Friends,
Happy Thursday. This edition of the Lens is going to focus, almost entirely, on a New York Times article posted Tuesday entitledIntimidation, Pressure and Humiliation: Inside Trump’s Two-Year War on the Investigations Encircling Him. I strongly suggest you read the entire article, however, I have pulled out the most salient information for your consideration. As you digest the series of events in question ask yourself: what is obstruction of justice?
Let’s dig in.
Investigating Trump
I am not going to be hyperlinking because the following is a summary of the aforementioned article. It also includes my own commentary.
Let’s start with the breaking news.
Late last year, President Trump asked Matthew G. Whitaker, the acting attorney general at the time, if Trump-appointed US Attorney for the Southern District of New York, Geoffrey Berman, could be put in charge of investigations into porn star hush money payments made by former Trump attorney Michael Cohen. Whitaker, who told associates his role was to “jump on the grenade” for the President, did not take action because Berman had already recused himself.
Let’s stop here and reflect. The President told the acting AG he wanted his man to take over an investigation in which he is an unindicted co-conspirator, presumably, to limit its scope or halt the investigation all together.
Ask yourself: obstruction? Maybe.. maybe not, but nothing came of it so let’s give the President the benefit of the doubt on that one.
Now, to understand the whole story we have to take a step back. Trump, since he took office has publicly attacked the validity and ethical standing of the investigation into Russian election interference 1,100 times.
Pause here. The President of the United States, the most powerful man in the world has single handedly engaged in a sustained public relations campaign to discredit an independent law enforcement investigation into himself and his associates.
Ask yourself: obstruction? I’d say yes. But the President’s lawyers would say well it’s just his opinion, it’s not action. No action, no crime. My response to that would be presidential declarations, put out via twitter, are, in and of themselves, actionable.
But, again, he is the President, and he does have wide ranging executive powers and privilege so let’s, once again, give him the benefit of the doubt.
What about his (attempted) actions?
· The President personally asked James Comey to drop the investigation into former national security advisor Mike Flynn who had compromising contact with Russians. Comey refused, and Flynn later pleaded guilty to lying to the FBI about said contacts.
· The President asked former Deputy Attorney General Rod Rosenstein to cite Russia as his reasoning for recommending Trump fire Comey. Rosenstien refused. So, instead, Trump, on national TV, admitted he fired Comey, in part, because of the Russian investigation.
· Trump fired Attorney General Jeff Sessions after expressing displeasure with the fact Sessions had rightfully recused himself from the Russia investigation and therefore it could not cutail it.
· Trump directed White House Counsel Don McGahn to fire special counsel Robert Meuller a few weeks into the investigation. McGahn refused.
· And now, most recently, the President asked former acting Attorney General Matthew Whitaker to put Trump appointed SDNY AG Geoffrey Berman in charge of the Cohen investigation.
If Rosenstein, McGahn or Comey each of whom refused President Trump’s orders had faltered, we may not know what we know today and we may not have the capability to know what we will find out soon when Meuller releases his report.
Any one of those attempts to interfere with the investigation could be waved off as bad judgement or an impulse rightfully checked by senior staff. But taken together, along with the 1,100 public attacks on the special counsel, constitute a direct, targeted effort to obstruct justice.
Notably, Trump did not do this alone. Let me introduce his congressional co-conspirators: Jim Jordan, Matt Gaetz and Devin Nunes. Those three congressmen fed up with playing defense, conceived a strategy to “investigate the investigators”. They launched investigations into the FBI, Justice Department and Hillary Clinton. Trump assisted their efforts by leaning on justice officials to release documents aimed at undermining the credibility of law enforcement.
The culmination of the congressional distraction campaign was a memo released by Nunes that opined, with limited factual basis, on the justification for the Russia probe. After its release President Trump called Nunes an American hero while the FBI stated it had “grave concerns” with the memo’s accuracy.
The final character in this story: Rudy Giuliani. Giuliani led an effort to discredit the special counsel through a relentless media campaign. The craziest part about it? He freely admits to it.
Why is he so brazenly attacking a lawful investigation?
The President’s strategy is based on a long-standing justice department policy: a sitting President shall not be indicted.
Therefore, the only recourse for those who believe the President broke the law is impeachment. Impeachment, reserved for treason, bribery or “high crimes and misdemeanors” including obstruction of justice, requires a majority of the House of Representatives to vote in favor. At that point the President is impeached. But to be removed 2/3rds of the Senate needs to vote in favor.
Impeachment is not a legal process, it is a political one. Thus, Trump is treating the Russian investigation as a political campaign not a law enforcement investigation – his strategy bears that out. As long as the President can convince enough Americans that the Mueller investigation is a “hoax” or “witch hunt” he will survive, or at least that’s the gamble he’s taken.
It’s a risky strategy but one that, with a Republican controlled Senate unwilling to remove him, and long-standing Justice Department policy insulating him from legal action, might just work.
There are three wild cards.
1. The final Mueller report. If damaging enough, public opinion might sour on the President and his strategy will fail. But will it be released to the public? Only time will tell.
2. The Justice Department. The policy not to indict Presidents is a policy not a law. Policies can be overturned.
3. The southern district of New York. SDNY is not subject to executive privilege and the President can’t pardon those indicted under state law. He has no control over what they release to the public nor is he immune from indictment under state law.
And then, there’s 2020. The President may survive impeachment by doubling down on his scorched earth media strategy. But will it help him win reelection? It’s unclear.
Bite Sized Politics
· Democrats are planning on introducing legislation on Friday to terminate President Trump’s national emergency declaration. After it passes the House, the Senate has 18 days to take it up on the floor. Only four GOP Senators would have to join with Democrats to rebuke the President.
· North Carolina’s state board of elections voted Thursday to order a new election in the disputed 9th Congressional District. The election was invalidated by blatant voter fraud committed by a staffer hired by Republican candidate Mark Harris.
· After posting on Instagram a close up photograph of US District Court Judge Amy Berman Jackson with a crosshairs in the upper corner Roger Stone is henceforth barred from making any public comments on the charges he faces from the special counsel.
The Lens 