AFTER 'MUELLER TIME'
Politics and Prospects in the
Post-Mueller Report era
Tuesday, April 23, 2019
by RICHARD E. BERG-ANDERSSON
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly, or inimical, to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.--
Up till now, I have, at least for the most part, avoided- ever since Donald Trump was first elected 45th President of the United States- the proverbial "800 pound gorilla" (or, perhaps [given potential political, even future electoral, effects on the Republican Party], "the elephant" might be the better metaphor) in the political/electoral "room": that which I have, in at least one recent Commentary of mine, referred to simply as... Russia!
I was always very careful, throughout the 2018 Election cycle- whether while being interviewed for articles appearing in 'cyber-print' on the Internet, or during guest appearances on satellite radio- to not allow the ongoing Mueller Investigation, along with its subject matter, to at all color my own 'takes' on the political "tea leaves" as so opined, by me, on such occasions: indeed, I tried my utmost to keep such analysis and interpretation- as we went on through the most recent Primary "season" and, thereafter, into the Fall Campaign for the 2018 Midterm Elections itself- based strictly on the more usual "data points" that, biennially, seem to most affect the electoral fortunes of the Parties and individual politicians seeking office.
But, now that the Mueller Report (in however a redacted a form) is out and about the 'Public Square', it is time for me to address its potential political, as well as electoral, ramifications in at least one of my Commentaries for this website. I do so now.
Truth is: over the past now more than two years since President Trump was elected, I had 'NOD' [No Objective Data] regarding whether so-called 'Collusion' (in quotes here because it appears not at all within the Federal Criminal Code [USC Title 18]; thus, it is a political, and not a legal, term) between the 2016 Trump Campaign and agents- whether directly, or indirectly, such- of the Government of the Russian Federation had actually occurred. Certainly I admitted of the possibility, but not necessarily its probability, principally because the various and sundry reports of same in the media, as well as from other sources, also- often, as not- suggested that many persons at the higher levels of the Trump (later 'Trump/Pence') Campaign of 2016 (many of whom continued on into the Transition, if not even through it, and on into the Trump White House, or at least within the more general Trump Administration) were largely inexperienced, or at the very least naive despite experience (except for, now rather obviously, Paul Manafort, among others), and thereby rather unable to all that well exploit whatever political, or other, intelligence might well have been supplied them (again: indirectly, if not directly) by Russian contacts. Thus, there likely was no equivalent of even a 'verbal contract' between those supplying "dirt" helpful to the Trump Campaign, and concomitantly harmful to Hillary Clinton and her allies (and the recently released Mueller Report clearly points out that it takes at least two to so 'collude' in order for such to rise to a level of potentially criminal Conspiracy)...
simply put: either the Trump Campaign, or its agents outside it, got not much all that useful from the Russians and/or what they might have actually gotten was largely wasted (the Russians being far more successful in their manipulation of Social Media and other Internet-based open sources of data and information in their attempt to "put their thumbs on the scales" of the 2016 General Election here in the United States for their own purposes)-- or such had been my own thinking throughout the past nearly two years since Robert S. Mueller 3d was first appointed Special Counsel.
Generally speaking, the Mueller Report- in its Volume 1- seems to bear this out. Many of the more visible supporters of Donald Trump's candidacy close to, where not actually inside, his 2016 Campaign appear to have been the more interested in 'whose turn [among their opponents] was it in the barrel' than in a more serious, where not also sinister, covert political insurgency much more along the lines of that once created by the Nixon White House and the then-Committee to Re-elect during the 1972 Election cycle; instead treating Hillary Clinton's Campaign and the Democratic National Committee much in the manner children treat a neighbor on whose doorstep they have placed a paper bag filled with dog poop, lit it on fire, and rung the doorbell, after which they merely run away so as to later gather at the home of one of the kids whilst chortling at their own mere imaginings as to what that neighbor's reaction "must have been"...
nonetheless, such "frat boy"-style foolishness- whether, or not, engendered by abject stupidity- is, in and of itself, not a crime (either Federal or State); and, in the main, this is pretty much the very linchpin of that which kept many of those involved from facing a Conspiracy charge.
Obstruction of Justice, however, always seemed, to me, to be "a whole 'nother matter"! And, if anything within the Mueller Report might have "sticking power" as we now go on into the 2020 Election cycle, it is the seemingly numerous attempts (outlined in the Mueller Report's Volume 2) by the President to thwart an investigation into whether- and, if so, how much- Russian political operatives, most of whom who were (and are) tied- either directly, or indirectly- to Russian Intelligence services, might have been able to manipulate, and thereby exploit, the Trump Campaign (both before, and after, his nomination by the Republican Party)-- whether or not, in turn, those in that Campaign were (as I've already said) the least bit aware- let alone capable, or competent, to even be so aware- of such manipulation and/or exploitation.
For the question still well begs: why all the deception post facto? The more usual electoral campaign, on behalf of a more usual presidential candidate, would have far more likely contacted Law Enforcement (the FBI, at the very least!) not all that long after, to here take at least one glaring example, Russian representatives sought (and got!) that now-infamous June 2016 meeting at Trump Tower: but the Trump Campaign did no such thing. And (the many) episodes such as this one- whether largely unknown until now (thanks to the Mueller Report), or already become the subject of discussion within the 'Public Square' aforehand- were thereafter, over the past now more than two years, treated as if such public knowledge of them was among the worst things that could possibly happen to this Administration!
Why all the cover-up if there was, in fact, nothing at all to so cover up?
Thus, the most important question of all, as I now type this, is the following: why did President Trump immediately think it meant "the end of [his] Presidency" when Mueller was first appointed Special Counsel? As has been the case with so many mysteries in 'real time' throughout American Political History, only Time to Come will provide the answer...
but, meanwhile, we all wait in any event.
Modern Political Science sees Government as consisting of three basic elements: Administration of the State itself, popular Accountability, and Rule of Law... The image here is that of the Executive (either in the person of the President himself, or the workings of an Administration that bears his name) inside a "bubble" (yes, the very "sphere" of its Power) and ever pushing out against the walls of that bubble in order to attempt to expand it (yes, indeed, truly "pushing the envelope"), while both popular Accountability (in the form of the duly elected members of both houses of Congress as representative of the People) and Rule of Law (Jurisprudence: the application of law through rulings handed down by the Courts in live "cases or controversies" brought before them) attempt to press the walls of that same "bubble" back inward.--
I, for one, do not at all subscribe to the currently prevailing notion that an incumbent President of the United States cannot be indicted, tried, and thereby held accountable for criminal acts committed while in office-- and I have held to this opinion consistently, going all the way back to the 'Watergate' era, now more than four and a half decades ago (although, I have to admit, the basis for this opinion of mine has only become stronger since then-- especially once I had taken two semesters of Constitutional Law as a college undergraduate back in the late 1970s, and have well "kept up with the literature" since).
For there is nothing within the Constitution of the United States of America itself that precludes a President from facing contemporaneous criminal prosecution, as disruptive as same might well prove to the conduct of his/her own Administration. Rather, the concept- within the Federal Department of Justice- that a President of the United States cannot be indicted for a crime while still in office is merely custom, the byproduct of a "finding" by the Office of Legal Counsel within the Justice Department (at base, an administrative equivalent of judicial obiter dictum) that was itself engendered as an adjunct to the question as to whether or not a sitting Vice-President, specifically Spiro Agnew, could be held criminally liable while still in office, as he eventually was [Agnew's conviction of crime forcing his own resignation on 10 October 1973, some ten months before that of President Nixon himself]).
Those who claim that the Constitution itself does, in fact, prevent a sitting President from being indicted, and thereafter criminally prosecuted, are principally misreading, misconstruing and/or misapplying the last portion of Article I, Section 3, clause 7 of that document, which reads as follows:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The argument in favor of a constitutional bar against criminally prosecuting a sitting President holds that, as the phrase Party convicted... nevertheless... liable and subject to Indictment, Trial, etc. follows the extent of Judgment via Impeachment alone, the Framers of the Constitution intended the President of the United States to be fully exempt from criminal liability until, at the earliest (if he or she does not finish out his/her term), after he/she had already been removed from Office upon Impeachment by at least two-thirds of United States Senators. The problem with this argument is: the President is not the only Federal officer liable to Impeachment (and subsequent Removal); so is the Vice-President (already criminally liable without Impeachment, per the aforementioned 'Agnew precedent'), along with all Federal judges; in addition, the clause in the Constitution cited in defense of that position is part of a general Impeachment clause (in relation to which the prosecution of Vice-President Agnew provides the very example which brings that whole "house of cards" down!)
In order to try and understand just what the Framers of the Federal Constitution themselves might have intended, we have to go back in History:
Truth be told, the Framers met in Philadelphia during the summer of 1787 to debate, and draft, what turned out to be a wholly new document replacing the Articles of Confederation did not spend a great deal of time on Impeachment and its ramifications, at least as compared to the many other dicey constitutional issues they were dealing with throughout the Convention; although it was clear, from the start, that Impeachment would be something, within the new Constitution, to hold over the heads of those within both the National Executive and the independent Federal Judiciary (neither of which existed under the Articles) that the so-called 'Virginia Plan' (largely the work, behind the scenes, of the relatively young Delegate 'Jemmy' Madison) initially presented on 29 May of that year as the Convention itself got underway.
Impeachment, in the modern constitutional sense of the term, dates back to at least the late 14th Century (in fact, the first Impeachments in England were in 1376)- although it harked back to more ancient practices of trying important issues (those which we would, today, call major felony prosecutions); in particular, those which made the accused offender potentially subject to the Death Penalty- before an assembly of notables (a 'Parlement'), rather than in the then-prototypes of what we today call 'courts'. By the late Medieval period, the only effective way to try persons in positions of State power (Crown Justices, and judges of King's Bench- as well as what we today would call officers of Administration [all considered 'Officers of the Crown', for there was- as yet- no distinction between Executive and Judiciary, as all were "executing" Law]) for misusing their positions of trust and status was Trial by the House of Lords upon Impeachment by the House of Commons (during which trial, the latter would act as "the Prosecution" in all such cases).
Britain would effectively abandon Impeachment by the early 19th Century (Cabinet Government, by then in at least nascent form, would allow for removal of the Executive [His, or Her, Majesty's Government headed by a Prime Minister] through Vote of No Confidence in the House of Commons, rendering Impeachment obsolete within the Westminster system of Parliamentary governance); however, by the late 18th Century, Impeachment of State officers- executive and judicial- had been written into at least 10 of the 11 State Constitutions adopted in the wake of Independence (Connecticut and Rhode Island, for the time being, continuing to operate under their Royal Charters, as modified via appropriate legislation during and after 1776). Thus, there was already ample precedent for the new Constitution being erected in Philadelphia to adopt this same concept.
The States, following British precedent, all initiated Impeachment through the vehicle of what the U.S. Constitution itself would come to refer to as "the most numerous Branch of the State Legislature"-- that is, their own respective equivalents of the House of Commons 'across the Pond'; and the Framers met in Philadelphia had little problem adopting this same approach as regarded the role of the lower house of their new 'Congress of the United States':
The Committee on Detail (into the lap of which all manner of thorny issues still outstanding had been dumped by the Convention after 26 July 1787) first reported out, on 6 August, that "the Executive" (still not formally known as 'President') should be "removable on impeachment by the House of Representatives". Reworded slightly (The House... shall have the sole Power of Impeachment), this was adopted- and without debate- by the Convention on 9 August (rather ironic as, exactly 187 years later, a President threatened with Impeachment would resign from office on that same date) and this provision, indeed, ended up as the last portion of Article I, Section 2, clause 5 of the Constitution as finally drafted and adopted come September of that year.
But problems ensued when it came to deciding just which body might try those who might be so impeached by the House!
Part of the problem stemmed from the very British practice regarding Trial upon Impeachment the Framers themselves would, throughout the Convention, be implementing: for the House of Lords not only functioned as the upper house of Parliament, it was also the High Court of Justice in Britain (the Privy Council then still functioning as the 'supreme court' for British "Dominions across the seas"-- as it once had for its American Colonies prior to Independence). On the other hand, however, the Convention was always, as things turned out, to be conceiving a system which would separate judicial and legislative functions, no less than it would separate the executive from both the legislature and the judiciary (thus, there was to be no Federal body that would, like the House of Lords, be both legislative and judicial in nature; as a result, this became a rather thorny issue as regarded the trial of impeachments).
The 'Virginia Plan' had originally- as the Convention began (and the 'Virginia Plan' rather quickly emerged as the Framers' "working template")- provided that "the Judiciary" would handle "impeachments of any National officer" (keep in mind that, early on, it was not yet known whether or not the "National Legislature" [not yet known as 'Congress'] would be unicameral, or bicameral; nor was it yet known whether or not the "National Executive" would be one person, or a [presumably small] committee). Clearly, the original drift of the Framers was to- at all practicable costs- avoid making the Executive dependent upon the Legislature (thus, the Judiciary was the only place- at least at first- to deal with Impeachment of the Executive, along with any ancillary officers carrying out Administration thereunder [the concept of a 'Cabinet' was, of course, never ever broached by the Convention]). This provision was actually formally adopted by the Convention, in 'Committee of the Whole', on 13 June.
But, as often happened in the course of the Constitutional Convention, an issue already seemingly decided was later reconsidered; and, on 18 July, the Convention (now having "risen" and, thereby, no longer in Committee of the Whole) struck this same provision out, leaving it (again) to the Committee on Detail to sort out. After rather easily reporting out that, as easily later adopted, provision for Impeachment by the House, the Committee on Detail also proposed that what would become known as the 'Supreme Court' would try all impeachments (again, on grounds that- where officers of the Executive be impeached- having the Senate do so would make them answerable to Congress, negating Separation of Powers: seeing Impeachment as much more a legal process than a political one still seemed to be the better option).
Then a relatively quick change, one which began when, on 22 August, a provision was adopted that "the judges of the Supreme Court shall be triable by the Senate" (obviously, an answer to objections that the High Court should not be allowed to try its own members [only the legislative houses- following British precedent, established during the Puritan Rebellion (which culminated in the Regicide of 1649), and later practice in most of the several States- would be permitted to discipline its own]); but this very provision soon gave rise to an idea that, as the Committee on Unfinished Portions would issue on 4 September, the Senate shall have the sole Power to try all Impeachments (a provision that was adopted as the opening sentence of what is now Article I, Section 3, clause 6 on 8 September [despite failed efforts by James Madison himself to return to judicial trial of all impeachments except those of the judges themselves: Madison was clearly afraid Impeachment of the President in particular might yet render that Office subservient to Congress]).
The only remaining concomitant issue, within the process of Impeachment and Removal, was just how far such a thing might go as regards the official so being impeached, perhaps, yet remaining in legal jeopardy in relation to the same acts for which he had also been impeached. This particular question (that ultimately answered by the above-quoted Article I, Section 3, clause 7) was dealt with rather quickly, and without all that much comment, by the Convention:
On 28 August, the Convention took up a provision reported out by the Committee on Detail- one which was actually worded exactly as Article I, Section 3, clause 7 currently appears (wording adapted largely from Article XXXIII of the New York State Constitution of 1777)! After a relatively short period of debate, it was adopted 'as is' and the later Committee on Style made no change to it. This wording was thereafter adopted in toto by the Convention on 14 September (an attempt, that same day, to add the words "provided that persons impeached be suspended from their offices until they be tried and acquitted" to the clause having failed).
The point of all the above detail about the Framers' work is to illustrate that, among the least controversial aspects of Impeachment procedure was- along with the lower house of Congress being the impeaching body- the very notion that impeachable officers of Government (including, yes, the President) still be held liable for any criminal offenses despite, or even regardless of, any such Impeachment.
Why, then, should the President of the United States, alone among all those within the Executive and Judicial branches of Government, be treated any differently than any other officer liable to Impeachment? For the principal Impeachment provision in the Constitution- Article II, Section 4- itself makes no such distinction, as it reads:
The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Yes, it is true that, when the Framers did deal more fully with Impeachment, their ensuing discussions tended to revolve around the office that would come to be called 'President of the United States of America':
As noted above, the 'Virginia Plan' provided that the Judiciary would have jurisdiction over "impeachments of any National officer" (including, presumably, the Executive[s] in chief; delegate Charles Pinckney would also present his own plan of 'Foederal Government' which included the notion that a [single] Executive could be impeached). On 2 June, delegate John Dickinson proposed that "the executive be made removable by the national legislature, on the request of the majority of the legislatures of individual states"; this proposal was rejected, but the Convention- now in Committee of the Whole- did adopt a provision that the Executive "be removable upon impeachment and conviction of malpractice, or neglect of duty" (the first reference by the Framers to just what offenses by a public official might actually be impeachable) and this was within that which, still in Committee of the Whole, the Convention formally adopted on 13 June and, thereby, reported out to the "risen" Convention.
Two days later was presented the so-called 'New Jersey Plan' (a counter-proposal, by the smaller States, to that which had been reported out by Committee of the Whole [itself largely based on the original 'Virginia Plan', seemingly favored by- and to the advantage of- the larger States]) which included a provision (at least partially inspired by Dickinson's earlier proposal) that the Executive "be removable by Congress on application by a majority of the executives of the States", but this particular proposal was ignored as the Convention- having now "risen" out of Committee of the Whole- discussed, on 20 July (the longest period of debate on anything having to do with Impeachment, as it turned out), the reasons for impeaching, in particular, the (by now, to be a single) Executive .
Some proposed that the Executive (again, not yet known as 'President') himself should not be subject to Impeachment, but only his agents: this, however, was rather quickly shot down (largely on grounds that this proposal was too 'monarchical'), and a provision that he "be removable on Impeachment and Conviction of mal Practice [sic] or Neglect of Duty" adopted instead- albeit one that, like all the others approved by the Convention hitherto, was dumped into the lap of the Committee on Detail come 26 July. That committee had made an important change, by the time it reported back to the Convention on 6 August, with their provision that the President (as the chief executive office was now to be called) "be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of Treason, Bribery, or Corruption".
The switch to the Senate, rather than the Supreme Court, as the trying body upon Impeachment is, of course, recounted earlier in this piece. Meanwhile, no change was made to the reasons a President could be impeached until, in the Committee on Unfinished Portions, the provision (as reported out by this committee on 4 September) had been truncated to merely "for Treason or Bribery". When debate on this provision ensued on 8 September, delegate George Mason proposed adding the words "or mal Administration [sic]" but James Madison objected, on grounds that the term was much too vague; Mason then proposed the by now-well known phrase "or other high Crimes and Misdemeanors against the State", which was adopted by the Convention (with the sole exception that the last part was changed to "against the United States") and then passed on to the Committee on Style.
Up to this point, less than ten days before the final draft of the original text of the Constitution would come to be approved by the Convention, all of this discussion (such as it was) as regarded the constitutional reasons for Impeachment only involved the President. On that same 8 September, however, a provision that "[t]he Vice President and other civil Officers of the United States shall be removed from Office on Impeachment and Conviction, as aforesaid" was also adopted (the first specific reference at the Convention to the other Federal offices liable to Impeachment), almost as something of an afterthought.
Perhaps it was much too much of an "afterthought", however: for it was the Committee on Style that, come 12 September, reported out the current wording of Article II, Section 4 (formally adopted by the Convention on 14 September)- a provision that holds all other Federal (Executive and Judicial) officers to the exact same standard as is held the President (and, thereby, makes no distinction either between, or among, them-- as regards either Article II, Section 4, or Article I, Section 3, clause 7!).
The connection with the very core of what has since come to be known as "Madisonian" 'Institutional Egalitarianism' is, therefore, herein most clear: as each of the three Branches of Government are co-equal, no one Branch has inherent supremacy over the other (and, where one Branch does get to do certain things- things innate to its own organization and purposes alone- in contradistinction, where not also in relation, to the other two, the reason for this is principally one of practicality [as opposed to mere convenience], so long as it does not conflict with the Constitution itself). Hence, my own characterization as quoted above, ahead of this section of my piece, of the President being in a "bubble"-- ever pushing outward as the other two Branches seek to push back and, thereby, hem him in.
Saying, instead, that a President of the United States (alone among all other Federal officers- Executive and Judicial) cannot be held criminally liable while still in office is, indeed, the effective removal of at least one of the two checks on the Executive Branch (arguably, the more important one: that of 'Rule of Law'); moreover, it allows for a President of the United States (any President of the United States) to continue to engage in that which might well be construed as criminal activity so long as he remains in office! This appears most contrary to the Framers' intent, considering their own evident (from the records of the Constitutional Convention of 1787) concern with just such things as "mal Practice", "mal Administration", and "Corruption".
I cite all the above, only so that the reader can fairly discern just where I stand (and have long stood) on this issue, an issue that will be germane to the subject matter of this piece. The Framers were, as I have often stated in many an earlier Commentary of mine for this website, creating- in the Presidency- an "elected King" (or "Queen", should the United States someday have a female President): a home-brew (albeit non-hereditary) version of the English Crown, against which the War for Independence had been fought, but with which they themselves had all grown up... but they never intended this "elected King" to ever be above Law itself!
Nonetheless, the fact remains that Special Counsel Mueller, in the very report that bears his name, chose (indeed, was required: he being an employee of the U.S. Department of Justice, after all) to hew to the Office of Legal Counsel's "finding", thereby dumping the issue of holding the President accountable into the lap of that Branch of the Federal Government actually responsible for popular Accountability-- that is, Congress-- rather than continuing to try and adjudicate the issues he and his team of prosecutors had been investigating before those more responsible for enforcing Rule of Law (the Federal courts, although said courts will certainly find themselves involved, in any event, as we go along here).
Trump doesn't seem to all that much care for, let alone about, the other two elements of Governance at the Federal level- the very ones constitutionally charged with hemming his High Office in, pushing back on the Executive "sphere", on two sides: Popular Accountability through Congress (just wait until congressional investigations of various and sundry activities of the Trump Administration really get underway [Russia or no, they're coming!] as Congress- no less than Media- attempts to keep pace with the work of Special Counsel Robert Mueller [who, or so it appears, remains ever ahead of both]) and... Rule of Law via Jurisprudence in the Federal Courts--
As, indeed, this President seemingly still does not... and, yes, there are some (perhaps many; though it would be most unfair to say "a majority") of those who most fervently support him, even now, who see little- if anything- at all wrong with this.
Yet, when I wrote those words, roughly a year and three quarters ago, I actually thought that at least some Republicans in either house of Congress (the Grand Old Party still being in control of both chambers at the time) would at least prove concerned enough (if only on base political grounds: the preservation of the 'Legitimacy' [a concept I discussed at no little length toward the end of an earlier Commentary of mine, in which I noted that 'Legitimacy' has a political definition: one based on the apparent willingness (or not) of the American People to accept their President as leader of the Nation, regardless of whether or not they might have actually voted for him] of a President who had been nominated by the National Convention of their own Party) to seriously look into some of the various and sundry questions (mysteries, really) revolving about the Trump Administration at the time. I was to only be rather disappointed throughout the service of the 115th Congress.
No, I was not thinking here about the potential removal of President Trump from office; I wasn't even considering its desirability (or, for that matter, lack thereof). I simply thought that it would be in the best interests of Republicans in either house of Congress to, later if not sooner, get to the bottom of what was going on. The equation itself was- as it yet remains- simple: either clear President Trump and/or those around him (whether these had been at the higher levels of his 2016 Campaign alone, or later followed him through the Transition on into the White House/Administration) of wrongdoing (ethical, where not outright criminal) or, if not, hold those accountable who needed to be so held through the proper forum and, in the meantime fix the problem so it doesn't happen again!
Instead, the Grand Old Party (both within, and outside, Congress) clearly made a base political calculation- pretty much the same one I myself would make (for I ever held fast to my own prediction that the Democrats would take control of the U.S. House of Representatives, as difficult as it would be [and, indeed, proved to be] for them to wrest control of the United States Senate from the Republicans, throughout the 2018 nomination and election process [in fact, over the course of many months during last year, I deviated very little from what I would come to write on the eve of the General Election and always took the position that, as so posted last 5 November, [m]ore than likely,... even were the Democrats to so "pad their lead" in the U.S. House of Representatives, it would have very little concomitant effect on most of the United States Senate seats currently held by Republicans and up for grabs in this election-- which is what, more or less, ended up happening])- that it was better to try and get as much of the GOP agenda as might be practicable through Congress (on the not too risky assumption that President Trump would sign same into Law)- all while 'whistling while passing the graveyard' and, thereby, ignoring (if not also trying to stifle) concerns about what we were more and more hearing about as 2017 became 2018- before the Democrats could gain control of at least one house in the next (the 116th) Congress via the ensuing 2018 Midterm Elections.
There are many, among President Trump's most fervent supporters, who argue that the whole Mueller Investigation was itself a colossal waste of time and money: but, if this be so, such "waste" is, indeed, the fault of at least most of the Republicans in Congress. For they, had they but so chosen, could have- by using the same Subpoena Power of which the Democrats in the U.S. House of Representatives now avail themselves- gotten to the bottom of things (thereby finding out, to here quote then-candidate Donald Trump re: a different issue, "just what the hell is going on") nearly two years ago now (and there might not then have been any real need to even wait for the Mueller Report)!
But the vast majority of those within the Grand Old Party paid "no attention to the man behind the curtain" mainly because they didn't (and still don't!) want to know- indeed, were (and are) afraid to know- just what might actually lie behind said "curtain". As a result, it would prove to be the General Elections of Tuesday 6 November 2018- those determinative (well, except in one case) of the political complexion of the ensuing 116th Congress- that would provide the political "shove" necessary for there to be any meaningful congressional action in this regard.
And, as things have turned out, the political complexion of that 116th Congress is significantly different from that of its predecessor: for the Democrats now controlling the House also thereby hold that Subpoena Power and, as a result, what I have quoted from myself immediately at the head of this section of this piece (in particular, the phrase just wait until congressional investigations of various and sundry activities of the Trump Administration really get underway [Russia or no, they're coming!]) is much more the case currently than it had been even when I first wrote this!
Meanwhile, many Republicans (still in control of the Senate, of course) seem far more interested in investigating the origins of the Mueller investigation itself (Trump's current campaign manager, among others, recently trumpeting that "the tables have turned" on those he has decried as "liars who instigated this sham investigation into President Trump", claiming that it originated in "political retribution and based on no evidence whatsoever" [this despite page after page of such evidence in the Mueller Report itself]): to this, all I can say is 'Be careful what you wish for, you just might get it'. In other words, there may well be a most thorough inquiry (somewhere: if not by one or more committees of the Senate, then within the Attorney General's office) into the origins of what eventually became the Mueller investigation; however, the Mueller Report itself strongly suggests that it might actually be best, especially on the part of those who most support the President, to simply let sleeping dogs lie...
which, however, they won't... and, thereby, will simply provide (as once did the sequence of events within what came to be called the 'Watergate' scandal of my own youth) much interest- if not even no little entertainment- for seasoned political observers ('wonks' all) such as myself, especially if it (as currently seems more than likely) carries over into, and past, at least the opening months of the 2020 Presidential Election campaign-- if not beyond.
[By the way, this tactic- popular among at least some within the GOP- of "Investigating the Investigators" is, indeed, a rather intriguing tack: for, as I have implied just two paragraphs back, opening up just such an investigation on grounds that the investigation itself might be at least somewhat tainted, where not also nefarious, the more risks primarily emphasizing that which was itself being investigated (much more so than the actions of the investigators themselves), if not even turning over newer rocks revealing yet more that we do not right now know (despite the thoroughness of the Mueller Report). Perhaps that is the underlying motive itself: for it is quite possible that at least some Republicans- in and out of Congress, even within the Administration itself- privately disturbed by what they find in the Mueller Report, while yet publicly disputing its adverse impact upon the President (where not also disputing its very outline of events), secretly hope that an investigation into the investigators might produce material that later forces them to publicly break with the Trump White House, without having to as publicly reveal their earlier, private concerns...
put another way: attacking the initiating basis of the Mueller Report (the original investigation of President Trump, and his 2016 Campaign, by the FBI that later became that of Special Counsel Mueller and his team of Federal prosecutors) might well, in just such a case, provide "cover" for a later political turnabout by at least some of those currently so attacking: something to keep an eye on as the "political wars" of 2019 (and on into, if not even through, 2020) continue apace!]
However, despite any and all of this, the 'ball' (and, therefore, the political momentum at present) is now clearly in the Democrats' 'court'; and this, in turn, creates a real quandary for the Party of the People as it (and its members, individually) attempts to best answer the question as to how much, or how little, to press the ongoing, inevitable investigations into many, where not all, things Trump by several House committees (why? Because they can!) on into what might, or might not, eventually become a full-blown Impeachment Inquiry by the House Judiciary Committee before this Congress adjourns sine die sometime late in 2020.
But just as did the Republicans of the 115th Congress, the Democrats of the 116th are also now making their own base political calculations: worrying about just how much their inquiries into elements of Trump's Presidency (financial connections, both at home and abroad [to my mind, the most potentially problematic for the Trump White House]; campaign activities [as we now head towards 2020]; and the like)- let alone an actual Impeachment Inquiry, perhaps, down the road- might harm, more than these might aid, the ability of the Party of the People to elect the next President (as well as take control of the Senate, while still holding on to the House) a little over 18 months from now (this in addition to also not wanting to be seen as being most politically responsible for fomenting a full-blown Constitutional Crisis). To here once again quote one of my U.S. History professors at Boston University back in the day, the late Robert V. Bruce: "The best Impeachment is, more usually, the next Election"... key words here, however: "more usually" (the Democratic majority in the House being left to decide whether this particular political situation we now find ourselves in is, in fact, unusual enough).
Whatever the Democrats in Congress (or at least a clear majority of them) might decide to do- or not do- in the coming months in relation to all this, we all should be able to see that Founding Father, good ol' Al Hamilton, was as right as he was prescient: that all of this, indeed, will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. In fact, it already has done so (and was doing so well before the Mueller Report was even written)!
Russia!, of course, still looms all too large within all this. And the Trump Administration just can't seem to ever get in front of this story. In large part, this is because it is filled with people who, frankly, don't think they should even have to do so ('"They" are ever against, as well as after, us; therefore, we shouldn't give in to "them"'-- a veritable Cult of the Paranoid); it is, as of yet, not necessarily about people in and about the White House- however unwittingly or no- becoming recruited into an overall cover-up of nefarious activities... put another way: just how many people came down to Washington this past half-year or so simply so they could end up in serious legal jeopardy? There may well come a point where middle-level White House personnel are not going to so willingly go down with- or for- President Trump, his top-level advisers or even his family.--
RICHARD E. BERG-ANDERSSON: Commentary for TheGreenPapers.com of Thursday, July 20, 2017
Despite the conclusion of 'no Collusion' (at least, insofar as being able to sustain a charge of Conspiracy, as defined in Federal Criminal Law be concerned) in the Mueller Report, the Trump Administration still has yet to get in front of this story (and, again, largely for the reasons I stated- as quoted above- some 21 months ago now).
Simply compare the current state of things with the 'Iran-Contra' scandal of the 1980s. Not only did President Ronald Reagan eventually get in front of that story, he broke the story! (Although the sales, and resultant covert shipments, of arms to the Islamic Republic of Iran had already become known, no one outside the innermost circle of the Administration also knew that proceeds from said sales/shipments were being used to fund the 'Contras'- those fighting the 'Sandinista' regime in Nicaragua- until President Reagan himself surprisingly strode before the assembled Press and told them all about it on 25 November 1986). Likewise, the day after the Tower Commission Report (which looked into the affair) was released on 26 February of the following year, President Reagan resolved to reorganize his White House much in the manner the Commission itself had recommended.
Although there was certainly much grumbling, and surely no little indignation, within (and among its partisans without) the Reagan Administration regarding the ensuing 'Iran-Contra Hearings' conducted by a Joint Committee (that is: one containing members from both houses of Congress) over the course of three months during the following summer, the Reagan White House successfully got in front of this story in the end (and Reagan himself left office, after two terms, in January 1989 with a higher Approval Rating than he had had when he was first sworn in as President eight years before: in the midst of the whole 'Iran-Contra' affair two years earlier, that would not have been so easily predicted by even his most fervent supporters).
Not so this White House!
For instead of an at least public posture of Correction, where not even Contrition (despite, perhaps, private umbrage at having to do so), the attitude of the Trump White House appears to be one of defiance-- one of 'Catch me at it if you can'. Doubtless, again, there are many supporters of the President who actually like it this way (in the manner of cheering on the outlaw "sticking it to the Man": whooping it up as, say, the perpetrator engendering a police chase continues to elude capture while it is all being broadcast 'live' on television thanks to cameras mounted on news helicopters, even though rational thought should inform one that the health and lives of other drivers and their passengers, not to also mention pedestrians and bicyclists, are ever being put in jeopardy-- and more and more so the longer the pursuit goes on).
As a result, and despite the finding of the Mueller Report as to no 'Collusion' (in the criminal Conspiracy sense, as opposed to the already-explained silly ["frat boy"] sense), the Trump Administration has still not gotten in front of this story! While I find it rather hard to believe that the White House, as an institution, is singularly unaware of this, it is nonetheless altogether possible that the same foolish/stupid "kids lighting a bag of dog poop on fire" dynamic I described earlier in this piece as once having infected the upper echelons of the 2016 Trump Campaign may well still be driving at least some of the more negative reactions to the Mueller Report, and its clear implications, within the Administration itself (as well as among many a Trump acolyte in Congress, throughout the Grand Old Party itself, along with media more friendly to President Trump)...
in any event, all the 'whistling while passing the graveyard' of late therefrom seems most deafening!
It is, to be admitted, way too early to right now (at this typing) know just how the Mueller Report- along with what those of either Major Party (again, within Congress [both houses!], as well as outside it) will, or will not, decide to do- will impact upon the outcome of either the presidential nominating process, or the Presidential Election itself, come next year. But we can already know that each and every such decision- whether made by a House (or Senate) committee, or by either the Attorney General or the prosecutors of cases still outstanding (or even not yet filed-- even among, say, the several States by local prosecutors outside the Federal system), or even by the Trump White House/Administration itself- will, in their respective turns, only serve to engender other (often as not countervailing) decisions by relevant actors in the ensuing political "drama" throughout the rest of this year, and on into the next:
Bring yer popcorn!