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No Virginia, Everybody Does Not Do This…

I wrote this post the day I finished the Mueller report. All it needed was an edit and grammar check. That was 6 days ago.

Six days in our current political environment is a lifetime, so much so that I have re-written, deleted, and re-written again this blog post several times. Inside of a week, we have had Congressional subpoenas filed and ignored. The Treasury Secretary has twice blown off requests for the President’s tax returns, a request clearly in line with a public officials’ anti-corruption statute. White House officials, on the order of the President, refuse to testify before Congress. The Attorney General has been publicly flogged for misrepresenting the Mueller report and now there is speculation that the DAG helped “fix” the probe’s outcome. And the President is painting the entire Mueller report as a failed coup d’etat, attempted by “sick, sick, people” and 18 angry Democrats.

I’m not sure where we are or where we go now. I’m politically disoriented. The state of our democratic republic is not a high priority in the minds of most Americans and as a result, our institutions and norms have been allowed to deteriorate. That deterioration did not begin with Trump; no, Trump is the result of decades of malaise. Our lack of interest in the fundamentals has led us to an executive branch, rife with corruption, and ready to delegitimize our democratic and republican (lowercase ‘d’ and ‘r’) traditions.

Many Americans have not linked the privileges we enjoy in a first world nation, to the health of our body politic. But they are intricately linked. One is dependent on the other. Our democratic and constitutional underpinnings and our faith in the rule of law have resulted in generations of domestic and economic stability. Of course, we have had downturns; the late 60s and early 70s were a time of intense instability when the anti-war movement, civil rights campaign, and women’s equality coalesced in rebellion against social and political “elites.” Certainly, we have had economic uncertainty. Go back a decade and you’ll find serious financial distress. But in each of these dark moments, the “people” always had the reassurance and confidence that our democratic institutions would hold firm. They may sway a bit, but in the back of our minds, Americans have always known that eventually, and with the help of government and civic institutions, life returns to normal.

Today, our first priority is the economy; how well off we are in relation to others. Next comes public policy issues that impact the health and vitality of the family unit and the surrounding communities. Healthcare and prescription drug costs, education, gun control, crime, and the opioid crisis. Voters care about issues that directly impact them, their families, and neighbors. Individualism and humanism may lie in contrast to our religious beliefs, but they are what makes the world-go-round. It’s not a bad thing to care about things that impact us directly. But we have to look past our own kitchens.

At this moment in our history, we need to look beyond our individual and immediate priorities. We must understand current events not as “politics as usual,” but instead as an aberration. We are careening toward a critical historical juncture and are well past disgust and disbelief. We either recommit to this experiment in self-government or we watch the consequences of its failure. Those consequences mean economic and domestic meltdown, martial law, tanks in the streets, and repression. Make no mistake – we have already witnessed the prelude to autocracy. It is a short distance to illiberal democracy.

Constitutional stress

Political pundits have been too loose with the term, “constitutional crisis.” Instead, I have defined most of the last two years as evidence of “constitutional stress.” Our institutions are functioning, but not at optimum efficiency. The courts have helped reign in the administration, but that is of small consolation. For every decision limiting presidential authority, there’s the risk that the administration may be backed up by judicial activism (of the worst kind). The past is reassuring but offers few guarantees. The Mueller report’s 381 pages and 4 appendixes continue to test America’s resolve and the distress call is coming from ‘inside the building.’

Taken holistically, the Mueller report is a perfect roadmap not just for Congress, but for the public as well. The Mueller report and the events described within it are precisely what our Founders predicted. More than 2 centuries ago, a few dozen white men gathered in a Philadelphia courthouse to hammer out details of a new national government. The government they finally affixed their names to was strong enough to ward off foreign enemies and pay down public debts, but constrained and limited in its authority over the people and states.

Over the centuries, we’ve had numerous cleavages – episodes in which we had to fall back on or modify the constitution in order to survive and move forward. Only once in that history has the constitution failed; that one episode was a violent sectional conflict and civil war. Yes, it was the failure of institutions that partially caused the four-year armed insurrection, but a more proximal cause was the absolute refusal by millions of Americans to progress beyond their current economic system and way of life. It was a refusal to acknowledge the death of their social order; one that had to change if America was to move forward. An economic model that required enslaving an entire race and adherence to ridiculous notions of white supremacy. It was the southern elite’s stubborn insistence that slavery and feudalism must expand to the western territories if the “slave oligarchy” was to maintain its economic, political and social power.

But for most of American history, the rule of law has prevailed during times of crisis and holistic change. It must do so again. Today, we are not yet in a constitutional crisis – more of a stress test. But let’s not kid ourselves, the current showdown between Congress and the President could quickly escalate and if not resolved in the former’s favor, future generations will inherit less a democratic republic and more an illiberal and corrupt oligarchy governed by an autocratic executive. This is not an exaggeration. It is exactly the outcome the Founders feared and that which James Madison tried to attenuate by enlarging the republic. A large republic would increase the number of competitive factions (or special interests). Competing interests would offset any one group from assuming too much power, the cause of so many early republics deterioration. Since the founding, autocracy or oligarchy have loomed large in the shadows of representative democracy. Our constitution and form of government, is in part, a response to the failures of those ancient republican experiments. We’ve been lucky.

Mueller’s findings

By now you’ve heard the Cliff Notes version of Mueller’s findings: no evidence of criminal conspiracy and no verdict on obstruction of justice. The report is educational. You’ll learn something. In reading the second volume – 200 pages describing the President’s attempt to shut down or derail the Mueller investigation itself – you will come to understand what is required to prove obstruction beyond a reasonable doubt:

  • An obstructive act
  • Nexus. The attempt to obstruct must be proximal to a specific event (IE – a grand jury, an official investigation, etc.)
  • Intent. Did the accused obstructer act with the intent to subvert justice? Did the accused actions constitute intent?

No one – not even the most ardent Trump supporter or Republican member of Congress could objectively exonerate him after reading volume two. The Attorney General’s attempt to put the President’s actions in “context” – that he was upset and felt he was being treated unfairly – is laughable. The AG’s next purported line of thinking – that the President is innocent of obstruction because he failed to stop the investigation is on its face, absurd. It’s also ironic: Trump failed in his attempt to curtail the Russia probe because of his own cowardice and incompetence. For all his bloviating about “firing” people, he consistently ordered others to obstruct for him. In one case, he ordered his former campaign manager, Corey Lewandowski (a guy who was unceremoniously dismissed right after the RNC, and now a private citizen), to fire the Attorney General if he did not step in and limit Mueller to investigate “future foreign intervention.” (Read that part of the report. Trump dictated the verbiage he wanted Sessions to release. It spoke of unfairness to the President and gave him accolades for running such a tremendous campaign. Sadly hilarious).

As a side, the Mueller report is easy to read and explanatory. The reader walks away with a keen understanding of what prosecutors need to prove in order to get a conviction on conspiracy and obstruction. In volume one, Mueller’s investigators describe the key elements of conspiracy – that there must be an explicit or tacit agreement between parties. The probe did not find indefensible proof because it likely does not exist. To the exclusion of the very real probability that the President knew via Roger Stone when the Clinton email dumps were to occur, campaign officials’ “conspiratorial actions” were limited to the campaign enthusiastically accepting help and benefiting from the Russian attack while simultaneously disavowing its existence.

To my dissatisfaction, we are left with unanswered questions. The most frustrating might be that there is no documented motive. Specifically, there does not appear to be understandable motives for “all the lying.” Why did Michael Flynn lie to the FBI about his conversation with Kislyak? He would have known that our intelligence services were bugging the Russian Ambassador’s phone. Flynn was already under FBI investigation for failure to register as a foreign agent and lobbyist. In that environment, he must have known he risked not only his job but his freedom.

The only potential motive offered turned out to be quite banal. The President was upset about all the Russia talk and wanted the public story (that Flynn had discussed sanctions during his Christmas discussion with Kislyak) killed. According to the report, by December 2016 Flynn was on “thin ice” with the President. We are not told why, just that the President was unhappy with his service and surprisingly, had paid more heed to President Obama’s warning than would otherwise be evident.

Don Jr’s motive for lying about the meeting with the Russians in Trump Tower remains unexplained; Junior refused to cooperate with the probe voluntarily and for some reason, Mueller did not subpoena him. My own guess is likely the true one: the Trumps lie with impunity. They are incapable of differentiating a lie from the truth, such that lies just roll off the tongue. Junior’s glee with the possibility of collecting incriminating information, likely stolen by Russian intelligence, was evident in emails and texts. Had the Russians offered “dirt,” the campaign would have accepted it. No calls to the FBI or other authorities. Winning was more important than adherence to the law.

But it’s the President’s motive for lying about all things Russia, that is, to me, most unsatisfying. True, the President’s aversion to the truth, is obvious to everyone. The Washington Post has identified over 9,000 separate instances of Presidential untruths. At this point, it’s news when he doesn’t lie. But still, why Russia? More important to our national security, why does he refuse to acknowledge Russian cyber warfare (which by the way, is ongoing)? This is important because of its national security implications. According to government sources, we are not doing enough to curtail foreign intervention in our electoral processes. There will be repercussions from ignoring it, including voters’ confidence in the system. In 2016, Trump and his advisors knew very well that the Russians had hacked the DNC, DCCC, and Jon Podesta’s email account. At the same time that Trump blamed a 400-pound kid in his bedroom, his inner circle knew the Russians were intervening to help him win. The campaign even had a media strategy to take advantage of the timely email dumps.

Ego. That may be the primary cause of all the nonsense, particularly the President’s failed attempts to obstruct the investigation. Multiple witnesses heard the President fret that any acknowledgment of Russian assistance would delegitimize his victory. For Trump, winning the Presidency was the ultimate validation of his own self-worth. To admit that he owed his win to a hostile foreign power, would be tantamount to losing. Any armchair psychologist would diagnose the man with extremely low self-esteem and a lack of self-worth. We see it every day in his insults of the media, particularly the New York Times. He even admitted it on tape last year; the causal factor of his hatred of the Times is that his “home town” newspaper had not adequately acknowledged his accomplishments. Listen to his interview with the Times last year. Hashtag, sad. The country – no, the world – is caught in this unbelievable nexus of disbelief and craziness because a 72-year-old man needs more validation. He may very likely be indicted for obstruction of justice because he was not properly praised enough by the New York Times.

Congress must win this standoff. There can be no other outcome.

Regardless of motive or the Attorney General’s apparent “exoneration of guilt,” we are now on the brink of a true constitutional cleavage. Montesquieu’s separation of powers theory is foundational to the American experiment in self-government. The state’s powers, when spread across multiple levels and branches, should forestall any one institution from becoming too powerful. Separation of powers ultimately leads to checks and balances across federal, state, and local governments. These theories, in practice, have helped to dilute the state’s authority, expose corruption, and preserve institutional legitimacy.

For separation of powers and checks and balances to function, however, all parties must acknowledge legitimacy. The Executive branch must accept congressional oversight; Congress must accept judicial review. Without this acceptance, the rule of law breaks down and the people – the body politic – lose faith in the system. We question whether our constitution, that over time has evolved to meet the modern world’s needs, is still governable. The legitimacy of governmental authority is the entire ball game. Without it, we risk social instability and cohesion. We risk becoming what all of our early critics predicted: a failed republic.

That is why Congress must not back down in its demand for documents and witness testimony. The President tested the constitution in the past; state and federal courts in large part have protected us from his attempts at autocratic rule. A compliant Congress during his first 2 years never exerted its constitutional authority, which gave the President carte blanch to act in accordance with his own selfish motives.

The President’s refusal to recognize congressional oversight and investigative authority must be met with a firm and resolute action. Refuse to turn over subpoenaed documents? You will be held in contempt of Congress, fined, and risk arrest and detention. Ignore a subpoena to testify before Congress? Same. Delay, delay, delay? Get a good lawyer because Congress will haul your ass into the D.C. Federal courts. There should be little compromise. Congress must win all of these battles.

Have other administrations been as obstinate? We have, over time, seen a wide variety of obfuscation – by Democrats and Republicans. In any deliberative system, there will be attempts to circumvent authority. But not since Watergate, have we experienced such willful obstruction. In fact, I fear this is worse. Trump, unlike Nixon, has never exhibited concern for the office or public service. He degrades civil servants and refers to lifetime bureaucrats as part of the “deep state.” Trump is a true but incompetent autocrat – everything revolves around what is best for him. Congress is merely a speed bump.

Voters must support candidates who believe in the rule of law and the sanctity of our democratic and constitutional norms. If your elected representatives have not yet spoken out about Mueller’s findings or the President’s demands to violate the law, ask them ‘why not?’ Go to a town hall meeting and make your position known. Talk to your neighbors. Reacquaint yourself with how this government is supposed to work. Individual voters have limited influence, but a movement makes a difference.

Personally, I am more concerned than ever with what is at minimum, congressional disrespect. While I support Congressional Democrats approach to oversight and their erstwhile intent to follow the process, I fear that they learned the wrong lesson from the Clinton impeachment experience. Republicans under Newt Gingrich enthusiastically pushed impeachment despite the lack of public support. This may have cost a few ’98 midterm seats in both the House & the Senate, but Republicans held majorities in both chambers. Two years later the Republican presidential candidate won (barely) on a platform of “restoring traditional values to the Oval Office.” Republicans paid a very small price for an unpopular show trial.

Nancy Pelosi knows the power of public opinion and if it’s not there, the Democrats will not pursue articles of impeachment. I’m not convinced that history will agree with that decision. If there were ever ‘high crimes and misdemeanors,’ Trump’s attempt to rid himself of the Mueller probe is it. The fact that he failed should play no role in its ultimate judgment.

If Congressional Democrats feel that impeachment is too politically risky (more on that if it happens) then rigorous enforcement of congressional oversight is mandated. And that might mean arresting people who refused to cooperate. And voters – all of us – need to support that possibility.

Congressional leaders need to know that we’ve got their back. Whether you are a committed Democrat or unaffiliated independent, it has never been more important for civic action. You do not need to march in protest. Instead, find out what your representatives are doing and saying about Mueller’s findings. Do they support oversight and investigation into presidential abuse of power? Or have they been “unavailable for comment” since the President was inaugurated? Tell those that believe in the constitution and take their Congressional powers seriously, that you agree with them. For those willing to let the President ignore subpoenas for witness testimony and documents, you need to start caring.

We are way past an unconventional presidency. When former Vice-President Biden framed 2020 as a “fight for the soul of America,” he spoke the truth. Whether Biden is the Democratic presidential nominee is up to the voters, but his claim that our values are at stake is clear. Congressional authority, separation of powers, and rule of law are just three in a long list of values that define the American idea. These fundamental beliefs may not impact daily lives and they may not be kitchen table issues. But without a commitment to them, the nation is lost. The values that have sustained this country through extremely dark times must remain intact else we risk real autocracy. Freedom is the first victim of both anarchy and dictatorship. We all need to prioritize the intangible – values that may not impact your bottom line, but are what make this nation what it is.


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