Michael Barone famously said “all process arguments are insincere, including this one.” So it goes for debates about presidential accountability. To wit, just look at the goalpost-shifting that Trump supporters have engaged in the last two years.
For “deep state” Obama and FBI officials? Maximum accountability. A reckoning. Everything about the origins of what became the Mueller investigation — like a legally obtained FISA warrant against Kremlin advisor Carter Page — was an abuse of power.
But for the current president? His questionable behavior — firing James Comey, dangling pardons, threatening tweets — earns a highly legalistic, and sometimes Nixonian, defense of his constitutional prerogatives over federal investigations that touch on his personal or political interests.
Partisans have had the benefit of an expansive playing field, encompassing diverse rhetorical terrain: counterintelligence vs. criminal investigations, felonies vs. “high crimes and misdemeanors.” These opportunistic maneuvers to more favorable ground will now come to an end. With the release of the Mueller report, will these partisans reckon with the dark portrait it paints of the Trump administration? Let’s look at their line of thinking throughout the investigation.
“The president didn’t ask the FBI director to take it easy on Michael Flynn, but even if he did, he would have been exercising his powers under Article II of the U.S. Constitution.”
National Review’s Andrew McCarthy, a former federal prosecutor, dances this two-step well. When congressional Republicans accused former National Security Adviser Susan Rice of improperly “unmasking” U.S. persons swept up by our intelligence agencies, McCarthy argued “the issue is abuse of power, not criminality.” McCarthy went on to explain that
Abuses of power are offenses against the public trust. They often overlap with a criminal offense, but they are not the same thing as a criminal offense… That is why a “high crime and misdemeanor” — the constitutional standard for impeachment — need not be an indictable criminal offense. It may be a chargeable crime, but it need not be one.
However, writing about “the folly of the Mueller investigation” earlier this month, McCarthy elided that distinction, chiding Democrats for an expected “claim that it shows disturbing Trump-Russia collusion even if there is no criminal conspiracy.” Regarding obstruction of justice, he criticized the “aggressive … effort to find obstruction in acts lawfully within the president’s discretion, such as firing FBI director James Comey.”
Byron York of Washington Examiner is also a master of this Washington version of Calvinball. After Comey’s firing in May 2017, York took “Democrats, pundits, Obama holdovers, and NeverTrumpers” to task for “building a case of obstruction of justice against the president, charging that he actively tried to derail the investigation into his campaign and his associates…rather than focusing on alleged collusion.”
Two months later, the New York Times broke the story of the infamous Trump Tower meeting, during which the future president’s son, son-in-law, and campaign manager were promised damaging information on Hillary Clinton by a lawyer with ties to the Kremlin. In a piece that month, York changed his tune, asking rhetorically “What campaign wouldn’t seek motherlode of Clinton emails?”
But no one has thrown the anchor more aggressively toward the windward than Mollie Hemingway of The Federalist. She’s already telegraphed that Mueller concluding anything less than “treasonous collusion to steal an election” will be a bust.
Abuse of power, apparently, isn’t the priority it was during the presidency of Barack Obama.
Which brings us to the release of the long-awaited “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” and which puts an end to this shell game. The president was never going to be indicted by his own Justice Department. And to the extent he committed crimes as defined by the U.S. Code, it’s only relevant if Congress decides such violations warrant impeachment.
Discussions about “treasonous collusion” and obstruction of justice are predicates to the real questions for our republican government: Did the president abuse his constitutional powers? Has he upheld his oath to see that the laws are faithfully executed?
The special counsel’s report is presented in two volumes: Volume I covers the investigation into Russia’s attempts to interfere with the 2016 election campaign, and whether the Trump campaign conspired with Russia in that effort; Volume II describe’s the president’s attempts to obstruct the course of that investigation.
Robert Mueller begins by disabusing the public of several persistent conspiracy theories. “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion,” he writes, placing blame squarely on the Kremlin for the hack of the Democratic National Committee and the dissemination of its emails via Wikileaks. This conclusion will be disappointing for those in the far-left and far-right swamps who still believe the DNC hack was an “inside job.”
Mueller specifically accuses WikiLeaks founder Julian Assange of “making several public statements apparently designed to obscure the source of the materials that Wikileaks was releasing” by “impl[ying] falsely that [Seth Rich] had been the source of the stolen DNC emails.”
The special counsel also puts to rest the suggestion that the Russia investigation was a “deep state” set-up. The report traces the beginning of the FBI’s investigation to
late July 2016, soon after WikiLeaks’s first release of stolen documents [when] a foreign government contacted the FBI about a May 2016 encounter with Trump Campaign foreign policy advisor George Papadopoulos… That information prompted the FBI on July 31, 2016, to open an investigation into whether individuals associated with the Trump Campaign were coordinating with the Russian government in its interference activities.
The report is sure to disappoint some Russiagate diehards with its judgment on the subject of “collusion.”
Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the [Trump] campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
However, we do learn from the report that “beginning in June 2016 [name redacted] forecast to senior Campaign officials that Wikileaks would release information damaging to candidate Clinton.” And we are reminded that “candidate Trump announced that he hoped Russia would recover emails described as missing from a private server used by Clinton when she was Secretary of State.”
While Volume I of the report fails to deliver on hopes that it would uncover a seditious conspiracy, it does reinforce what many of us already knew: that the Russian government supported the Trump campaign, that it was willing to take measures to help the Trump campaign, and that the Trump campaign would welcome such interference.
That conclusion should be sobering and unsettling to anyone who still cares about the integrity of our political institutions.
Volume II catalogs a litany of attempts by the president to influence Department of Justice investigations into his campaign and administration. It contains startling new revelations, and the abuses of power it documents will likely be viewed by Democrats and Trump-skeptical conservatives as a roadmap for impeachment.
In particular, the report describes the president making a determined effort to cover up National Security Adviser Michael Flynn’s post-election contacts with the Russian ambassador, to interfere with the FBI investigation into Flynn, and to pressure Flynn when he withdrew from a “joint defense agreement,” an arrangement that “covers a broad variety of communication over the course of a legal fight, including well before any charges are filed.”
(Interestingly, the report also notes that the FBI’s investigation into the retired three-star general was opened before his contacts with the Russian ambassador and “unmasking” by intelligence officials. “Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government,” the report states.)
As the FBI investigation into Flynn’s conversations with the Russian ambassador intensified, the report describes an anxious campaign by the president to end the investigation into his national security adviser. Following a meeting with Attorney General Jeff Sessions and senior White House staff, the president clears the room and asks FBI Director James Comey to “see your way clear to letting this go, to letting Flynn go.” Comey later “testified under oath that he took the president’s statement ‘as a direction’ because of the President’s position and the circumstances of the one-on-one meeting.”
In analyzing the legal implications of the president’s “direction,” the special counsel notes “the President later denied that he cleared the room and asked Comey to ‘let Flynn go’ — a denial that would have been unnecessary if he believed his request was a proper exercise of prosecutorial discretion.”
As pressure mounted against Flynn, leading to his withdrawal from a joint defense agreement with Trump, the report details how “the President’s personal counsel left a message for Flynn’s attorneys reminding them of the President’s warm feelings towards Flynn… and asking for a ‘heads up’ if Flynn knew ‘information that implicates the President.’” Upon learning that Flynn’s legal team would not provide any information to Trump lawyers, the message turned threatening: “the President’s personal counsel said he would make sure that the President knew that Flynn’s actions reflected ‘hostility’ towards the President.”
The report goes on to outline the president’s desperate campaign to prevent Jeff Sessions from recusing himself from the Russia probe. After White House Counsel Don McGahn fails to convince Sessions directly, “the President reiterated that he did not want Sessions to recuse.”
Throughout the day, McGahn continued trying on behalf of the President to avert Sessions’s recusal by speaking to Sessions’s personal counsel, Sessions’s chief of staff, and Senate Majority Leader Mitch McConnell, and by contacting Sessions himself two more times. Sessions recalled that other White House advisors also called him that day to argue against his recusal.
The following day, the report describes an extraordinary Oval Office meeting, during which Trump explained his understanding of how presidents should exert political control over law enforcement. “You’re telling me that [Attorney General] Bobby [Kennedy] and President Jack [Kennedy] didn’t talk about investigations? Or Obama didn’t tell [Attorney General] Eric Holder who to investigate?”
The president’s interference with the FBI would extend to his top national security officials, recalling former President Richard Nixon’s request that the CIA block the FBI’s investigation into the break-in at the Watergate hotel. Though Director of National Intelligence Daniel Coats “told [the special counsel] that the President never asked him to speak to Comey about the FBI investigation, [s]ome ODNI staffers had a different recollection of how Coats described the meeting.”
According to senior ODNI official Michael Dempsey, Coats said after the meeting that the President had brought up the Russia investigation and asked him to contact Comey to see if there was a way to get past the investigation, get it over with, end it, or words to that effect.
The special counsel does not conclude that the firing of FBI Director Comey amounted to obstruction of justice, but does note “the initial reliance on a pretextual justification” — the handling of the Clinton email investigation.
According to the report, the president’s attempts to interfere with the Mueller investigation began the moment he was named special counsel. After a moment of despair — “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked” — the president is described telling his attorney general to resign. (Sessions’ resignation was ultimately rejected.)
Don McGahn later told investigators that when press reports emerged that the special counsel was investigating the president for obstruction of justice, Trump ordered him to have Robert Mueller removed: “Mueller has to go. … Call me back when you do it.” McGahn immediately decided to resign, according to the report, but was later convinced to remain in his position.
These webs of deceit and abuse become even more tangled as press reports emerge that the president sought to have the special counsel fired.
On January 26, 2018, the President’s personal counsel called McGahn’s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest.
Later, the president would allegedly involve White House Staff Secretary Rob Porter in the cover-up.
The president told Porter that the [New York Times] article was ‘bullshit’ and he had not sought to terminate the Special Counsel. The President said that McGahn leaked to the media to make himself look good. The President then directed Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel.
The report describes other efforts to restrict the special counsel’s investigation, including the president requesting that former campaign manager Corey Lewandowski intervene with the Justice Department to “limit the Russia investigation to future election interference only.” In analyzing this action, the Mueller report notes that
The manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski alone in the Oval Office. The President selected a loyal “devotee” outside the White House to deliver the message, supporting an inference that he was working outside White House channels, including McGahn, who had previously resisted contacting the Department of Justice about the Special Counsel.
The report goes on to outline in disturbing detail the president’s attempts to influence the testimony and cooperation of former aides and confidants like Michael Flynn, Paul Manafort and Michael Cohen.
At a certain point, this inventory of self-interested abuses of power and attempts to pervert the course of justice becomes overwhelming. The Mueller report is a deeply disturbing account of a reckless presidency.
“The executive Power shall be vested in a President of the United States of America.”
“The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
- [Mueller Report, Volume II, page 8]
The final redoubt for the president’s defenders, should they find the facts troublesome, is the law. In this case, the controlling legal authority is the U.S. Constitution. Give them their due: the Constitution is a powerful bulwark.
John Dowd, who served as the president’s personal attorney before Rudy Giuliani, told Axios in December 2017 that the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”
was merely articulating the “unitary executive” theory. That theory, rooted in constitutional law, holds that Article II vests all executive power in a single official, the president; therefore, subordinates appointed to wield executive power, including government lawyers exercising prosecutorial discretion, do so as delegates of the chief executive. That, indeed, is why all executive officers serve at the pleasure of the president, who does not need a reason to dismiss them.
The “unitary executive” theory carries a lot of baggage, but it’s essentially a truism. Despite the growth of the administrative state, the fount of executive branch authority is a president. Executive power cannot be ceded to Congress or delegated to officials unaccountable to the president.
But the president’s defenders should be careful in wielding the theory of the “unitary executive” as a final justification for the president’s actions. “For unto whomsoever much is given, of him shall be much required.” To put it another way, with great power comes great responsibility. And responsibility is meaningless without accountability.
Whether the president was successful in obstructing an investigation into campaign activities and the official acts of his administration is not nearly as important as the overwhelming evidence that he tried. We cannot vest all executive power in a president and pray that others in the bureaucracy will prevent him from abusing that power.
Under Donald Trump, the executive branch has failed to live up to its constitutional responsibilities. For the sake of the republic, it now falls to Congress, and the people, to live up to ours.