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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