BETA
This is a BETA experience. You may opt-out by clicking here

More From Forbes

Edit Story

Understanding Mueller

Following
This article is more than 4 years old.

It’s long. It’s dense. It’s complex. It’s detailed. It’s full of footnotes. Once you get into it, it’s gripping. But life is short. For most of us, reading the entire Mueller Report is just too much.

So, let’s dive in at the end, not the beginning. Specifically, on page 248, where the report discusses the role of White House Press Secretary, Sarah Huckabee Sanders, in the firing of FBI Director, James Comey.

In the afternoon of May 10, 2017, deputy press secretary Sarah Sanders spoke to the President about his decision to fire Comey and then spoke to reporters in a televised press conference. Sanders told reporters that the President, the Department of Justice, and bipartisan members of Congress had lost confidence in Comey, [a]nd most importantly, the rank and file of the FBI had lost confidence in their director. Accordingly, the President accepted the recommendation of his Deputy Attorney General to remove James Comey from his position.

In response to questions from reporters, Sanders said that Rosenstein decided "on his own" to review Comey's performance and that Rosenstein decided "on his own" to come to the President on Monday, May 8 to express his concerns about Comey. When a reporter indicated that the "vast majority" of FBI agents supported Comey, Sanders said, "Look, we've heard from countless members of the FBI that say very different things.

Following the press conference, Sanders spoke to the President, who told her she did a good job and did not point out any inaccuracies in her comments. Sanders told this Office that her reference to hearing from "countless members  of the FBI" was a "slip of the tongue ." She also recalled that her statement in a separate press interview that rank-and-file FBI agents had lost confidence in Comey was a comment she made “in the heat of the moment” that was "not founded on anything."

Thus, Sanders was forced under threat of committing perjury to admit that her statements that were deliberately false. Comments made on consecutive days cannot be a “slip of the tongue” or remarks made in the “heat of the moment.” These were lies, pure and simple. Sanders is thus revealed as someone who says things “not founded on anything.”

Yet far from acknowledging that she had misspoken, the next day, as Jonathan Chait notes, Sanders unsurprisingly doubled down on her lie and defended her lie with another lie.

Appearing on CBS This Morning, Sanders was asked, If the lie was a slip of the tongue, what did she mean to say? Sanders refused to answer, instead dissembling: “Look, I’ve acknowledged that the word ‘countless’ was a slip of the tongue. But it’s no secret that a number of FBI, both current and former, agreed with the president’s decision.”

Then Sanders bizarrely—yet predictably—blamed her lie on another lie about Democrats.

I’m sorry I wasn’t a robot like the Democratic Party that went out for two-and-a-half years and stated time and time again that there was definitely Russian collusion between the president and his campaign, that they had evidence to show it, and that the president and his team deserved to be in jail. That he shouldn’t be in office, when really they were the ones that were creating the greatest scandal in the history of our country.”

An Ecosystem Of Lying And Divisiveness

This incident captures the essence of the Trump presidency. It’s not just a culture of lying. It’s become an ecosystem of lying, in which survival in it depends on an ability and a willingness to go on lying and defend lies with even more lies, while also sincerely believing in the ever-changing lies with brazen audacity.

Sanders personifies this ecosystem in precisely the way that her predecessor, Sean Spicer, didn’t. Spicer lied about such matters as crowd size at the Trump Inauguration, but he couldn’t bring himself to believe in the lies he was telling and his disbelief showed.

The incident also shows how the ecology requires blithe indifference to the collateral institutional damage that may be caused by lying. The announcement from the White House that the FBI was in revolt against Comey, was not only untrue. It risked aggravating any pre-existing tensions within the FBI and bringing the FBI into disrepute with the population at large.

Yet the mendacity and the unconcern for its consequences are combined with arrogant self-pity. Trump and Sanders resent being called to account for their lies. As Attorney General Barr explained in his press conference on April 18 in relation to Trump:

As the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks… this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation."

Trump As A Tragic Figure

Thus, as in Shakespeare’s King Lear, Barr presents Trump as someone who not only appears to regard himself as “more sinned against than sinning” but also regards the sins against him as a psychological justification for acting the way he does. Like Lear, Trump may also have within him “undivulged crimes”: the Mueller Report includes twelve ongoing criminal investigations that remain redacted.

Getty

“Trump,” says Kathleen Parker in the Washington Post, “is a villain but also a tragic figure. For him, there is never enough of anything — riches, possessions, attention, and adulation. … he has invited the wrath of millions, and it can’t be easy to shoulder so much disapproval. … a person without empathy — the ability to feel what others do — walks a lonely path. Driven by a lust for the material, such a person doesn’t know the company of what ancient philosophers called the transcendentals—truth, goodness, and beauty, which correspond sequentially to the mind, the will and the heart.”

Whether or not we feel sympathy for Trump, his personal suffering is bereft of merit as a legal or political defense. It’s as if a robber defends his theft by reference to his being in a bad mood. It is startling to see the apparent unwillingness of both Trump and Sanders to admit that the criticisms they receive have something to do with their own trashing of established values and principles, like honesty and the rule of law, as well as Trump’s own oath of office to uphold the Constitution.

Trump: His Own Worst Enemy

Thus, Trump’s almost 10,000 false or misleading statements since taking office, his scant regard for the rule of law and his systematic attacks on the judiciary and the press (“the enemy of the people”) constitute the “sins” that cause Trump to be “sinned against.”

Trump’s inability to satisfy his own need for admiration and respect leads on to a spirit of vindictiveness toward those like the press who have a constitutional duty to examine his actions dispassionately and to point to flaws as and when they see them. Devoid of any hint of generosity or nobility of soul, or any seeming interest in inspiring and uplifting, Trump flails away at his perceived enemies, threatening retribution for their supposed temerity to raise obvious questions.

In a world in which every problem is someone else’s fault, where there is charity for none and malice for all, Trump unsurprisingly encounters pushback and finds himself covered with rhetorical mud, which makes him seethe with even greater fury. He has thus gone a long way to recreating the world of Senator Joseph McCarthy and Roy Cohn, rather than the inspired ambiance of the Founding Fathers and those presidents who went before him.

Should we be surprised that Trump’s opponents see him as a quintessential con man, who distracts and entertains his ‘marks’—his political base—and so convinces them that he is on their side and fighting for their interests, like some folk tale hero, who shows that he is ready, at least rhetorically, to stick it to the elite with insults, even as his actions in tax law and health care appear to do the opposite?

Getty

Saved From Himself By His Staff

Ironically, given his frequent fulminations against the “deep state”, Trump has, throughout the two-year period of his presidency, been saved from himself time and again by his own staff, who have declined to carry out his orders. Otherwise, he would have been more deeply involved in illegal actions than he already is.

Harry Sandick, a former assistant US attorney in the southern district of New York, said that just because the mutiny of subordinates apparently foiled the president’s efforts to obstruct justice, that does not mean Trump was not guilty of a crime.

With obstruction charges, an attempt is as good as the crime. You don’t have to succeed in obstructing, you just have to try to obstruct, to endeavor to obstruct. And it’s pretty clear from the report that Mueller thinks that Trump did in fact try to obstruct.”

Yet more worrying is the fact that many of the staff who acted as guardrails have gone. Those who are left just let things be. Acting Chief of Staff Mick Mulvaney has abandoned any attempt to act as a guardrail, and instead declares that he is "letting Trump be Trump." These are indications that there is rough weather ahead.

The Subject Of The Mueller Report Isn't Russia

The scope of the Mueller probe Report in its origin was Russia and Russia’s effort to disrupt the U.S. election. Yet the picture that emerges from the Mueller Report reveals a larger subject. The real subject of the report is Trump’s systematic effort to demolish truth and to undermine the rule of law.

Thus it wouldn't have mattered whether the subject of the Mueller probe was immigration, or climate change, or trade negotiations, or NATO, or health care, the report would have been similar in tone and content. The names of the key players and the dates would be different, but the underlying themes would be the same: habitual mendacity and in-your-face aggressiveness, a lack of concern for the rule of law, an assault on institutions, such as the press and the judiciary, and vendettas against enemies. When laws are not respected and metastasizing dishonesty becomes the coin of the realm, then the integrity of the government as a whole is threatened.

The Republican Call To 'Move On'

In this dispiriting context, some Republicans are calling for Democrats to “move on.”

“Special counsel Robert Mueller’s thorough, two-year investigation included more than 500 search warrants, 2,800 subpoenas, 40 Federal Bureau of Investigation agents and 500 witnesses,” U.S. Sen. Mike Crapo of Idaho said in a statement. “Since no credible evidence supports charges of collusion or conspiracy with the Kremlin, I am ready to move on from this drawn-out attack on the president.”

U.S. Sen. Jim Risch, also of Idaho, is the chairman of the Senate Foreign Relations Committee. He said, “It’s time for our nation to come together and move forward as one. With the conclusion of this investigation, I hope the Democrats will join us in doing so.”

Yet the threats to America haven’t gone away with the publication of the Mueller Report. Russia continues to try to interfere in America's affairs. Trump continues to make nice with Russia and do things that appear to obstruct justice.

Why It Is Premature To Move On From Russia

In effect, the call to “move on from Russia” is premature. Mueller may have been unable to prove beyond a reasonable doubt a criminal conspiracy between Trump and Russia, but he did unearth considerable evidence of wrongdoing and malpractice by the Trump campaign.

And Russia’s interference was not a one-time interference. Russia is still running interference for Trump, and there is no reason to believe that this will end before the next presidential elections.

Mueller’s failure to prove a criminal conspiracy between Trump and Putin is leading some to draw the wrong conclusion that collusion with Russia is acceptable. Just today, Trump’s attorney Rudy Giuliani said on CNN that “There's nothing wrong with taking information from Russians."

Rather than “moving on” and accepting Trump collaboration with Russia as acceptable behavior going forward. Congressional action is urgently needed. Thus:

  • Are sufficient resources and effort being deployed to thwart further intrusions by hostile powers such as Russia and China in future elections? If not, further resources and effort should be deployed.
  • Election regulations need to be strengthened so that Trump’s behavior doesn’t become the norm.
    • If it is not currently clear that it is a crime for a presidential candidate to publicly request help from a hostile foreign power to hack into an opponent’s emails (as Trump did in 2016), then it should become one.
    • If it is not currently clear that it is a crime for a presidential campaign to share polling data and discuss election campaign strategy with a hostile foreign power (as the Trump campaign did in 2016), then it should be made clear.
    • If it is not currently clear that it is a crime to hold meetings with representatives of a hostile foreign power and welcome negative or stolen information about other candidates (as the Trump campaign did in 2016), then it should be made clear.

Why It Is Premature To Move On From Obstruction

Similarly, with the ecosystem of lying that has been established in the White House and that is now spreading to the Department of Justice and throughout the rest of the US government, legislation is needed:

  • If it is not currently clear that it is a crime for a president to direct staff to commit a crime. it should become so.
  • If it is not currently clear that it is a crime for a president to get involved in the details of the administration of criminal justice if the matter concerns the president himself, it should be made clear.
  • If it is not currently clear that it is a crime for a president to attempt to limit the scope of an investigation in the president’s own administration, it should be made clear.
  • If it is not currently clear that it is a crime for a president to dangle pardons in front of those under investigation or witnesses, in return for loyalty, or as an incentive to commit crimes, it should be made clear.
  • If it is not currently clear that it is a crime to engage in direct or indirect contacts with witnesses with the potential to influence their testimony, it should be made clear.
  • If if is not currently clear that it is a crime to coordinate testimony of witnesses in an investigation into the president’s administration, it should be made clear.

Many of the concerns related to the Trump presidency concern the possibility of conflicts of interest with Trump’s business dealings. These concerns have been aggravated by the fact Trump is the first president in half a century not to disclose his tax returns.

  • If it is not currently a legal obligation of the president to reveal recent tax returns, the legal obligation should be created.
  • If it is not currently a crime for the president to fail to disclose financial conflicts of interest, it should become so.
  • If it is not currently clear that it is a crime for a president to conduct vendettas against those civil servants who give evidence against the president, it should be made clear.

In years prior to Trump, it was generally acknowledged that these behaviors were wrong, if not illegal. Any remaining ambiguity needs to be removed so that the abuses do not continue.

Why The Mueller Report Is Not A Cop Out

Although there was widespread disappointment among Democrats that Robert Mueller did not deliver Donald Trump’s head on a platter à la John the Baptist, the Mueller Report is not a cop-out.

Mueller was pursuing a subtler and longer-term game plan of strengthening the Constitution, not just criminalizing Trump or eliminating him from office. Mueller adhered to the Department of Justice rules of engagement and declined to recommend criminal prosecution of Trump. Instead, Mueller was more intent on laying the basis for institutional change that will prevent these outrages from occurring again.

Should Trump Be Impeached?

Trump is not a singular aberration. Removing him from the body politic will not make us whole again. As the leading Republican, George Conway, wrote last week in the Washington Post, Trump is “a cancer on the presidency,” which requires not only surgery but also structural and behavioral change to restore the country to normalcy.

“The ultimate issue shouldn’t be — and isn’t — whether the president committed a criminal act…The Constitution commands it.... by taking the presidential oath of office, a president assumes the duty not simply to obey the laws, civil and criminal, that all citizens must obey, but also to be subjected to higher duties — what some excellent recent legal scholarship has termed the “fiduciary obligations of the president.”

Fiduciaries are people who hold legal obligations of trust, like a trustee of a trust. A trustee must act in the beneficiary’s best interests and not his own. If the trustee fails to do that, the trustee can be removed, even if what the trustee has done is not a crime."

According to Conway, “Congress now bears the solemn constitutional duty to excise that cancer and start healing the body politic without delay.”

Focusing On Practical Remedies That Protect America

There are risks in Congress spending precious time and publicity on protracted legal battles, partisan fights about releasing documents and struggles to lay the basis for an impeachment proceeding. Focusing attention on such obscure matters related to the past risks communicating that Congress itself has become part of the problem.

As a practical matter, even the redacted version of the Mueller Report gives Congress plenty to move ahead with. In particular, the second volume that deals with obstruction has very few redactions. It provides a cornucopia of information on the Trump White House. Instead of focusing public attention on trying to extract getting the last few bits of redacted information, Congress should be using its air time and its energy to focus on mainly on generating remedies to protect against the kind of wrongdoing that the Mueller Report has now meticulously exposed.

Instead of debates about whether to “investigate or impeach”, Congress should be focused on moving forward with legislative actions that will protect America against future wrongdoing.

Drafting remedial legislation is more important than impeachment because an alternative and simpler remedy to impeachment is near at hand: the ballot box in November 2020. Unless a strong bipartisan majority emerges to impeach and convict the president, Congress should focus its attention on ensuring that the remedy of the ballot box is properly exercised.

If Congress is seen to be focused on backward-looking legal battles or partisan fights over legal details, it runs the risk of helping Trump be re-elected.

It is time for Congress to rise above the partisan fray and present itself as part of the solution, not a continuation of political party bickering.

And read also:

How Attorney General Barr Misled America

Why Attorney General Barr's Allegation Of Spying Is A Body Blow To The Very Idea Of Government

 

Follow me on Twitter or LinkedInCheck out my website or some of my other work here