A Wall the President Does Not Want to See Built:
While
CSI viewers are accustomed to wait for the "smoking gun" to be
revealed at the end of the program, in real life many criminal convictions
result from the subtler circumstantial
evidence the prosecutor amasses to show motive and criminal intent. We don't
yet have a device that can scan the brain to ascertain intent, so we use
evidence from which reasonable people can draw reasonable inferences about a
party's state of mind -- things like when a person suppresses material
information, or conspires to create a knowingly false narrative, or makes false
statements about material facts, or endeavors to hide material documents, or makes
corrupt efforts to spike a prosecutorial inquiry, etc. Stuff like that. Each of
these things would lead a reasonable juror to conclude they evince a consciousness
of guilt. This is persuasive stuff to courts and juries in both criminal and
civil cases.
The substantial
quantity of circumstantial evidence of this president's corrupt intent to
obstruct the Russia investigation is piling up: No
one piece of evidence is conclusive. This prosecutor is patiently building a
wall, and each piece of evidence is but one brick. That's the way it is done in
real life. And Mueller's wall gets higher and stouter with each passing week.
Recent
news reports reveal that Rick Gates has fired his lawyer, has new counsel, and
may be cooperating with Mueller. Gates was Manafort's partner for many
years, and has had lots of contact with the Russians, going back to 2013. He
and Manafort have been indicted by Mueller for money laundering, false
statements and a host of other offenses, many involving their Russian contacts.
If Gates flips, the pressure on Manafort will dramatically increase. And
Manafort was Trump's campaign manager, not somebody who can be dismissed by the
White House as some lowly gofer. Another brick in the wall.
And
we now have a report of a telephone conversation involving Trump, Hope Hicks, and Mark Corallo, a spokesman for the Trump legal team.
Their tripartite telephone conversation concerned the earlier release of a statement under Donald
Jr.'s name, describing his meeting with the Russians on June 9, 2016. The
written statement, drafted by President Trump with the aid of Hicks, reported
that the meeting with the Russians basically was about adoption. That was false,
and it is clear Trump, Hicks, and of course Donald Jr., knew it was false. When
Corallo told the president and Hicks that he was concerned the statement would
backfire because the true purpose of the meeting would be revealed by the emails
among the president's son, son-in-law, and campaign manager, Hicks is
alleged to have responded to the effect, "That's not a problem because those
emails will never get out." Corallo, doubtless out of desire to maintain his view of Mueller's wall from the outside, not the inside, surely feared he was
listening to a plan for document destruction, and immediately advised Hicks and
the president to talk to their lawyers, hung up, made a contemporaneous memorandum
of who said what, told three other people about the conversation, and then
quit his job! Apparently, he has now accepted an
invitation to spill all to Mueller's team. More bricks in Mueller's wall.
The
higher this wall gets, the greater the pressure on this presidency. The greater
the pressure on this presidency, the more risks the president and his supporters
will take to spike Mueller's efforts.
The
astonishing conduct of the Nunes Committee and the White House in declassifying
and releasing a partisan and misleading memo over the stern objections of the
FBI is
a fair measure of how great that pressure has become. It's certainly
more than reasonable to infer this whole episode is a preparatory tactical
strike to create an equally flaccid public relations defense for a forthcoming announcement:
A prediction: Our president, who has said over and over again, i) there is "no
collusion," ii) he has nothing to fear and is eager to talk to Mueller, iii)and he is even eager to do so under oath,
will eventually announce his refusal to
meet with Mueller. He will say his
decision is based upon the evident bias of the FBI as revealed in the Nunes
memo. He will tweet "witch hunt," and may even fire Mueller and
Rosenstein. But the truth is, of course, he will decline to meet with Mueller's
team because such a meeting might end his presidency well before 2020.
For
sure, the President's turnabout rejection of a Mueller meeting would produce a
tsunami of criticism, but his lawyers will persuade him to accept the risk, and
the risk of a subsequent subpoena. Mueller's wall is getting too high, and I have little doubt it would be a lot higher were the President to sit down
with the Mueller team. And in an effort to prevent a subsequent Grand Jury
subpoena, Trump may even fire Rosenstein and Mueller. A Saturday Night Massacre
to the second power.
Now,
an interesting question: Would his refusal to talk to Mueller constitute official
misconduct? I suggest it would. Consider, please, that the President is not an
ordinary citizen. He alone has a Constitutional
duty to "take Care that the Laws be faithfully executed." Mueller is
conducting a legal inquiry into whether, among other things, Trump or members
of his family, have violated various Penal Law provisions, and that includes
the obstruction of justice by his bad faith firing of Comey and otherwise
obstructing the Comey/Mueller investigation. It is hard to see how a bad faith
refusal to cooperate with Mueller, or worse, a bad faith firing him, would be consistent
with the Constitutional command to see to it the laws are faithfully executed.
Would the Congress be so offended at the
president's bad faith refusal to meet with Mueller, that they would finally
act? Would they impeach this president? This
Congress? Does a bear poop in a tree?
...................
N.B. This
article was written on a rainy Saturday, February 3, 2018, two days before the NYTimes reported the scoop that Trump's lawyers
were urging the President not to meet with Mueller. For various weather and
other non-substantive reasons, the author of this piece, who actually has
another life not entirely focused on The Donald's attempt to end the world
as we know it, didn't get around to posting it until now!
And now a bonus: Time.com has just published a subsequent essay of mine discussing in some greater depth my theory that the mandatory obligation imposed upon the President by the Constitution to "Take Care that the Laws be Faithfully Executed" means what its says and requires Trump to cooperate with Mueller. Nevertheless I predict Trump will disregard his Constitutional duty and refuse to speak with Mueller, and that Paul Ryan and his team will abandon their Constitutional obligations and give The Don a pass. Hope I am wrong.
Don't pass this one up. It even contemplates The Don taking Five! Here's the cite. Check it out:
http://time.com/5137773/donald-trump-russia-congress-impeach/
A bientot!