This is a companion piece to a posting on the same day: Crisis in American democracy: Time to impeach?
Here are the realities. To understand it means getting into some weeds. There are some fundamental protections of American democracy hanging in the balance. The White House getting away with stonewalling Congressional subpoenas undermine guardrails our founders designed to protect us from an autocratic ruler, whether we call them a King, a strong man, a dictator, or an autocrat. A White House who proclaims they are not subject to the law or to Congress is a near and present danger to democracy. We now have an Attorney General, Trump's appointee, Bill Barr, Trump's appointed attorney general, comes equipped with existing views that firing those investigating the President is not a conspiracy to obstruct, even if the act has a corrupt intent to protect his hold on power. Trump's Barr believes the executive branch is the one to sit in judgment of possible criminal activities of their head, the President, as he declares the Special Counsel Robert Mueller 'sReport exonerates Donald Trump of obstruction of justice in spite of the report that provides evidence of at least ten attempts, or endeavors, to obstruct the investigation into widespread Russian interference in the 2016 elections. The Justice Department's own manual based on numerous court decisions is that the accused does not need to succeed in obstructing justice, but only needs to "endeavor" to do it, but both Barr and the president's own attorney, Rudy Guiliani choose to ignore that fine point. The techniques they are using are ignoring all House committee subpoenas and/or claiming executive privilege.
We have seen this scene before. It is the Richard Nixon anti-impeachment strategy all over again and we know how that turned out. Legal experts say case law favors the Democrats. Unlike the Nixon history when Democrats controlled both the Senate and the House,, the Trump administration is counting on a GOP Senate majority and a more friendly Supreme Court to help them out. Trump on other issues has viewed the Supreme Court as his ally since he appointed two of the justices with many views similar to his. Furthermore, since both Clinton and Watergate impeachment attempts, the rules have changed, putting the Department of Justice in charge of the special counsel investigation.
https://www.nytimes.com/2019/05/02/us/politics/subpoenas-trump-congress.html
Last week the issue came to a head in Congressional scrutiny of Attorney General Barr and the dawning by those who read the latently released Mueller report that the president was not exonerated of obstruction of justice crimes as Barr had deceptively argued in his infamous March 24 “summary” of the report findings. Barr failed to appear before the House judiciary committee May 2 and has so far failed to turn over the unredacted the version of the Mueller report and the underlying evidence. Wednesday, May 7, Barr was to be charged with obstruction of Congress and the White House is claiming executive privilege on subpoenas as they play keep away of the full Mueller report from Congress. They are expected to use the same delay, obstruction tactic for the key witness in the obstruction of justice, White House Council Don McGahn, and testimony by Robert Mueller himself who thought his report would be going to Congress for the appropriate remedy. The Trump administration vows to fight every subpoena issued by the House of Representatives for administration witnesses to appear or documents to be produced. They fear above all TV coverage of witnesses testifying would give voters their own chance to decide for themselves who was lying. Richard Nixon tried that same strategy, with the articles of impeachment including a charge of abuse of power as well as obstruction of justice. Regarding the crime of conspiracy, Trump was indeed exonerated by Mueller.
Impeachment is similar to a criminal indictment and the Senate holds a trial and sits in judgment with the power to send the President packing. The process does differ than a criminal indictment and requirements. In impeachment, the articles (charges) the burden of proof is whatever the House says it is and it defines high crimes and misdemeanors. This is in contrast with a criminal investigation and prosecution. The Mueller findings look for "proof beyond a reasonable doubt' to justify criminal indictments, but the Department of Justice and a ruling by their legal counsel do not permit the indictment of a sitting president. The remedy lies with Congress, the impeachment process, and indictment after the President leaves the office.
Here are the realities. To understand it means getting into some weeds. There are some fundamental protections of American democracy hanging in the balance. The White House getting away with stonewalling Congressional subpoenas undermine guardrails our founders designed to protect us from an autocratic ruler, whether we call them a King, a strong man, a dictator, or an autocrat. A White House who proclaims they are not subject to the law or to Congress is a near and present danger to democracy. We now have an Attorney General, Trump's appointee, Bill Barr, Trump's appointed attorney general, comes equipped with existing views that firing those investigating the President is not a conspiracy to obstruct, even if the act has a corrupt intent to protect his hold on power. Trump's Barr believes the executive branch is the one to sit in judgment of possible criminal activities of their head, the President, as he declares the Special Counsel Robert Mueller 'sReport exonerates Donald Trump of obstruction of justice in spite of the report that provides evidence of at least ten attempts, or endeavors, to obstruct the investigation into widespread Russian interference in the 2016 elections. The Justice Department's own manual based on numerous court decisions is that the accused does not need to succeed in obstructing justice, but only needs to "endeavor" to do it, but both Barr and the president's own attorney, Rudy Guiliani choose to ignore that fine point. The techniques they are using are ignoring all House committee subpoenas and/or claiming executive privilege.
We have seen this scene before. It is the Richard Nixon anti-impeachment strategy all over again and we know how that turned out. Legal experts say case law favors the Democrats. Unlike the Nixon history when Democrats controlled both the Senate and the House,, the Trump administration is counting on a GOP Senate majority and a more friendly Supreme Court to help them out. Trump on other issues has viewed the Supreme Court as his ally since he appointed two of the justices with many views similar to his. Furthermore, since both Clinton and Watergate impeachment attempts, the rules have changed, putting the Department of Justice in charge of the special counsel investigation.
https://www.nytimes.com/2019/05/02/us/politics/subpoenas-trump-congress.html
Last week the issue came to a head in Congressional scrutiny of Attorney General Barr and the dawning by those who read the latently released Mueller report that the president was not exonerated of obstruction of justice crimes as Barr had deceptively argued in his infamous March 24 “summary” of the report findings. Barr failed to appear before the House judiciary committee May 2 and has so far failed to turn over the unredacted the version of the Mueller report and the underlying evidence. Wednesday, May 7, Barr was to be charged with obstruction of Congress and the White House is claiming executive privilege on subpoenas as they play keep away of the full Mueller report from Congress. They are expected to use the same delay, obstruction tactic for the key witness in the obstruction of justice, White House Council Don McGahn, and testimony by Robert Mueller himself who thought his report would be going to Congress for the appropriate remedy. The Trump administration vows to fight every subpoena issued by the House of Representatives for administration witnesses to appear or documents to be produced. They fear above all TV coverage of witnesses testifying would give voters their own chance to decide for themselves who was lying. Richard Nixon tried that same strategy, with the articles of impeachment including a charge of abuse of power as well as obstruction of justice. Regarding the crime of conspiracy, Trump was indeed exonerated by Mueller.
Impeachment is similar to a criminal indictment and the Senate holds a trial and sits in judgment with the power to send the President packing. The process does differ than a criminal indictment and requirements. In impeachment, the articles (charges) the burden of proof is whatever the House says it is and it defines high crimes and misdemeanors. This is in contrast with a criminal investigation and prosecution. The Mueller findings look for "proof beyond a reasonable doubt' to justify criminal indictments, but the Department of Justice and a ruling by their legal counsel do not permit the indictment of a sitting president. The remedy lies with Congress, the impeachment process, and indictment after the President leaves the office.
The key to much of this is the judiciary and how much their members honor the oath to support and protect the Constitution as opposed to swearing allegiance to Donald Trump. An independent judiciary is the fundamental requirement of a democracy. The first step any modern-day wannabe dictator has used to make his once democratic country a rule by a person is to replace the judiciary with loyalists, thereby destroying the ability of courts to hold the strong man to existing laws of the land that are supposed to be applied equally to political friend and foe. In democracies, an independent judiciary and the rule of law are entwined. In dictatorships, judges can be counted on to rule in favor of the great leader and against dissident voices. In spite of Trump and the Senate fellow travelers trying to fast track stuffing the courts with loyalists to Donald Trump, the only power still standing in the way of whether we are ruled by law or by a self-serving person who decides what the law means, is an independent judiciary that we hope still exists. Having successfully appointed two justices, Neil Gorsuch and Brett Kavanaugh, to the highest court, Donald Trump seems to view the Court as his ally. He recently indicated he would expect them to protect him from impeachment or unfavorable rulings by lower courts and Congress. (The Constitution carefully excluded the Court from the impeachment process, except to chair Senate deliberations).
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Even so, the evidence in the Mueller report was there for all to read of multiple examples of how President Trump had obstructed the investigation into the Russian meddling in the 2016 campaign. Mueller carefully stated in his report the reason why the president was not indicted was because of a Department of Justice rules and a Department of Legal Counsel that a sitting president could not be indicted. That left impeachment, a Congressional action, or prosecution after leaving the office to resolve.
Damning last week was an open letter by a bipartisan group of over 500 former prosecutors who not only said the evidence was there in the redacted Mueller Report for a criminal conviction. From the letter:
“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felonies charges for obstruction of justice..”
The friends of Trump have made some counter legal arguments that Trump cannot be accused of obstruction of justice because he was not obstructing an underlying crime and that, though he may have tried to obstruct the FBI investigation by firing the heads of the investigation, Comey and Mueller, he did not succeed. The Department of Justice manual asserts that the accused only needs to have “endeavored” to obstruct justice, not that he succeeded, and that the obstruction of a criminal investigation alone is sufficient. The Mueller investigation was a criminal investigation.
https://www.justice.gov/jm/criminal-resource-manual-1736-inchoate-obstruction-justice-offenses
https://www.washingtonpost.com/politics/courts_law/trump-views-the-supreme-court-as-an-ally-sowing-doubt-about-its-independence-among-his-critics/2019/04/27/837c3822-682f-11e9-82ba-fcfeff232e8f_story.html?utm_term=.e4237bad4686
https://www.washingtonpost.com/politics/courts_law/trump-views-the-supreme-court-as-an-ally-sowing-doubt-about-its-independence-among-his-critics/2019/04/27/837c3822-682f-11e9-82ba-fcfeff232e8f_story.html?utm_term=.e4237bad4686
https://www.realclearpolitics.com/video/2018/09/05/feinstein_to_kavanaugh_does_the_president_have_to_answer_a_subpoena.html
https://www.washingtonpost.com/politics/courts_law/trump-views-the-supreme-court-as-an-ally-sowing-doubt-about-its-independence-among-his-critics/2019/04/27/837c3822-682f-11e9-82ba-fcfeff232e8f_story.html?utm_term=.e4237bad4686
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