SPEECHLESS IN ST. BARTHS

When the Barr report on Mueller's work was issued, I was struck dumb. 

I have recovered.

I was highly suspicious of Barr from the git-go. This man had long ago attacked the Mueller investigation in what was seen by many as a craven petition for appointment to the post of Attorney General. He was successful then, and perhaps, just perhaps, is successful now.

So I read Barr's letter with a jaundiced eye. Three things jumped out at the first quick read, persuading me this Attorney General was as dishonest as the man who appointed him.

First, while the AG's letter supplies lots of details on the number of witnesses interviewed, subpoenas served, etc., and does report that Mueller found the Russians interfered in our election, it never once completes the sentence: Russia interfered in our election in order to elect Donald Trump. Hmm, why that omission? 

Second, it is on the obstruction issue that Barr really tipped his hand.  He referred to the consideration of Trump's conduct that Mueller found to have raised "obstruction-of-justice concerns." Mueller makes it clear that while the evidence leads him to "not conclude that the President committed a crime, [the evidence] also does not exonerate him."  But Barr then takes over and does exonerate the President, applying "principles of federal prosecution." He tells us his decision is not based on the DOJ policy of not indicting a sitting president, but Barr does not tell us what are the "principles" that do lead to his "Not Guilty" verdict.  But he couldn't help himself, and revealed a big tell: he twice reminded us that "most" of Trump's actions that make up part of the evidence of obstruction "have been the subject of public reporting," and "took place in public view."

Now that is a familiar refrain. It was a constant Giuliani drumbeat: Trump couldn't be guilty of obstruction because his conspiratorial efforts to obstruct justice were done publicly.

I can't help myself. Been there before. See my blog dated August 2, 2018, where I wrote:

"Defense Level 9. Rudy tells the TV audience that Trump is not guilty of obstruction of justice because his allegedly obstructive statements and conduct were public. To be guilty of criminal obstruction, says Rudy, you need to do the deed secretly! That may be the single most ridiculous thing Rudy has ever said in his life. Even in his addled state, he must know that is false. He knows it is false because no lawyer and few other sentient adults could fail to grasp the illogical nature of the claim. He is saying that if two people conspired to burn down the White House, but they did on an open Facebook account, or Twitter, or YouTube, it would not be criminal because the conspiracy was open to public view. Or if a terrorist publicly threatened to kill a physician if she performed a legal abortion, that is not a crime because it is "pasteurized" by the lack of secrecy.

And oh yeah, the settled law makes clear that Rudy is full of shit, because other defendants have made that claim and the courts, including the Second Circuit, have said the claim lacks merit."

The third point that leapt off the page was the most revealing.  Barr came to the remarkable conclusion that none of Trump's potentially obstructive conduct "had a nexus to a pending or contemplated proceeding and were done with a corrupt intent." Huh? Mueller was not engaged in a grand jury investigation that led to  three-score indictments and a fistful of convictions of the President's gang? And the long list of Trump's obstructive conduct, starting with first asking Comey to let Flynn off, then firing him because of the "Russia thing," wasn't done with "corrupt intent" because, Barr says: "the evidence does not establish that the President was involved an underlying crime related to the Russian election interference" and that "bears upon the President's intent with respect to obstruction."

That is not only a flagrant misstatement of the law, it is logically absurd.

The obstruction statute makes it a crime to "corruptly... endeavor to influence, obstruct, or impede the due administration of justice."

Nothing in that statute says anything about the prosecution's need to plead or prove an "underlying crime." Nothing. To double check my view, I queried several former Assistant United States Attorneys on this subject. They unanimously adopted the opinion that Barr's statement referring to the lack of an "underlying crime" ranged from "ridiculous" to just plain "bullshit."

Martha Stewart, who did time in federal prison for obstruction, with no underlying crime, should sue.

For my final comment on this point, please look at the twisted logic: A person suspected of a crime effectively obstructs justice and thereby prevents the prosecution from getting the evidence necessary to prove the crime beyond a reasonable doubt. Therefore he goes free: No provable underlying crime, therefore no obstruction. This is the stuff for the likes of Mario Puzo and Linda Fairstein, not for our real-life democracy.

Shame on us. We elected this President.

A bientot!

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

PLAN B: BURY THE MUELLER REPORT!

On April 22, 1948, the House Un-American Activities Committee was investigating the allegedly un-American activities of a prominent government scientist. The Committee asked the FBI to turn over a report the Bureau had done on the man. President Harry S. Truman said "No," asserting his Executive Privilege to keep certain items secret.

A Republican member of the Committee made a speech denouncing Truman's decision. The 35 yr.-old lawyer argued that "from a constitutional standpoint," the President's assertion of privilege was not sustainable. The Congressman vigorously maintained that to allow the President to block the Committee's request for the report would mean the President could arbitrarily use Executive Privilege to keep documents from Congress "in the Teapot Dome scandal, or any other case, thus denying Congress the information it needed to conduct an investigation of the Executive Department."

Twenty-six years later, the former Congressman filed a brief in the Supreme Court, asserting that, as President of the United States, he had an absolute right to ignore a grand jury subpoena for tapes of conversations he had with his advisers. The subject matter of those conversations concerned matters in a pending criminal case against those advisers, his former Attorney General, and others. The conversations were, of course, about the Watergate break-in, a matter then being investigated by Congressional committees as well.

Nixon asserted a broad privilege. He claimed that his Executive Privilege rights under the Constitution were absolute, and the Court didn't even have the right to adjudicate his refusal to obey the grand jury subpoena.

Nixon lost. 

The Justices agreed that i) even though not spelled out in the text of the Constitution, there was such a thing as Executive Privilege, but, ii) the Court not only had the power to adjudicate the limits of that Privilege, but the duty to do so. This was true even though the current disagreement was "intra-branch," i.e., it was a dispute between one branch of the Executive Department (the President) and another branch of the same Department (the Special Counsel.)

The Court concluded that the Constitutionally-implied privilege was, however, quite limited. In that criminal investigation, it was limited to matters of military security and foreign policy. Inasmuch as the recorded conversations under subpoena involved neither, the Justices unanimously ordered the President to comply with the subpoena. (He did so. The tapes showed Nixon obstructed justice, the Barry-Goldwater-Conservative Republicans abandoned him, and he quit.)

Plan B:

Why is all this history relevant now? Because, I sense that President Trump has come up with Plan B to deal with the Mueller report. Trump has now insisted that he see it first, so he can block out all matters subject to Executive Privilege. I can smell this from a mile off. Inasmuch as the Mueller report will certainly deal with aspects of Russian involvement in the 2016 campaign and afterward, -- and possibly the involvement of other nations as well -- Trump will assert that it therefore involves matters of foreign policy, and that will give him grounds to withhold the entire report, or at least the most damning parts of it.

Can he get away with that? Sure he can. After the House of Representatives voted 420-0 to require the entire Mueller report to be published, the President  tweeted it was all a "game," and that he had told the Republican House leadership to allow the Republican members to support the resolution because it made no difference.  Doubtless he knew his new best friend, Lindsay Graham, would prevent the House resolution from ever reaching the Senate floor. It was clear that Graham, as part of his new brain transplant (or spinectomy, if you will), was now part of the McConnell/Graham tag team to protect this President.  (Is it a coincidence that both McConnell and Graham are up for re-election in 2020 and will be 100% reliant on the Trump base for their survival?)

Will Trump's Plan B work? Surely the House will subpoena the Mueller report (if it doesn't leak first) and the matter will eventually reach the Supremes. But that raises  a number of questions:

First, when will Mueller be finished? Despite press reports from people "in the know" who predicted it would be published  two weeks ago, my guess is months, not weeks. If I am correct, will a final court decision be delayed until after the election? In the Nixon case, despite extraordinary "rush" tactics --(District Judge Sirica's decision was appealed directly to the Supreme Court, which accepted the case) -- it still took three months from the issuance of the subpoena to the Supreme Court decision.

Second, what if, before publication, law-abiding Robert  Mueller is ordered to turn over all copies of his report and all documents supporting it, to the White House? Will he comply? Will the House move to enjoin? How long before that legal mess is resolved?

Next, will Lindsay Graham and Mitch McConnell support the White House on this? Will the craven Senate Republicans who said one thing about the President's executive powers about building the wall, but voted the other way, stand for this? Are there no Barry Goldwaters or John McCains left in the Republican caucus?

And will this Supreme Court, with its new members, especially Justice Kavanaugh, favoring a strong executive, find grounds to distinguish Nixon v U.S.? Or will they hold firm on their avowed conservative "textual" interpretation of the Constitution and vote to reject Trump's Plan B? In other words, will this Court adhere to its declared Constitutional standard that No Man is Above the Law?

And what happens if the Supremes do insist Trump turn over to Congress the non-privileged Mueller report and its supporting evidence, and our President tweets a current analog to President Andrew Jackson's riposte: "John Marshall has made his decision, now let him enforce it."?
What will the spine-free McConnell/Graham Gang do then"

And finally, I herewith reveal that when Michael Cohen, in his open Congressional testimony, said he worried about an orderly transition if this President loses in 2020, he was channeling my darkest thoughts for many months now.

Even during the campaign, Trump publicly toyed with the notion he would not abide by the result if he lost, because the election was "rigged." And after he won, he stuck to that lie with his absurd claim that the only reason he lost the popular vote was that three million illegal immigrants voted against him.

Would he dare ignore the electorate in 2020? And again, what would the spine-free Graham/McConnell Gang do if that happens?

For months now, when I have pondered this question, my mind frequently has gone to a World War II photograph that appeared on the front pages of newspapers throughout the country. In 1944, Montgomery Ward not only sold dresses and hats, its factories in five states produced auto parts, tractors, uniforms, and other materiel vital to the war effort. A complex government program assured labor peace, but MG's chairman, Sewell Avery, was an extreme right-wing FDR hater and refused to abide by the labor agreements. FDR responded by seizing the plants. Avery, born to a rich father, and a product of military school, (I couldn't resist citing the coincidence) said, in effect, "Well, Mr. New Dealer, you have made your decision, but I will not abide by it," and refused to leave his office. FDR sent in troops who carried the wingnut out of the building. The historic photo can be seen below. Can't you, in mind's eye, see Donald Trump in that chair?

 https://iconicphotos.wordpress.com/2009/11/23/sewell-avery-thrown-out/

A bientot!

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

TRUMP'S NEW SUPPORT GROUP

Okay, let's chat about Congresswoman Ihan Omar, Senator Bernie Sanders, Senator Elizabeth Warren, and the new Democratic Left.

Last week, NYTimes columnist Bret Stephens wrote a piece criticizing, as antisemitic, the statements of Congresswoman Ilhan Omar. I was stunned when I scanned the readers' Comments section appended to that article. Many ignored Omar's patent antisemitism, and focused instead on denouncing Israel's policies toward the Palestinians!

What's going on here?

Stephens expressed no opinions about the desirability of a two-state solution, West Bank Israeli developments, or other Israel-Palestinian disputes. The question he raised was the propriety of Omar's suggestion of "divided loyalty" -- that if you support Israel, then that is a scar on your patriotism, i.e., you are less than 100% American.

Omar is hardly the first to suggest that Jews constitute a Fifth Column in the country of their citizenship. Disloyalty to the nation is a standard antisemitic trope. It is the centerpiece of that historic antisemitic fraud, The Protocols of the The Elders of Zion. It was an argument used by Hitler, and he wasn't the first. The assertion that Jews constitute an undesirable "nation within a nation" is a centuries-old anti-Jewish calumny. Countless millions have been murdered on account of that libel.

Equally offensive was Omar's suggestion that it was wealthy Jews who controlled our government's foreign policy on this subject.

Democratic leadership tried to suppress the conflagration by explaining that Omar was "unsophisticated" and simply did not realize what she was saying.

But that ain't gonna fly.

Congresswoman Omar is hardly unsophisticated. She was educated in the United States, and was a "Policy Fellow" of the University of Minnesota School of Public Affairs. She has been a campaign manager, a community organizer, and was sophisticated enough to be selected as part of the team that went to Paris to persuade the international World's Fair Committee to make Minneapolis a host city for next one. She won a seat in the in Minnesota legislature and was part of the minority leadership.

Unsophisticated? She didn't realize the true impact of what she was saying? Please.

If the description of her education and experience is not convincing, let's look at some directly material facts. You remember facts? Once upon a time we relied on them to make judgments.

Some years before she was elected, Omar was quoted as saying, "Israel has hypnotized the world, may Allah awaken the people and help them see the evil doings of Israel."

In January, 2019, when challenged by a reporter, she said she had not recognized the antisemitic implications of those words, and apologized for them.

In February, 2019, in reference to her views on U.S. policy regarding Israel, she said "It's all about the Benjamins, baby." (I.e., $100 bills.) When asked to elaborate, she referred to AIPAC, the pro-Israel registered lobbying group. When publicly criticized again, she apologized again.

In March 2019, she nevertheless persisted, and made the dual-loyalty-trope remark that supporting Israel was the equivalent of "allegiance to a foreign country." Notice, please: Not support, but allegiance. Right out of The Elders of Zion, and perpetrators of pogroms and The Holocaust.

What, she still didn't know what she was saying? Nobody is that dumb. The mistake she made was going public with her real views on the subject.

Okay, at least we now know where she stands. Too bad she is in Congress, but she is only one out of 435.

Nevertheless, the new Democratic left could not leave it alone, and hastened to her support. Yup, we could count on Bernie Sanders, Elizabeth Warren, and new-left tyro Alexandria Ocasio-Cortez, to rush to get their far-left views into the headlines. (Ahh, I was disappointed to see Kamala Harris join that crowd.)

Of course the Republicans are having a field day with this. One could not reasonably expect less. 

Will the Dem-Left crowd keep it up, continue to tweet and refresh the newsworthiness and Democratic support of this antisemitic outlier? If so, that will have an influence on whether we get rid of Trump in 2020.

Sad.

Worse than sad. Horrific.

A bientot.