Sunday, March 31, 2019

It’s Time for Democrats to Let Go of Mueller


Copyright © 2019 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

When you strike at a king, be certain you kill him.
— Old proverb

It’s time for the Democratic Party, and particularly its leadership in the House of Representatives, to let go once and for all of Robert Mueller’s investigation and the forlorn hope that President Donald Trump can be driven out of office early over allegations of collusion with Russia and obstruction of justice. It’s time for the Democrats running the House to step back from the gargantuan investigations they’ve launched against Trump and instead start legislating: passing bills to protect people’s health care, workers’ and consumers’ rights, the environment, national security, a humane approach to immigration and a realistic approach to national security: the issues the Democrats won their current House majority in 2018.
When Trump won the election in November 2016, the Democrats made a fundamental miscalculation about his relationship with Russia. They thought that, by leveling accusations that Russia somehow stage-managed the Trump victory and swung the election to him, they could hook the Republicans’ age-old Cold War animosity towards Russia and split the party off from Trump. They were spectacularly wrong. It was not “Russia” that Republicans had hated during the Cold War: it was the Soviet Union. Once the Soviet Union fell and, after a decade-long “Time of Troubles” between 1991 and 2000, Russia transitioned from a brutal Left-wing dictatorship to a brutal Right-wing one, Republicans were just fine with it.
When President Trump fired Federal Bureau of Investigation (FBI) director James B. Comey on May 8, 2017, the Democrats thought they had him dead to rights. Blowing the White House’s official cover story to smithereens, President Trump told NBC News anchor Lester Holt on TV that he had fired Comey because of “this Russia thing,” and a day later hosted the Russian foreign minister and the Russian ambassador in the Oval Office. Trump told them that by getting rid of Comey he’d made the investigation of his alleged ties to Russia go away. What’s more, he carefully concealed this meeting from the American people by barring U.S. media from covering or photographing it. We only found out about it because Russia’s state-controlled media covered it.
Though Democrats were then the minority in both houses of Congress, they nonetheless called on the Department of Justice to appoint a special counsel to mount an independent investigation of the allegations that Trump had won the election with Russian help, that his campaign officials had conspired with the Russians to do that, and that Trump’s firing of Comey was part of a plan to obstruct justice and cover up his ties to Russia. Deputy attorney general Rod Rosenstein, who had been put in charge of matters relating to Trump and the 2016 campaign because his boss, Jeff Sessions, “recused” — that is, took himself out of involvement with the case — because he’d been an integral part of Trump’s campaign, duly appointed a special counsel.
The counsel’s name was Robert Mueller, and he came with an impressive pedigree. He had served as director of the FBI for 12 years — longer than anyone except J. Edgar Hoover — and, though registered to vote as a Republican, he’d scrupulously avoided partisan identification and had served Presidents of both major parties. At the start of the investigation, even Newt Gingrich, former House Speaker who led the Republicans’ successful takeover of the House in 1994 after 40 years in minority-party wilderness, said Mueller was the perfect choice.
But the honeymoon between Mueller and Republicans — in the White House, in Congress and on the Right-wing media machine of Fox News and talk radio — didn’t last long. Trump himself said Mueller was biased against him, partly because Mueller had asked to be reappointed FBI director after Comey’s firing (an allegation which remains unproven) and partly because Mueller had once been a member of one of Trump’s golf clubs until they had a dispute about fees. Over and over again, Trump, congressional Republicans and Right-wing media called Mueller’s investigation a “witch hunt” and railed that, even though he was a Republican, he had appointed “13 partisan Democrats” as his key staff members, and they were part of a “Deep State” cabal aimed at reversing the 2016 election and taking Trump down by any means necessary.
For 22 months Mueller conducted his investigation, saying virtually nothing to the media and “speaking” only through the indictments he got grand juries to issue. Many of Mueller’s indictments were unusually long and detailed — largely because the crimes he was alleging, especially those involving the Internet and social media, were complicated. Indicting someone for murder, bank robbery or rape is relatively simple; you don’t have to go into long, detailed explanations about what the crime was or why it’s illegal. With computer crimes, you do.
Other special counsels — notably Kenneth Starr, who began by investigating President Bill Clinton’s role in a failed land development in Arkansas and ended by charging him with lying under oath to cover up an extramarital affair — had done much of their work in public. Not Robert Mueller. He kept such a low profile that whenever they needed visuals to illustrate a story about his investigation, news networks like MS-NBC trotted out an old film clip of him speaking to something called “Tabor Academy.” (In case you’ve been wondering all these months, Tabor Academy is described by Wikipedia as “an independent preparatory school located in Marion, Massachusetts … known for its marine science courses.”)
So for 22 months Robert Mueller labored behind the scenes, issuing only one public statement — to denounce as untrue a media report about his immediate boss, Rosenstein — while controversy swirled around him. Republicans kept screaming that he was leading a partisan witch hunt aimed at bringing down a duly elected president and enabling the Democrats to achieve through trickery what they hadn’t been able to do at the polls. (Never mind that three million more Americans voted for Hillary Clinton to be their President than voted for Donald Trump.) Meanwhile, Democrats — especially after their partial victory in the November 2018 midterm elections (in which they actually lost seats in the U.S. Senate but gained a majority in the House of Representatives) — hoped that Mueller would issue a definitive finding that Trump and his campaign had colluded with Russia that would shock enough Republicans to join them in removing Trump through impeachment and conviction in the Senate.

Mueller’s Mountain, Barr’s Mouse

Well, in March 2019 Robert Mueller’s mountain labored and brought forth a mouse, midwifed by Trump’s hand-picked attorney general, William Barr. Trump had laid the groundwork for suppressing a Mueller finding against him by firing Jeff Sessions the day after the midterms and appointing Matthew Whitaker, a thug-like ex-Senate candidate who looked astonishingly like the Dick Tracy villain Cueball, as “acting” attorney general pending confirmation of a new one. The new one, William Barr, had served as attorney general before during the presidency of George H. W. Bush and had been the architect of the mass pardon of virtually all the people convicted by special counsel Lawrence Walsh in the Iran-contra scandal of the mid-1980’s — an action bitterly described by Walsh as “the last cover-up” in that case.
Barr auditioned for the job by writing an unsolicited 19-page memo to the Trump administration during which he called Mueller’s obstruction case against Trump “fatally misconceived.” He also told members of the Senate Judiciary Committee that in order to protect the “privacy” of individuals who weren’t being indicted — meaning President Trump, since existing Justice Department policy says a sitting President cannot be indicted or made to face criminal charges during his term — he might not release the Mueller report at all.
For a month or so before Mueller finished his report and sent it to Barr — and only to Barr, as the regulations under which he was working stipulated — word started to spread through the Washington grapevine that the Mueller report might not be all that Democrats or Trump’s enemies were hoping for. We started getting hints on MS-NBC and throughout the mainstream media that instead of focusing on Mueller and the relatively narrow questions he was charged with answering — did Russia try to influence the 2016 U.S. Presidential election, did members of Trump’s campaign help them, and did Trump obstruct justice by interfering with the investigation of Russia’s role in the election — we should be looking at the broader questions about Trump, including his foundation, his inaugural committee, whether he was violating the “emoluments clause” of the Constitution by using his office for personal gain (“emoluments” is simply 18th-century speak for “bribes”), whether he’d broken campaign finance laws by paying off women he’d had sex with to keep silent.
It was a virtual admission on the part of the Democrat-friendly media that Mueller’s report, when it finally emerged, was going to be a damp squib. So it turned out to be. Aided by a finely honed public relations strategy from an administration whose members sometimes seem to be their own worst enemies, Trump and his associates were able almost instantly to declare that the report had totally “exonerated” him. How did they do it?
First, Mueller turned over his report to Barr. Then Barr, as he was obliged to do under the special counsel regulations, turned it over to the chairs and ranking minority members of the House and Senate Judiciary Committees — Jerrold Nadler (D-NY) and Doug Collins (R-GA) in the House, Lindsey Graham (R-SC) and Dianne Feinstein (D-CA) — and likely to Donald Trump as well. The rest of Congress, the government and the public got only a four-page letter by Barr explaining what he called the “principal conclusions” of the Mueller report: (Barr, for some reason, later denied that this letter was supposed to be a “summary” of the report, but that’s clearly what it is.)
Since the initial release of Barr’s letter, he’s promised us we’ll get the Mueller report — or a portion thereof after he’s finished “redacting” grand-jury testimony, material relevant to ongoing investigations, or to protect the “privacy” or “reputational interests” of anyone mentioned but not charged with a crime (which, as Barr conceded in his Senate confirmation hearings last January, basically means anything that might embarrass Donald Trump: see — sometime in mid-April.
One of the two sentences — or portions of sentences — in Barr’s letter actually written by Robert Mueller are, “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Regarding the other set of allegations Mueller was supposed to be investigating — whether President Trump or anyone in his administration obstructed justice by firing FBI director James Comey or any other actions to impede the Russia investigation — Mueller, according to Barr, said, “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

“Total and Complete Exoneration”

Despite the clear language in Mueller’s report, as quoted by Barr, that his investigation “does not exonerate” President Trump of charges of obstruction of justice, Trump himself went on the warpath almost as soon as Barr’s letter was released. Trump declared that the report was a “total and complete exoneration” that ended the “witch hunt” of the Mueller investigation, and basically sent marching orders both to Democratic Congressmembers and federal prosecutors and Justice Department officials that all investigations into him should now stop.
Indeed, Trump did a good deal more than that. Reflecting the authoritarian, dictatorial tendencies that have been the hallmark of his entire presidency (and of his political statements as a private citizen, businessperson and Presidential candidate for #0 years before that!), Trump’s re-election campaign released an extraordinary letter that amounted to a demand to “television producers” that they blacklist six specific individuals and no longer permit them to appear on TV news shows to comment on Trump.
The six people named in the memo were House Intelligence Committee chair Adam Schiff (D-CA), House Judiciary Committee chair Jerrold Nadler (D-NY), House Intelligence Committee member Eric Swalwell (D-CA), Senator Richard Blumenthal (D-CT), Democratic National Committee chair Tom Perez, and former CIA director John Brennan. The memo referred to them as “Democrat leaders and others lying to the American people by vigorously and repeatedly claiming there was evidence of collusion” during the Mueller investigation, and called on TV news producers to reconsider whether these people “warrant further appearances on your programming given the outrageous and unsupported claims made in the past.”
Trump had already effectively blacklisted Brennan by revoking his security clearance, a privilege usually given to former intelligence officials in case their successors want to ask them for advice on specific policy issues. The Trump campaign’s memo called for “introspection from the media who facilitated the reckless statement and a serious evaluation of how guests are considered and handled in the future,” and said that if TV producers continue to put the six on the air — or any others the Trump campaign may add in the future, since they said the list was not complete — they should  demand that the six “provide the evidence which prompted them to make the wild claims in the first place.”
Adam Schiff has become a particular target not only for Trump but also his supporters in Congress. At a hearing called to discuss something else, all nine Republicans on the House Intelligence Committee presented a letter demanding his immediate resignation as committee chair. Trump himself went farther and sent a tweet demanding that Schiff resign from Congress altogether.
Scott Jennings, Republican political activist and member of George W. Bush’s campaign staff, also demanded Schiff’s political head in an op-ed the Los Angeles Times published March 25 ( “If [Schiff and Swalwell] choose to plow forward, they will look like unhinged conspiracy theorists hell-bent on proving themselves right,” Jennings wrote. “Schiff in particular ought to, at a minimum, step down from the House Intelligence Committee. Honestly, he should probably just resign from Congress in shame.”
Schiff’s response to Trump, Jennings and all nine Republicans on his committee was to list all the instances already in the public record of Trump and his campaign soliciting the aid of Russians against Hillary Clinton and the Democrats. As Rolling Stone reported his remarks (

“My colleagues might think it’s O.K. that the Russians offered dirt on the Democratic candidate for president as part of what’s described as the Russian government’s effort to help the Trump campaign. My colleagues might think it’s O.K. that when that was offered to the son of the president, who had a pivotal role in the campaign, that the son did not call the FBI, he did not adamantly refuse that foreign help — no, instead that son said he would ‘love’ the help with the Russians. You might think it was O.K. that he took that meeting. You might think it’s O.K. that Paul Manafort, the campaign chair, someone with great experience running campaigns, also took that meeting. You might think it’s O.K. that the president’s son-in-law also took that meeting. You might think it’s O.K. that they concealed it from the public. You might think it’s O.K. that their only disappointment after that meeting was that the dirt they received on Hillary Clinton wasn’t better. You might think it’s O.K. I don’t.
“You might think it’s O.K. that the president’s son-in-law sought to establish a secret back channel of communication with Russians through a Russian diplomatic facility. I don’t think that’s O.K. You might think it’s O.K. that an associate of the president made direct contact with the GRU through Guccifer 2.0 and WikiLeaks. You might think it’s O.K. that a senior campaign official was instructed to reach that associate and find out what that hostile intelligence agency had to say, in terms of dirt on his opponent. You might think it’s O.K. that the national security adviser-designate secretly conferred with a Russian ambassador about undermining U.S. sanctions, and you might think it’s O.K. he lied about it to the FBI. You might say that’s all O.K., that that’s just what you need to do to win. But I don’t think it’s O.K. I think it’s immoral, I think it’s unethical, I think it’s unpatriotic and, yes, I think it’s corrupt, and evidence of collusion
“I do not think that conduct, criminal or not, is O.K. The day we do think that’s O.K. is the day we will look back and say that is the day America lost its way.”

Pardons for Services Rendered

Given the prima facie evidence of Trump’s campaign officials meeting with Russians, both directly (the “Miss V from Moscow” meeting at Trump Tower on June 9, 2016 between Donald Trump, Jr., Jared Kushner — Trump Sr.’s son-in-law — and Paul Manafort, then chair of Trump’s campaign, with Russian government-affiliated attorney and lobbyist Natalia Veselnitskaya and at least four other Russian officials) and indirectly (the negotiations between the Trump campaign, independent activists working for Trump and WikiLeaks, which received e-mails “hacked” from Hillary Clinton, her campaign manager John Podesta and the Democratic National Committee by Russian intelligence and made them available to Trump’s campaign), as well as Trump’s own famous call in a public speech to Russia to see if they could find Clinton’s 33,000 “missing” e-mails, it’s hard to see how Robert Mueller could possibly have concluded that “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
We won’t know unless and until we get to read Mueller’s full report, but it seems likely that what he meant by that is that he didn’t have enough evidence for a criminal conspiracy prosecution against Trump’s staff, aides and family members. From what we do know about Mueller’s investigation — particularly the series of indictments and plea deals he announced while it was going on — it seems like Mueller conducted his investigation less like a standard inquiry into political corruption and more like a Mafia case. Prosecutors going after long-standing criminal conspiracies like the Mafia patiently work their way up the organization’s food chain, “flipping” lower-level members and gradually ascending the hierarchy until they reach the capo di tutti capi (“boss of all bosses”) at the top.
Mafia prosecutors have tools on their side Robert Mueller didn’t. First, they have time; they can stretch their work over decades. They can accept that sometimes the Mafiosi they prosecute will be acquitted — often because they’ve intimidated witnesses or bribed jurors — because they can keep the Mafiosi under surveillance and be there to arrest them again when they commit additional crimes. Mueller had a shade under two years. Mafia prosecutors also don’t work under the glare of harsh publicity, with one of America’s two major political parties denouncing them at every turn and calling their prosecution a “witch hunt.”
Third, and most important, Mafia prosecutors don’t have to worry that their capo di tutti capi can give members of their organization pardons. Mafia leaders can threaten to kill people who rat them out, but often that’s counterproductive; lower-level Mafiosi can often decide they’ll be safer in prison, or in federal witness protection, than out and about on the street where their bosses can take them out. From the get-go Mueller and his prosecutors had to worry about the countervailing force President Trump, the ultimate capo they were investigating, could exert to keep potential witnesses silent by dangling them the offer of pardons.
I suspect that the real reason Robert Mueller wasn’t able to prosecute the Trump administration and campaign officials for conspiring with Russians to rig the 2016 election was he wasn’t able to “flip” Paul Manafort and Roger Stone, Manafort’s former business partner and allegedly the principal go-between from the Trump campaign to WikiLeaks. Mueller successfully prosecuted Manafort on tax evasion and other charges stemming from his lobbying work for a former Ukrainian President with close ties to Russia a decade ago, and after being convicted on eight of 18 counts in his first trial Manafort made a plea agreement to testify for Mueller in exchange for leniency on the second batch of charges.
Then Manafort reneged on Mueller. In his alleged “cooperation” interviews he kept lying to protect Trump, and Mueller eventually gave up on him and let him get sentenced. As for Roger Stone — a truly bizarre figure with a tattoo of Richard Nixon on his back (no kidding: I’ve seen it on TV) and a penchant for Nixonesque gestures — he made it clear from the get-go that he wasn’t going to help Mueller nail his friend of decades, Donald Trump. Had Mueller got Manafort and Stone to turn state’s evidence against Trump, his report and Trump’s (and America’s) political future would look quite different. Instead Manafort and Stone both stood with Trump, and he will no doubt reward them with pardons for services rendered.

Dems Need to Get to Work

The ignominious end of the Mueller investigation — especially given the hopes Democrats had for it that it would not only convict Trump’s top aides but bring down the Trump administration — leaves Trump in what is probably the strongest political position he’s been in during his entire Presidency. It drives the final nail in the coffin of the hope for a Trump impeachment. House Speaker Nancy Pelosi had already pretty much squelched that when she gave members of the Democratic caucus marching orders not to seek impeachment, and the end of Mueller’s investigation not only ensures that Trump will be able to finish his first term (unless he dies in office like Warren Harding, who headed America’s most corrupt Presidential adminstration until Trump’s, did in 1923), it significantly boosts his chances for winning a second one.
Democrats still hold a majority in the House of Representatives, and they can still investigate quite a lot about Trump: his international business dealings and whether they violate the “emoluments clause” of the U.S. Constitution (which basically makes it illegal for U.S. government officials to take bribes or do favorable business deals with people in other countries); his use of the so-called (and now closed) “Trump Foundation” as a personal and political piggy bank; the collection of funds for the Trump inaugural and whether it was cover to allow the rich and powerful to buy influence with him; Trump’s tax returns (which he’s refused to release but which Congress could subpoena from the Internal Revenue Service); and the like.
But Democrats who continue the Trump investigations run the risk that the American people will decide they’re just “piling on.” For an administration that has suffered a surprising number of self-inflicted image gaffes, Trump, William Barr and their people have handled the Mueller report with consummate skill. They’ve managed to convey to quite a few of the American people — including those much-talked-about “swing voters” in the Rust Belt who swung the election to Trump in 2016 and could conceivably do so again in 2020 — that the conclusion of the Mueller investigation has “exonerated” Trump not only of the specific charges of conspiracy with Russia and obstruction of justice, but everything.
What Congressional Democrats need to do right now is cut back on the number and range of anti-Trump investigations and focus on legislating. Particularly they need to address the issue that won them their House majority in the first place: health care. Polls in the run-up to the 2018 midterms indicated that voters whose primary concerns were the economy and immigration broke for the Republicans — but they were overwhelmed by the voters whose primary concern was protecting their access to health care. Those voters broke overwhelmingly for Democratic House candidates and essentially gave the Democrats their House majority.
Democrats in the House need to hold open hearings on how to protect people’s access to health care, to improve the Affordable Care Act (colloquially still known as “Obamacare”) and work out a smooth, affordable transition to health coverage for all. They should be open to single-payer “Medicare for All” systems but should not make that a litmus test for Democratic Presidential or Congressional candidates. (The national health care system of Germany, in which people are insured through a number of competing non-profit corporations, is a conceivable alternative to both the current profit-driven U.S. system and single-payer.)
In addition to health care, House Democrats should also be working on infrastructure programs and how to fix the inequities in current international trade deals without scrapping altogether the concept of a global economy, the way Trump wants to do. They should be holding hearings on how to deal with America’s real drug problems, including the rising addiction rate to prescription opiates, without making the hysterical mistakes of the neo-Prohibitionist era in the 1970’s. They should also be holding hearings on how to balance America’s immigration policy between humane concern for immigrants and safeguarding economic opportunities for Americans threatened by corporations’ ability to hire an immigrant workforce for sub-minimum wages and few or no legal rights.
And they should be holding serious hearings about how to deal with the rising threat of climate change, including how to fund a transition to renewable energy (which, like reforming health care, is likely to carry a high initial price tag even though it’ll be cheaper for the American people, as both taxpayers and consumers, in the long run). Instead of batting around slogans like “Medicare for All” and the “Green New Deal” that only invite cynical but effective attacks by Republican propagandists, they should be looking for solutions that could, with a Democratic Senate, conceivably be enacted into law.
The Democrats in the House should write, debate and pass bills to address these issues even knowing that they will never be enacted into law as long as there is a Republican in the White House and Republicans control the U.S. Senate. Right now Senate majority leader Mitch McConnell can personally kill any bill he doesn’t want to become law simply by refusing to let the Senate vote on it — a far-ranging dictatorial power I don’t think any of the framers of the U.S. Constitution wanted one person to have. If the House Democrats are able to pass a legislative agenda and claim that these wonderful bills can become law if only voters give Democrats back the President and the Senate as well, the Democrats can build an impressive case for turning Trump out of office in 2020 and it won’t matter anywhere near as much who their Presidential candidate will be.
What’s more, Donald Trump has already given Democrats a huge boost in carrying out this agenda. Flush with the political capital he’s earned by what he’s called (and a lot of American people believe is) his “total and complete exoneration” by Robert Mueller, the first thing he went after is his quixotic attempt to repeal the Affordable Care Act. Trump says he’s got an alternative in mind that will be simpler, cheaper and cover more people, but it’s what computer executives call “vaporware” — a software program a computer company announces to scare off competition but which in fact doesn’t exist. (Ironically, there is a health-care plan that would be simpler and cheaper than Obamacare and would cover more people — but it’s a Canadian-style single-payer system which Trump has already denounced as “socialism.”)

Trump has given the Democrats a rare opportunity to show that they, not he, are on the “people’s side.” If the Democrats want to win the Presidency and the Senate in 2020, they have to use the power of their House majority to show the American people that they can actually govern — that they can come up with bold, progressive proposals that will benefit ordinary Americans, and it’s only Trump and the Republican Senate standing in the way. And that means, not stopping the investigations of the Trump administration, but scaling them back to a normal level of Congressional oversight and concentrating on legislating.