Monday, May 6, 2019

The Constitutional Crisis Over the Mueller Report

This is my first post of this year.  And for good reason.  I could not fathom that 63 million Americans voted for Donald Trump in the 2016 election.  Or that almost 90 percent of the Republican Party still backs Trump.  I thought it best to wait for the Mueller Investigation to be completed before posting to this political blog again.

In the meantime, life went on as usual.  The Press kept Democrats informed of how the Mueller Investigation was going.  Meanwhile, Fox News kept Republicans informed of well Trump was running the country.  Trump himself was still upset that Attorney General Jeff Sessions had recused himself, and finally, he fired Sessions in November 2018, appointing Matthew Whittaker as the Acting Attorney General.  Whittaker's sole qualifications for the job was that he publicly acclaimed that Trump did not either collude with the Russians or obstruct justice.

The Trump Administration, however, was already working on promoting someone else for Attorney General:  William Barr, who had served as Attorney General under Bush 43, and aided him during the Iran Contra Affair.  Barr's primary qualifications for becoming Trump's Attorney General is that he firmly believed that a President could not obstruct justice.  In fact, he advertised for the job circulating a nineteen-page memo around the Justice Department arguing that Trump could not be charged with obstruction in the performance of his executive actions.   The Republican-controlled Senate confirmed Barr as the Attorney General on Feb 14, 2019.  The stage was now set.  Democrats and Republicans were still awaiting the completion of the Mueller Investigation.

On March 22, 2019, Attorney General Barr announced that Robert Mueller had submitted his full report on the investigation to the Justice Department.  And on March 24th, Barr released a four-page summary of the principal conclusions of Mueller's findings.  Barr reported that Mueller's investigation "did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election." Barr, however, as we found out later, muddied the waters with respect to announcing the results of the Obstruction of Justice investigation.  Mueller, for reasons not stated by Barr, did not reach any legal conclusions as to whether any of Trump's conduct described in the report constituted a crime.  Mueller simply listed Trump's actions in ten situations where obstruction may have occurred.  And Mueller said that "while this report does not conclude that the President committed a crime, it also does not exonerate him."  Since Mueller did not come to a legal conclusion, Barr felt it was his duty to make the legal determination.  In his summary Barr wrote:
Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.  Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting President.
Barr went on to reason that since the President was not involved in a crime related to Russian election interference, that Trump's actions, "many of which took place in public view," could not be construed as obstruction.  Republicans were delirious.  Trump was ecstatic!  No collusion! No obstruction!  Soon, Trump and the Republicans turned vindictive, calling for investigations of "the treasonous politicians and government officials who initiated the investigation."

Barr said he needed time to get the necessary portions of Mueller's report redacted before he could release the Mueller Report to Congress and to the public.  For three weeks all the public heard was "No collusion. No obstruction.  Collusion Delusion."  When the redacted Mueller Report was finally released on April 18th,  Democratic Congressional leaders loudly complained that Barr had misrepresented the results of Mueller's investigation.

The House Committees, now controlled by the Democrats, were determined to consider the evidence of the Mueller Report and continue their investigations of Trump and his administration. And they requested the unredacted version of the report. But as far as Trump and the Republicans were concerned, the investigation was over.  Barr had ruled in favor of the President.  Game over.

All hell broke loose the night of April 30th, 2019.  The Washington Post and then the New York Times leaked a March 27, 2019 letter that Robert Mueller had written William Barr.  Mueller memorialized the letter by submitting it through official channels.  In his March 27 letter,  Mueller mentioned a March 25th letter he had sent to Barr which contained redacted introductions and summaries that Mueller wanted Barr to release to Congress and to the public.  Barr refused to release the introductions and summaries.  Mueller further complained that Barr's four-page summary of March 24th "did not fully capture the context, nature, and substance" of Mueller's work."  Mueller warned that Barr's summary and the subsequent confusion over the results of the Mueller Investigation "threatens to undermine a central purpose for which the Department appointed a Special Counsel: to  assure full public confidence in the outcome of the investigations."

Attorney General Barr appeared before the Senate Judiciary Committee on May 1st.  He was assailed by the Democratic members of the Committee, but supported by the Republican members of the Committee, some of whom called for reopening investigations of Hillary Clinton's Email Server, as well as calling for an investigation of how the Russian investigation was initiated in the first place.

Attorney General Barr was scheduled to appear before the House Judiciary Committee the next day, May 2nd, but did not appear.  Barr also ignored a House subpoena to provide Congress with an unredacted version of the Mueller Report that was due on Monday May 6th.  The House Judiciary Committee was scheduled to vote on Wednesday, May 8th on whether to hold Barr, the Attorney General of the United States, in Contempt of Congress.

In the meantime, the Trump Administration cited executive privilege to forbid current and former Trump Administration officials from testifying in Congressional Oversight Investigations.  Moreover, the Trump Administration has refused to honor all subpoenas for records requested for Congressional Oversight Investigations, in effect stonewalling Congress's Constitutional Oversight Responsibilities.

And that is the Constitutional Crisis.  The Trump Administration's decision to ignore Congressional subpoenas effectively thwarts the constitutional responsibility of the Legislative Branch (Congress) to provide oversight over the actions of the Executive Branch.  Being charged with Contempt of Congress currently has no teeth. Moreover, the Trump Administration figures it will be a slow, slow process, probably all the way up to the 2020 election, if Congress seeks redress through the courts.  If a Trump Administration official is charged and convicted of Contempt of Court, what is stopping Trump from pardoning the official?

And that is how things stand as of the week of May 6, 2019.  The House Judiciary Committee is working behind the scenes to set a date for Robert Mueller to testify before the Committee possibly as soon as the 15th of May.  There are several issues that only Mueller can resolve.  Did Mueller agree with Barr's decision to exonerate Trump? Did Mueller decline to charge Trump with obstruction because of the Justice Department's policy that a sitting President cannot be indicted?  Did Mueller provide the results of the obstruction investigations as a road map to impeachment? Why didn't Mueller issue a subpoena to force Trump to testify before the Grand Jury?  Did Barr curtail the investigation in any way?

Getting Mueller to testify should upset the judicial apple cart of the Trump Administration.  Once Mueller testifies, public outcry should negate Barr's Summary of misrepresenting Mueller's findings, and Trump will once again be in the hot seat.  But voting him out of office will be a far better alternative than trying to impeach him.  The Republican Party has stooped so low that they might always be "for Trump" and never again be "for Country."

It is at this crossroad in American history that we should look back forty-five years to the Watergate break-in and the Watergate Tapes.  In 1974, the Watergate Grand Jury identified President Nixon as an unindicted co-conspirator of the Watergate break-in.  Special Prosecutor Jaworski obtained a subpoena from the grand jury ordering President Nixon to turn over the tapes relating to forty-two Presidential conversations.  President Nixon claimed executive privilege and the case was eventually expedited all the way to the Supreme Court.  One Supreme Court Justice, William Rehnquist, recused himself because he had previously served as Assistant Attorney General in the Nixon Administration.  The other eight Supreme Court Justices ruled unanimously that executive privilege was not absolute and that the needs of a judicial court overrode that privilege.  Jaworski had proved that the tapes likely contained evidence of wrongdoing on the part of Nixon: the Nixon-Haldeman tape, the smoking gun that led to Nixon's resignation.   Will the Supreme Court have to step in again?  And will the two Trump appointees recuse themselves?

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