Donald Trump is no Richard Nixon. He’s worse

(THIS ARTICLE IS COURTESY OF THE LOS ANGELES TIMES)

 

Donald Trump is no Richard Nixon. He’s worse

Donald Trump is no Richard Nixon. He’s worse
President Trump at the White House on April 18, the day the redacted Mueller report was released. (Drew Angerer / Getty Images)
Special counsel Robert S. Mueller III’s report makes one thing clear: Donald Trump is no Richard Nixon. He is worse. And yet Trump seems almost sure to be spared Nixon’s fate. This will do severe — possibly irreparable — damage to the vital norms that sustain American democracy. There is still time for Congress and the American people to avert the worst of this damage, but the odds are long and time is short.

Despite his famous protestation to the contrary, President Nixon was a crook. He directed the CIA to shut down the FBI’s investigation of the Watergate burglary, in which several of his campaign operatives broke into Democratic National Committee headquarters. He also directed subordinates to pay hush money to subjects of that investigation. He then fired the first special prosecutor appointed to investigate these matters, hoping to protect himself and his senior advisors from possible criminal liability and untold political damage.

For these attempts to obstruct justice, Nixon paid the ultimate political price. When he terminated special prosecutor Archibald Cox, a ferocious public backlash forced him to appoint a widely respected replacement. That was Leon Jaworski, whose dramatic victory at the U.S. Supreme Court forced the release of secret White House tapes that destroyed the last vestiges of Nixon’s congressional support. He resigned the presidency days later. Had he failed to do so, impeachment by the House of Representatives and removal by the Senate were all but certain.

If Trump escapes unscathed, future presidents will take notice.


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Nothing in Nixon’s presidency became him like the leaving it. For two generations, his downfall served as a cautionary tale for subsequent presidents who might be tempted to interfere with a federal investigation for personal or political reasons. Firing a special prosecutor, in particular, was almost universally understood to be political suicide. As Watergate showed, the American people simply would not stand for a president who sought to place himself above the law. This broadly shared understanding served as a crucial safeguard against the abuse of presidential power.

Then came Trump. After smashing through dozens of other deeply rooted norms of American politics to win the presidency, he treated the post-Watergate consensus with similar contempt. Just weeks after he took the oath of office, as the Mueller report details, Trump asked FBI Director James B. Comey to drop the investigation of national security advisor Michael Flynn. Before making this request, the president cleared the room, strongly suggesting that he knew his actions were improper. Requesting that the FBI drop an investigation of his friends is exactly what Nixon was caught doing on the famous “smoking gun” tape that sealed his fate.

Yet for Trump, this was just the beginning. A few weeks later, in early March 2017, the report shows that Trump lobbied vigorously to prevent Atty. Gen. Jeff Sessions from recusing himself from the Russia investigation. When Sessions nevertheless followed the advice of ethics officials and recused himself, Trump exploded in anger and personally pressed Sessions to reverse his decision. Trump wanted an attorney general who would protect him to be in charge of the investigation.

In May 2017, the Mueller report shows that Trump removed Comey as head of the FBI and concocted a deliberately false explanation related to Comey’s handling of the Hillary Clinton email investigation. Along with Trump’s attendant criticism of the Russia investigation and personally vindictive treatment of Comey, this action “had the potential to affect a successor director’s conduct of the investigation.” The report catalogs significant evidence that the president was worried the investigation would turn up politically and legally damaging information, and that it threatened the legitimacy of his election.

The report’s most damning evidence of obstruction of justice concerns the special counsel’s investigation itself. Once Trump learned in June 2017 that he was himself under investigation by Mueller’s team, his efforts to thwart the investigation reached new heights of audacity. That month, in a series of frantic phone calls, he ordered White House counsel Don McGahn to fire Mueller. The report describes “substantial evidence” that this was an attempt to obstruct the special counsel’s investigation; Trump was acting to protect himself from potential criminal liability and political damage.

When McGahn refused to carry out the order to fire Mueller, Trump resumed his campaign to get Sessions to take over the investigation and curtail it — or resign, so that Trump could appoint someone who would protect him. Much of this information was already in the public domain, but it is no less shocking for that. The evidence available to Mueller’s investigators, including contemporaneous documents and testimony under oath, provides a far surer foundation than anonymously sourced news stories.

The report also contains a wealth of new information. When Trump’s order to fire the special counsel was publicly reported in January 2018, Trump demanded that McGahn fabricate “a record denying that the President had tried to fire the special counsel.” This is witness tampering, plain and simple, of a much more direct and personal kind than any that Nixon engaged in. It also amounts to falsifying evidence, which counts as obstruction of justice even on the narrowest possible reading of the federal statute advanced by Trump’s lawyers.

Along similar lines, the report describes substantial evidence that Trump privately urged Flynn, Paul Manafort and Michael Cohen to “stay strong” and promised — through his lawyers — that they would “be taken care of” unless they “went rogue.” Together with the president’s public tweets praising Manafort and Stone for their bravery and baselessly accusing members of Cohen’s family of crimes, this conduct also amounts to witness tampering, plain and simple.

Lest it be forgotten, all of this took place in the context of one of the most serious law enforcement and counterintelligence investigations in the history of the United States. As the Mueller report explains, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion” on behalf of Donald Trump. The FBI and Mueller set out to discover whether Trump’s campaign was complicit, and Trump took extraordinary measures to thwart their efforts. Nixon’s obstruction of the Watergate investigation looks almost innocent by comparison.

And yet Trump seems very likely to escape direct accountability. House Democrats may well opt against pursuing impeachment, for entirely understandable reasons: It might be too wrenching for the country, in the absence of a clear popular consensus supporting Trump’s removal. It might not be good politics for 2020, with voters more concerned about bread-and-butter issues. Even if the House votes to impeach, a two-thirds Senate vote to remove Trump from office seems almost inconceivable.

But if Trump escapes unscathed, future presidents will take notice. The cautionary tale of Watergate will be superseded by the Trump triumph and its very different lesson: In the hyperpolarized political environment of the early 21st century, the president is a law unto himself.

Andrew Coan is a professor of law at the University of Arizona and the author of “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law.”

Trump’s legal memo to Robert Mueller is a recipe for tyranny

(THIS ARTICLE IS COURTESY OF VOX NEWS)

 

Trump’s legal memo to Robert Mueller is a recipe for tyranny

A clear and present danger to the rule of law

Photo by Olivier Douliery-Pool/Getty Images

Essentially all presidents sooner or later end up commissioning lawyers to put forward an expansive view of presidential power, but those lawyers take pains to argue that they are notmaking the case for a totally unchecked executive whose existence would pose a fundamental threat to American values.

Donald Trump, however, is a different kind of president.

In a 20-page memo written by Trump’s legal team and delivered to Robert Mueller, as reported by the New York Time’s this weekend, they make an unusually frank case for a tyrannical interpretation of presidential power.

Trump’s lawyers say he has unlimited power over criminal justice

The key passage in the memo is one in which Trump’s lawyers argue that not only was there nothing shady going on when FBI Director James Comey got fired there isn’t even any potentialshadiness to investigate because the president is allowed to be as shady as he wants to be when it comes to overseeing federal law enforcement. He can fire whoever he wants. Shut down any investigation or open up a new one.

Indeed, the President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction. Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.

This is a particularly extreme version of the “unitary executive” doctrine that conservative legal scholars sometimes appeal to (especially when there’s a Republican president), drawing on the notion that the executive branch of government — including the federal police agencies and federal prosecutors — are a single entity personified by the president.

But to push that logic into this terrain would not only give the president carte blanche to persecute his enemies but essentially vitiate the idea that there are any enforceable laws at all.

Donald Trump’s impunity store

Consider that if the memo is correct, there would be nothing wrong with Trump setting up a booth somewhere in Washington, DC where wealthy individuals could hand checks to Trump, and in exchange Trump would make whatever federal legal trouble they are in go it away. You could call it “The Trump Hotel” or maybe bundle a room to stay in along with the legal impunity.

Having cut your check, you’d then have carte blanche to commit bank fraud or dump toxic waste in violation of the Clean Water Act or whatever else you want to do. Tony Soprano could get the feds off his case, and so could the perpetrators of the next Enron fraud or whatever else.

Perhaps most egregiously, since Washington DC isn’t a state all criminal law here is federal criminal law, so the president could have his staff murder opposition party senators or inconvenient judges and then block any investigation into what’s happening.

Of course, as the memo notes, to an extent this kind of power to undermine the rule of law already exists in the form of the essentially unlimited pardon power. This power has never been a good idea and it has been abused in the past by George H.W. Bush to kill the Iran-Contra investigation and by Bill Clinton to win his wife votes in a New York Senate race. Trump has started using the power abusively and capriciously early in his tenure in office in a disturbing way, but has not yet tried to pardon his way out of the Russia investigation in part because there is one important limit on the pardon power — you have to do it in public. The only check on pardons is political, but the political check is quite real (which is why both Bush and Clinton did their mischievous pardons as lame ducks) and the new theory that Trump can simply make whole investigations vanish would eliminate it.

This issue is bigger than Comey or Mueller

Much of the argument about Trump and the rule of law has focused rather narrowly on the particular case of Comey’s firing and the potential future dismissal of Robert Mueller.

These are important questions, in the sense that an FBI Director is an important person and a special counsel investigation is an important matter, but the memo is a reminder that they offer much too narrow a view of what the real extent of the problem is here.

One of the main purposes of the government is to protect the weak from exploitation at the hands of the strong by making certain forms of misconduct illegal. Trump’s assertion that he can simply waive-away investigations into misconduct because he is worried that the investigation might end badly for his friends or family members is toxic to that entire scheme. Trump, like most presidents, has plenty of rich and powerful friends and a much longer list of rich and powerful people who would like to be his friends.

If he really does have the power to just make anyone’s legal trouble go away because he happens to feel like it, then we’re all in a world of trouble.

FBI Special Council Mueller Gets Important Warrant: Trump And Family Federal Prison Bound?

(THIS ARTICLE IS COURTESY OF THE BUSINESS INSIDER)

 

  • Robert Mueller obtained a search warrant for records of “inauthentic” Facebook accounts
  • It’s bad news for Russian election interference “deniers”
  • Mueller may be looking to charge specific foreign entities with a crime

FBI Special Counsel Robert Mueller reportedly obtained a search warrant for records of the “inauthentic” accounts Facebook shut down earlier this month and the targeted ads these accounts purchased during the 2016 election.

The warrant was first disclosed by the Wall Street Journal on Friday night and the news was later confirmed by CNN.

Legal experts say the revelation has enormous implications for the trajectory of Mueller’s investigation into Russia’s election interference, and whether Moscow had any help from President Donald Trump’s campaign team.

“This is big news — and potentially bad news for the Russian election interference ‘deniers,'” said Asha Rangappa, a former FBI counterintelligence agent.

Rangappa, now an associate dean at Yale Law School, explained that to obtain a search warrant a prosecutor needs to prove to a judge that there is reason to believe a crime has been committed. The prosecutor then has to show that the information being sought will provide evidence of that crime.

Mueller would not have sought a warrant targeting Facebook as a company, Rangappa noted. Rather, he would have been interested in learning more about specific accounts.

“The key here, though, is that Mueller clearly already has enough information on these accounts — and their link to a potential crime to justify forcing [Facebook] to give up the info,” she said. “That means that he has uncovered a great deal of evidence through other avenues of Russian election interference.”

It also means that Mueller is no longer looking at Russia’s election interference from a strict counterintelligence standpoint — rather, he now believes he may be able to obtain enough evidence to charge specific foreign entities with a crime.

Former federal prosecutor Renato Mariotti, now a partner at Thompson Coburn LLP, said that the revelation Mueller obtained a search warrant for Facebook content “may be the biggest news in the case since the Manafort raid.”

The FBI conducted a predawn July raid on the home of Trump’s former campaign chairman, Paul Manafort, in late July. The bureau is reportedly investigating Manafort’s financial history and overseas business dealings as part of its probe into possible collusion between the campaign and Moscow.

jared kushnerWhite House senior adviser Jared Kushner listens as President Donald Trump answer questions regarding the ongoing situation in North Korea, Friday, Aug. 11, 2017, at Trump National Golf Club in Bedminster, N.J.Associated Press/Pablo Martinez Monsivais

The Facebook warrant “means that Mueller has concluded that specific foreign individuals committed a crime by making a ‘contribution’ in connection with an election,” Mariotti wrote on Saturday.

“It also means that he has evidence of that crime that convinced a federal magistrate judge of two things: first, that there was good reason to believe that the foreign individual committed the crime. Second, that evidence of the crime existed on Facebook.”

That has implications for Trump and his associates, too, Mariotti said.

“It is a crime to know that a crime is taking place and to help it succeed. That’s aiding and abetting. If any Trump associate knew about the foreign contributions that Mueller’s search warrant focused on and helped that effort in a tangible way, they could be charged.”

Congressional intelligence committees are homing in on the campaign’s data operation as a potential trove of incriminating information.

Democratic Rep. Adam Schiff, the ranking member of the House Intelligence Committee, told MSNBC earlier this month that he wants to know how sophisticated the Russian-bought ads were — in terms of their content and targets — to determine whether they had any help from the Trump campaign.

The House Intelligence Committee also wants to interview the digital director for Trump’s campaign, Brad Parscale, who worked closely with Trump’s son-in-law Jared Kushner.

Kushner was put in charge of the campaign’s entire data operation and is  now being scrutinized by the FBI over his contacts with Russia’s ambassador and the CEO of a sanctioned Russian bank in December.

Facebook said in its initial statement that about 25% of the ads purchased by Russians during the election “were geographically targeted,” and many analysts have found it difficult to believe that foreign entities would have had the kind of granular knowledge of American politics necessary to target specific demographics and voting precincts.

In a post-election interview, Kushner told Forbes that he had been keenly interested in Facebook’s “micro-targeting” capabilities from early on.

“I called somebody who works for one of the technology companies that I work with, and I had them give me a tutorial on how to use Facebook micro-targeting,” Kushner said.

“We brought in Cambridge Analytica,” he continued. “I called some of my friends from Silicon Valley who were some of the best digital marketers in the world, a nd I asked them how to scale this stuff . . . We basically had to build a $400 million operation with 1,500 people operating in 50 states, in five months to then be taken apart. We started really from scratch.”