By Dan Peak
The Commoner Call (6/6/19)
Dear Fellow Readers,
I will begin by acknowledging my frustration with former special counsel Robert Mueller. If impeachment is a process, the hand-off of Mueller’s report to Congress has many problems. The gap between what is reported and the actions that can be taken directly from the report is huge.
Trump is investigated and found to be guilty and the result of Mueller’s report is ‘exoneration’. Horrible.
This gap was avoidable and must be ‘fixed’. It is worth a review of the challenges and possible remedies. Impeachment is not one ‘thing’, it’s a process and if we count Mueller’s work as Stage 1, we’re in Stage 2 leading to a Stage 3 of a formal declaration of Impeachment Inquiry.
Stage 1 end result is a poor set up for future states in the process of impeachment. Wisdom says you have to fix Stage 1 before you jump to Stage 3. The people inheriting the challenge are now House Speaker Pelosi and House Judiciary Chair Jerry Nadler.
In no particular order:
- Mueller let Barr run a public relations campaign for weeks from the time the Mueller report was ‘complete’ to the time it was partially released. Sure there are leaks with voices of frustration from Mueller and Special Counsel Office (SCO), but these were slow to surface and few and far between. Mueller let Attorney General William Barr control the message and process. We still don’t even know whether Barr had Mueller end his process and release a report or whether Barr’s arrival simply coincided.
- I can’t let this pass by without comment: Former Deputy Attorney General Rod Rosenstein did “land the plane” for Trump. If forced to a binary choice – Rosenstein was just one of many Trump enablers.
- The Congressional over-correction in response to the abuses by former Independent Council Ken Starr (Whitewater, Clinton investigation) set the stage for many problems for the current role of special counsel. A special counsel now operates solely at the pleasure of the president and the attorney general with his work product turned over to the attorney general. Worth noting, SCOTUS judge Brett Kavanagh and Rosenstein were prominent members of Starr’s investigation – if nothing else, a reminder of the insider baseball most of us can’t directly witness.
- The decisions made by Mueller are immensely frustrating. Not clearly advising the public that the execution of his responsibilities were always going to operate in the shadow of a DoJ policy that rules out indicting a sitting president.
- Accepting “I don’t remember” written answers to a narrow set of SCO questions by Trump was a horrible mistake. To not force Trump to appear for testimony under oath was a more horrible mistake. Remember, Clinton testified and was impeached for perjury.
- Did Donald Trump Jr. ever appear before a grand jury? To see no charges brought against Trump Jr. over the June 2016 Trump Tower meeting with Russians is a hard pill to swallow if you read Volume 1 Prosecution and Declination Decisions starting on page 174 of the report. The decisions by the SCO are likely the right decisions but to think that Mueller expects us to accept the report as is as his testimony is utter nonsense.
- Volume 2 is a more satisfying read as far as what Congress can, should and will do next to impeach Trump.
- The White House and DOJ refuse to cooperate with the House in any and every way while refusing to turn over documentation, ignoring subpoenas to appear before committee and even advising private citizens and companies to ignore subpoenas.
The Mueller report is frustrating. Frustrating to the point that it leaves me with a feeling that the process was fatally flawed from the beginning and the end result is a product of those flaws.
Trump won, Mueller Lost – We Lost; Mueller is a Marine, Trump is a “Stone Cold Killer”
Given all of the above, Mueller turned out to be an excellent choice for Trumpsters. It was understood; Mueller was never going to challenge convention – there were no apple carts he would overturn. Mueller was never going to indict, Mueller was never going to subpoena Trump, Mueller bent over backwards when criminal acts were outlined in Volume 1 but charges were not brought because in some instances there was no existing case law to lend support.
Mueller accepted every ‘norm’ to the benefit of Trump, never challenging convention even when a court process could have supported actions not taken.
Here is a link to MSNBC host Ari Melber’s program where he has former federal prosecutors Glenn Kirschner and John Flannery debating Mueller’s ‘road taken’ versus ‘road not taken’ – Melber is doing a particularly good job with this subject. It’s an 11-minute video that is particularly good when it gets to a question of forcing Trump to testify – even beyond the observations of who didn’t testify, like Donnie Jr. Feel free to jump ahead to the 7-minute mark if you choose.
Casting Kirschner (maybe unfairly) in the more conservative role versus Flannery in the more aggressive role they debate the various questions surrounding a decision to not force Trump to testify. The apologetic version notes the amount of time it would have taken to force the issue, the complex legal path, the notion that Trump would have simply cited his 5th amendment rights… It is this last point that is most interesting.
Impeachment is Held in a Court of Public Opinion, Not Solely a Court of Law
Kirschner sees Trump taking the 5th as a reason to not force the issue arguing that any court would have to ignore implications of what this might mean for a defendant or witness. Flannery jumps right past this and underscores the political process of impeachment and the value in the court of public opinion – imagine the damage to Trump after his public statements of “Fifth Amendment as the refuge of mobsters”. Trump regaled us with “I would love to speak. Nobody wants to speak more than me. … I would love to speak because we’ve done nothing wrong.”
If Trump had testified he would have perjured himself; just ask his lawyers. If Trump had testified and taken the 5th, he would have looked the fool. Instead he ‘won’ in the public court by not being forced to confront these challenges – he ‘walked’ and falsely crowed “exoneration”.
In a second Melber segment Flannery lays out the tension of Mueller needing a new round of funding in September 2018 to continue his work. And then sets up a SCO realization that Trump had the legal authority to shut down the investigation and dispose of the work performed.
Above the Law Managing Editor Eli Mystal offers the point that the Mueller team is embarrassed. Eli advises, stop playing the game as if you’re trying to stop what the other team is doing, start playing based on how to take the fight to the other team.
Mueller simply MUST TESTIFY
Mueller has to testify publicly and if necessary, repeatedly. If Dems stick to the 5-minute window for each committee member to question Mueller it is highly likely that additional appearances would benefit from a process where a limited set of interrogators are given the collective Dem time.
There are so many questions.
Harden Your Game, Dems – What Would Republicans Do?
Get yourself a TV lawyer or lawyers. Flannery looks good if you consider cable news appearances as auditions as Trump does.
Republicans are willing to ruin careers, ruin reputations, ruin lives – Comey, Baker, Strzok, Lisa Page, Brennan, Mueller… I’m not advocating that but there are many Trumpsters who are guilty even if not of the crime used against them. I mean take Trump adviser George Nadler who was just arrested (again) for the transport of child pornography – he appears as an arranger/fixer throughout the Mueller report – he set up the Seychelles back channel meeting between one of the Russian oligarchs reporting directly to Putin, the head of the Russian sovereign wealth fund Kiril Dmitriev and Blackwater founder Trump adviser and brother to Sec Education Betsy Ross, Erik Prince. The intro failed because Dmitriev took a distrust and dislike to Prince – imagine. https://www.huffpost.com/entry/george-nader-child-pornography_n_5cf61138e4b0e8085e3f7e5a
I mean this as offered: Pick the foulest fish in the very full and tainted Trumpster barrel and go after them. Who becomes the first to be indicted over failure to appear for a subpoena as an example.
More to follow, this is meant as an assessment and a call to action for Dems – all of us, not just Pelosi or Nadler. Put on your game face and take it to the other team, stop reacting.
Read the damn report.
Don’t take my word for it, take the word of these former Republican federal prosecutors making the case for Trump’s guilt with obstruction. It is thorough, simple and damning: Link to 2+-Minute Video
Impeach. We have to impeach to uphold the rule of law – consider politics as part of the process, but not in lieu of impeachment.