Two of those who signed the letter, the Senate's GOP leader Mitch McConnell and the current Judiciary Committee chairman Charles Grassley, are pronouncing last rites for the blue slip procedure so that a Republican president can pack the federal judiciary without a semblance of bipartisan comity.
      The blue-slip procedure holds up Senate action on a president's judicial nominees until senators from the nominee's home state return a blue slip of paper assenting to the nomination. It is a custom, not a Senate rule much less a constitutionally prescribed requirement, but a custom long followed in a body that requires a measure of collegial courtesy to get some of its work done.
      Grassley took to the Senate floor this week [May 9] , however, to denounce the blue slip procedure as an extraconstitutional limitation on the president's Article II power to nominate candidates for lifetime seats on federal courts. Neither Grassley nor McConnell is known to have uttered any doubts about the procedure when they honored and practiced it to bottle up some of Obama's judicial nominations during his years in the White House.
      The double standard on this issue, sad to say, extends beyond the ignominious Senate Republicans to the gadfly journalist David Lat, who opined in The New York Times this week [May 9]: "Good riddance to the blue slip." Lat, a personal friend despite our ideological disagreements, conceded in reply to my question that he could not recall writing about the issue back when Republicans wielded it against Obama.
      Lat now admits that Republicans "abused" the procedure and casts his belated criticism as aimed at public rather than partisan interests. The blue slip procedure hurts the federal bench by leaving judicial vacancies unfilled and unfillable, he says. Its demise may benefit Republicans today or Democrats tomorrow, but the federal judiciary will be "the true winner" in the long run.
      Given current conditions, however, Lat is completely off point. Republican obstructionism in the final year of Obama's presidency left a record number of federal court vacancies as he left the White House. Now, Trump is choosing nominees at breakneck pace. A 61-page report by Judiciary Committee Democrats released on Thursday [May 10] details the Republicans' thus-far successful "efforts to stack the federal courts" with right-wing ideologues. The report decries the "degradation" of the confirmation process so as to limit any true deliberation.
      Grassley has changed the previous practice of scheduling only one circuit court nominee at a time in favor of allowing two circuit court nominees along with multiple district court nominees all on the same day. The Democrats note that stacking nominees hampers senators' ability to study background materials or thoroughly question nominees. After hearings, judges are confirmed "as quickly as possible, without thorough review" — with floor votes on average only 20 days after committee action.
      Now, the Republicans are moving to short-circuit floor procedures as well by proposing to limit debate on district court nominees to two instead of 30 hours once the Republican majority votes to invoke cloture. The resolution introduced in December by Oklahoma Republican James Lankford is awaiting consideration in the face of a strongly worded letter from civil rights organizations opposing the move.
      Lat professes to be agnostic about the nominees who are being rushed into lifetime tenure through this process. Most court cases would come out the same way regardless of the judge's politics, he argues. The short answer to that argument: Neil Gorsuch and the frozen truck driver.
      Clearly, Trump, Senate Republicans, and Trump's political base are counting on his judges to shift federal courts away from protecting, for example, LGBT rights  and toward favoring companies in disputes over regulatory policies protecting consumers, workers, and the environment. The Democrats' report underscores the contrast between Obama's judges and Trump's. Obama's judges represented the full diversity of America: 52 percent of district court nominees, persons of color; 52 percent, women. Trump's vision appears to be a federal judiciary of white men: only 8 percent of district court nominees are persons of color and only 24 percent women.
      One final point: the president who is so intent on reshaping the federal judiciary has little respect for the rule of law or the goal of impartial justice. The candidate who attacked the Mexican-American judge in the Trump University case is now the president who attacks judges who rule against his policies — as many have done. Contrary to Lat, the federal judiciary will not be the winner if Trump is given an even freer hand in choosing federal judges. 

Saturday, May 5, 2018

On Hush Money, Trump Tries to Change Subject

      President Richard Nixon famously tried to deflect the talk of impeachment in fall 1973 with an eminently quotable declaration of innocence in a televised news conference with the nation's newspaper editors. ""People have got to know whether or not their President is a crook," Nixon declared. "Well, I'm not a crook."
      Nixon was facing accusations of political espionage and obstruction of justice far more serious than stealing from the government's cookie jar, but "I'm not a crook" was the dominant sound bite on the network newscasts that day and in newspaper headlines the next day. Nixon's effort to change the subject failed in the end only after the Oval Office tapes confirmed his deep involvement in the Watergate cover-up.
      President Trump and his new wartime consigliere Rudy Giuliani appear to be borrowing from Nixon's subject-changing playbook to try to get rid of the controversy over Trump's alleged sexual affair with porn star Stormy Daniels a decade ago. For weeks, Trump had been denying the affair and in addition denying any role in the $130,000 hush-money payment to Daniels from his lawyer Michael Cohen three weeks before the November 2016 election.
      Giuliani went off on a completely different tack this week [May 2] by announcing to Fox News' Trump-loving host Sean Hannity that Trump actually had reimbursed Cohen for the payment. Giuliani's claim, within days after Trump added him to his White House legal team, directly contradicted Trump's and Cohen's previous statements that Cohen had paid the money himself without ever having been reimbursed directly or indirectly by Trump or the Trump organization.
      Any method behind Giuliani's startling claim appears to have been his specifying that Trump paid Cohen back from personal funds, not from his campaign treasury. "No campaign finance violation," Giuliani told Hannity. "Zero," he added with a wide Cheshire-cat grin on his face.
      Hannity appeared to be totally satisfied. "I didn't know," he said matter-of-factly without noting the complete contradiction of Trump's prior statements. But legal experts on other cable news channels, CNN and MSNBC, pounced viciously on Giuliani's statements as implicating rather than exonerating Trump and Cohen.
      From the initial disclosure, campaign finance experts viewed Cohen's payment as a campaign-related expenditure aimed at keeping a lid on Daniels' accusation at least until after the election. On that premise, the nonpartisan Campaign Legal Center filed a complaint with the Federal Election Commission (FEC) charging Cohen with a $130,000 contribution to Trump's campaign, well in excess of the $2,700 limit on individual contributions under federal law.
      Appearing on CNN with host Don Lemon, former Clinton White House counsel Jack Quinn noted that Giuliani's seemingly exculpatory statements were completely off point. "'We never used campaign funds,'" Quinn said, paraphrasing Giuliani. "That's not the issue. That was never the issue."
      Giuliani also tried to depict the hush-money payment as aimed at sparing Trump's wife Melania from embarrassment rather than protecting Trump's candidacy. With no regard for the evident implausibility, Giuliani went on in any event to contradict himself in a later appearance on Fox and Friends. "Imagine if that came out on Oct. 15, 2016, in the middle of the last debate with Hillary Clinton," Giuliani said, making the hush money's campaign-related purpose evident.
      For FEC purposes, Trump's eventual reimbursement to Cohen is meaningless for the lawyer's legal exposure. FEC regulations make clear that a loan to a campaign is subject to the same limit as a contribution: "A loan that exceeds the contribution limitations of 52 U.S.C. §30116 and 11 CFR part 110 shall be unlawful whether or not it is repaid."
      Far from exonerating the president, Trump's previously undisclosed reimbursement puts him squarely in legal crosshairs. If campaign-related, the expenditure needed to be included in spending reports with the FEC: it was not. If a loan or advance from Cohen, the debt needed to be included in Trump's June 2017 financial disclosure form: it was not.
      Admittedly, the future of Trump's presidency is unlikely to hinge on violations of federal disclosure laws. But Giuliani added further to Trump's legal exposure with a new explanation of the president's decision to fire FBI director James Comey. Trump had muddied those waters months ago, first by linking his decision to Comey's supposed mishandling of the campaign-time investigation of Clinton's email server and then by acknowledging the connection to the special counsel's Russiagate investigation.
      In the newest version of events, Giuliani claimed that Trump decided to fire Comey when the FBI director refused to make a public declaration that Trump was not a target of the Russiagate investigation. With a stronger link to the special counsel's investigation, the firing seemingly strengthens the case for charging Trump with obstruction of justice, if not in an indictment at the least in Robert Mueller's final report.
      Practicing lawyers who appeared on CNN or MSNBC appeared to be unanimous in viewing Giuliani's comments as an unforced error by a spotlight-loving politician. Giuliani insisted, however, that he made the statements after conferring with Trump and with the president's blessing. In the end, the episode gives Trump's critics this consolation: Trump and those around him are simply too incompetent to pose a lasting risk to American democracy, despite their worst efforts.