Living Large In Carson City: Well, That Was A Surprise Edition

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This has been one of the hardest Mondays in a long stretch of hard Mondays dating back to the beginning of 2017 when Trump took office. My disappointment is rooted on many levels. What we know now is that Robert Mueller is both an honorable man, and obviously, a naive one. On the one hand, he knew any information he and his band of loyal attorneys dug up on Trump was going to be subject to two memos authored by the Office of Legal Counsel (OLC); one in 1973 during Nixon’s Watergate woes and one in 2000 after the Clinton impeachment. The two memos argue that a sitting president cannot be indicted. Oddly enough, two other memos came to the opposite opinion. Yet, he did the work and came up with a report that will likely not see the light of day outside of the Trump administration and his cronies.

The fact that the memos clash is understandable according to Andrew Crespo who is an Assistant Professor of Law at Harvard Law School. Writing in the Law Fare Blog, Crespo states the opposing memos that allow for the president to be indicted come from the Office of Special Counsel and the Office of Independent Counsel. He points out that the latter two offices have different missions, cultures, and goals than the OLC. He notes that the real crux of the issue for Mueller is which of the two sets of memos would he be bound to follow by Attorney General Barr and the Trump White House?

For present purposes, however, the most important practical question is whether the current special counsel, Robert Mueller, is free to exercise his own independent judgment on the immunity issue, or whether he is instead bound to follow OLC’s take. If it’s the latter, then those two OLC memos would together constitute the single greatest shield protecting President Trump from prosecution: No matter how strong the evidence against him may become, if OLC’s memos are binding then the President simply cannot be indicted until after he leaves office—by which point, it bears noting, the statute of limitations for any relevant conduct may well have expired. www.lawfareblog.com

Mueller knew all along the OLC’s interpretation was the one that Trump and company would insist on following. This means no matter how damning any information he and his team unearthed Trump was going to claim executive privilege and stand behind the rules set down by the OLC’s memos. It is becoming more obvious that Mueller, knowing his hands were tied by the OLC guidelines, saw no reason in pushing for an indictment, but rather, tailored his findings to be passed along to Congress which is the only body able to ferret out the Trump administration’s wrong doings under the current set of circumstances. These issues relate to obstruction. Other matters were also passed along to other federal courts like the Southern District of New York and Eastern District of New York (Brooklyn) which will take up a myriad of infractions dealing with Trump, his children, and various organizations associated with Trump’s so called empire.

Where I think Mueller was naive was thinking that Barr would agree and pass along the report to the House Judiciary committee. Barr, so far, hasn’t seen it that way as demonstrated in his letter to Congress which was long on political wink and nods but lacked zero substance. The Barr letter is both wacky and interesting in what it does and doesn’t highlight in the report. While collusion is off the chopping block, obstruction of justice by the president and his team is not. A Daily Kos article, Lawfare: What to Make of Bill Barr’s Letter, has an interesting breakdown of the letter by Lawfare which states in part,

It also makes clear that the Mueller report creates an extensive record on the obstruction question. And that may well be the point. After all, what is the point of a prosecutor’s amassing a factual record and then refusing, as Mueller apparently has refused, to evaluate it in a traditional prosecutorial framework? The answer the letter suggests but does not state is that the Mueller report has teed up the question of presidential obstruction for evaluation by a different actor—to wit, by Congress—on a decidedly noncriminal basis. Mueller, being barred from indicting the president, has done the investigation, has apparently declined even to evaluate the matter as a prosecutor, and has laid out all of the facts and the arguments for and against treating the president’s behavior as criminal. Lawfare/DailyKos

Okay, where we are today, Tuesday March 26, is pretty much screwed as to knowing anything of substance concerning the findings of Mueller and crew. Barr appears to be whitewashing the report, and Trump, of course, is calling it a complete vindication of no collusion, and by extension, no obstruction of justice. We can only blame the Senate for confirming Barr in the first place. In a 2018 memo to Congress, Barr expresses doubt about the legality of Mueller’s probe in no uncertain terms. This was long before Barr was tapped as Trump’s replacement for Jeff Sessions (I refuse to dignify Matt Whitaker as an acting anything other than an asshole).  Some have suggested that the memo played a part in Trump’s choice of Barr. One could even make the case Barr was “auditioning” for the AG position through the memo.  In paragraphs one and two, Barr lays out his case rather succinctly, if somewhat arrogantly. He wrote,

It appears Mueller’s team is investigating a possible case of “obstruction”by the President predicated substantially on his expression of hope that the Comey could eventually “let… go” of its investigation of Flynn and his action in firing Comey. In pursuit of this obstruction theory, it appears that Mueller’s team is demanding that the President submit to interrogation about these incidents, using the threat of subpoenas to coerce his submission.

Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction. Apart from whether Mueller a strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view,if credited by the Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.  Barr Memo

It goes on and on for some 19 pages. If this were not a clarion bell ringing out for Mueller to ignore at his peril, I don’t know what is.

Since we don’t know at this point how this situation will play out, the only course of action is to look at the consequences of what the Barr letter to Congress on Mueller’s findings has created. Trump, predictably, is singing his own praises telling America that he has been wronged but now vindicated. Hypocrisy and irony are totally lost on this man. He said,

“. . . lot of people out there that have done some very evil things, I would say treasonous things against our country” will “certainly be looked at.”

“I’ve been looking at them a long time,” Trump added, telling reporters “you know who they are…They’ve done so many evil things.”

Trump said he loves this country “as much as I can love anything: my family, my country, my god.”

“We can never let this happen to another president again,” he said, boasting “very few people I know could have handled it.”  Deadline

Sigh. Others like Mitch McConnell stuck their fingers in the pie. Mitch blocked a resolution calling for the Mueller findings to be made public. This isn’t surprising since he has long ago lost understanding of what our democratic ideals mean. Mike Pence crawled out from under his rock to claim Trump is completed exonerated and innocent. Of course, this will be hard to prove unless America knows what is actually in the report. In a nutshell the entire Mueller fiasco has turned into a nightmare of hellish proportions.

Talk of impeachment now seems like ancient history. There is even speculation that the Democrats’ plan to follow up on investigations already underway may be in jeopardy. Trump scored a huge win with the Mueller report and Barr’s summation of it to Congress. There seems to be only two possible paths to salvage anything of worth from the past two years of Mueller’s probe. One, by some whim of fate, Congress gets the report (unredacted) and can decide for the American people what should be the consequences that Trump must face. Or the ballot box. On the former, don’t count on it. On the latter . . . well, the alternative to not kicking Trump out of office is simply too much to contemplate at this time.