As with all things touching U.S. President Donald Trump, the report of special counsel Robert Mueller is a master class in appearance and reality.
After two years of wall-to-wall coverage of the Mueller investigation, Americans have been told that neither the president nor any of his campaign workers colluded with Russia in the 2016 presidential election. On top of that, there was nothing that rose to the level of a criminal obstruction of justice.
The perception of those two findings leads to one inescapable conclusion: Mueller has vindicated Trump, and the president was right all along on the question of collusion with the Russians. For an administration that has been under a cloud for two years, that is the equivalent of hitting the political jackpot.
The reality of what happened this week is very different from the perception created by the rollout of what little information has been released. For that reason, Trump’s claim that the Mueller report amounts to “complete and total exoneration” is a public relations mirage. Which isn’t to say it may not be taken as an oasis for conspiracy-fatigued Americans.
The old saying applies here: first impressions are last impressions. What lawmakers, the media and the American people have is a four-page letter written by Attorney General William Barr. The letter purports to lay out the principal findings of the special counsel’s report, not the report itself.
While it is true that Mueller concluded there was no collusion between Russia and the Trump campaign that reached the level of a crime, it is Barr’s opinion, not Mueller’s, that clears the president of obstructing justice.
Trump’s heaviest baggage?
On that subject, Mueller wrote that “while this report does not conclude that the president committed a crime, it does not exonerate him.” It was Attorney General Barr who made the determination that “....the Report identifies no actions that, in our judgment, constitute obstructive conduct....”.
It is worth noting that Mueller was not consulted about the letter laying out what were supposed to be his main findings.
This is not hair-splitting. William Barr works for and reports to the president, which has led to the public criticism from the Democrats that the AG is in a fundamental conflict-of-interest in deciding any issue regarding Trump’s legal fate.
Far more important, Barr was on the public record before he became AG as a robust critic of the Russian investigation, a champion of expansive executive powers, and a believer in the constitutional view that a sitting president cannot be charged with a federal crime.
In fact, Barr took the odd step of sending the Department of Justice a 20-page memo on June 8th, 2018 slamming the special counsel’s obstruction of justice investigation into the president. Odd, because at the time Barr was a private citizen, without any factual knowledge of what Mueller had uncovered.
In his unsolicited memo that reads like an application for the AG’s job, Barr said something that must have been music to Trump’s ears - that the Mueller probe was based on a “fatally misconceived” theory that would do lasting harm to the Office of the President if acted on. He was also critical of the number and political persuasion of lawyers hired by Mueller.
Finally, Barr offered another opinion in his memo that would have been appealing to Team Trump. It took direct aim at the scope of Mueller’s investigation. “Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction of justice.”
Not only did Barr believe that a sitting president couldn’t be charged with a federal crime, it also appeared that he thought that Trump couldn’t or shouldn’t be subpoenaed. Just over eight months after writing that memo, Jeff Sessions was packing up his office, and William Barr was attorney general of the United States for the second time in his career.
Reducing the Mueller report to a four-page letter
So after a 20-month investigation involving 19 lawyers, 40 FBI agents, 2,800 subpoenas, 500 interviews, 500 search warrants, and 230 orders for communication records, AG Barr reduced the first message to Americans about what Mueller had found to a four-page letter. And it bears repeating. One of the most significant things he wrote, that there was no obstruction of justice, was his, not Mueller’s conclusion.
The Democrats have vowed not to let that stand. They are now preparing to subpoena the AG and perhaps Robert Mueller himself. They also want the report in its entirety, and all its supporting documents. If all they can get is a scrubbed report without supporting documents, Democrats are threatening to conduct Mueller 2.0 in the House of Representatives.
The bottom line? What should have been a cathartic exercise has simply deepened the partisan divide in America. And created confusion - at least so far. Both sides have emerged from the first rollout of information from the Mueller investigation with powerful bumper-sticker arguments - “Trump Exonerated” for the Republicans, and “Release the Report” for the Democrats.
Of the two, the Republicans have the easier job of political marketing.
For two years, the president’s mantra has been that there was no collusion. A Mueller-weary public will find it very tempting to embrace the president’s assessment, and regard further Congressional digging as churlish; double-jeopardy driven by partisan disappointment in the special counsel’s probe.
The hardest thing for the Democrats will be to keep the American public engaged in a battle that will go on for the rest of the Trump presidency, while other U.S. attorney investigations into things Trump grind on.
Although Barr’s letter is political gold, at least for now, the Republicans, are far from bullet-proof. For two years, the president has stood on his head to deny that Russia interfered in the 2016 election. Post-Mueller, 26 Russian nationals, including 12 Russian intelligence officers, stand indicted. How will the GOP resolve that massive contradiction?
The president has also called the Mueller investigation a hoax and a witch hunt. Yet if that is true, how can he use it to claim total exoneration?
And why are five close associates of the president headed to jail or sentencing hearings, including his former campaign manager, national security advisor and personal lawyer?
Despite the public relations gift they have been given from AG Barr’s letter summarizing Mueller, the Republicans remain stuck with Trump’s baggage - his record in office.
Trump's dismal record is the Republican's now as well
The GOP is led by a president who is credibly accused of paying hush-money to a porn-star and a playboy bunny by none other than his own lawyer; who separated migrant children from their parents and locked them in cages, adding insult to injury by losing count of how many kids are interned; who stands accused in court of turning the presidency into an ATM despite the Emoluments Clause of the Constitution; who fired the FBI director investigating his own campaign; who suggested political opponents should be investigated by the Justice Department or jailed; who pulled troops out of a theatre of war without contacting the commanding officers on the ground; who ran up both debt and deficits to record levels; and who alienated NATO allies while falling in “love” with dictators like Kim Jong Un.
On the biggest issue in the world, Trump has been a dinosaur. Instead of listening to his scientists on the dangers of climate change, the president is putting together a group of national security types to counter the National Climate Assessment. That’s the federal government’s own massive, inter-agency report that recently concluded that climate change is a “serious threat” to the United States.
Some of Trump’s heaviest baggage? The bumper crop of presidential lies. The president has spewed whoppers from the bully pulpit ever since he was inaugurated in front of the “biggest crowd in history,” honest to Sean Spicer.
According to The Independent newspaper, as of January 22, 2019, Trump has told 8,000 “falsehoods,” including misleading statements and blatant lies. That’s about 4,000 a year, or 11 a day.
And then there is the Trump Curtain going up on America’s southern border, the one designed to keep out all those Mexican rapists, drug dealers, and terrorists.
Just one thing. That torrent of human riff-raff Trump likes to conjure up, the ones that put duct-tape over women’s mouths, and turn Americans into dope fiends, doesn’t exist.
In 2017, there were 300,000 apprehensions at the U.S. southern border - the lowest level in 45 years. There were twice as many cases of travellers to the United States overstaying their visas that year, 606,926, than there were apprehensions at the border with Mexico.
Hardly an emergency. As Ann Coulter, the low priestess of the right, put it, “the only emergency in America is that the president is an idiot.” Trump fired back that Coulter was a “wacky nut job.”
Wacky Nut Job @AnnCoulter, who still hasn’t figured out that, despite all odds and an entire Democrat Party of Far Left Radicals against me (not to mention certain Republicans who are sadly unwilling to fight), I am winning on the Border. Major sections of Wall are being built...— Donald J. Trump (@realDonaldTrump) March 9, 2019
These kind of classy exchanges tend to suck all the media oxygen out of the room while deeper matters go unnoticed.
Manipulating the public
Trump is not just Archie Bunker with scads of money, the nuclear codes, and a golf addiction. He is a very cunning manipulator. He uses his daily spew of tweets to bamboozle and deflect from what he is really doing to America, deconstructing core U.S. institutions. The holy trinity of democracy - the courts, Congress, and the free press, are all in his crosshairs.
Take the courts.
During the Trump University class action suit, candidate Trump said that the man who presided over the case, federal judge Gonzalo Curiel, could not be impartial because he was “Mexican.”
In fact, the judge was an American born in Indiana. When that was pointed out, Trump came up with a new way to trash Judge Curiel, saying: “I have a judge who is a hater of Donald Trump.”
Trump’s dictatorial side is on full display in his dealings with the 9th U.S. Circuit Court of Appeals. Trump called the judges’ decision to block two of his executive orders “outrageous.” He then publicly mused about “dissolving” the court.
Here is the most important part. Trump has appointed more judges during his time in office than any other American president - 91 so-called “Article lll” or federal judges, who are appointed for life; two associate justices of the Supreme Court; and 53 judges of U.S. district courts.
This is odd, since Trump has been a lazy president when it comes to making appointments. That’s why there are thousands of vacancies across the federal bureaucracy, including hundreds at the White House, and State Department. So why is he so busy bestowing judgeships?
Trump is simply stacking those courts with judges he believes will lean his way when the time comes, on issues from DACA to Roe v. Wade. With Washington paralyzed by partisan gridlock, and a president who is fond of proceeding by executive order, all the big issues of U.S. politics are court-bound.
If the president can politicize the courts the way he has tried to politicize the office of the attorney general, he can bypass or even neutralize Congress - the body that is supposed to act as a co-equal check on his executive power under the Constitution.
It is worth noting that a majority of members on the American Bar Association Standing Committee on the Federal Judiciary have deemed at least 18 of Trump’s nominees “not qualified.”
Then there is Congress itself.
Trump's 'palace of eunuchs' vs. Democrat-led House
At best, Trump sees Congress as his servant, at worst, an annoying obstacle to be shoved aside like the prime minister of Montenegro. While busily stacking the courts, he has almost completely nullified the oversight role of the House of Representatives and the Senate. He couldn’t have done that without the gobsmacking servility of most elected Republicans. Trump’s is a palace of eunuchs.
When Republicans ran the House and Devin Nunes was chair of its intelligence committee, Trump had his dream congressman. Nunes acted as a willing stooge, working hand in glove with Trump. His secret midnight trip to the White House pretty much exploded any notion of the separation of powers, or the independence of the Russia investigation Nunes was supposed to be leading in the House.
Once the Democrats took back the House, Trump immediately used a speech at the Conservative Political Action Conference, for a frontal assault on the now “enemy” institution. He told his swooning audience that “We have people in Congress, right now we have people in Congress, who hate our country.”
Trump’s modified McCarthyism was an appeal to tribalism at its worst, and a direct attack on immigrant members of Congress, 11 in the House, and one in the Senate according to the Pew Research Centre.
Trump’s final contempt of the House of Representatives? He has flatly refused to turn over documents requested by the House Oversight Committee chaired by Elijah Cummings.
Amongst other things, those documents deal with how the president’s son-in-law obtained his top-secret security clearance, after intelligence professionals around Trump advised against granting it. Cummings will doubtless issue subpoenas for the documents he wants, and Trump will doubtless take the matter to court.
As for the Senate, the President’s contempt for the world’s most exclusive club couldn’t be clearer - except when it is performing as his political butler. The president blasted Mitch McConnell, Republican Majority Leader in the Senate, for losing the fight to repeal and replace Obamacare. “For a thing like that to happen is a disgrace,” the president fumed.
Trump also raged that McConnell’s insistence on upholding the 60-vote rule in the Senate for limiting debate was “robbing” him of legislative accomplishments. Instead, he faces filibusters from the other side.
Trump is as interested in the democratic process, and the independence of the Senate as he is in rebuilding storm-ravaged Puerto Rico. The use of his first veto as president proves it.
There are many things wrong with the president’s declaration of an emergency on the U.S. southern border. As mentioned above, the biggest one is that there is no evidence to suggest that either an “invasion” or an “emergency” is taking place. If anything, there is a humanitarian crisis.
But behind Trump’s fraudulent declaration, there is also a deeper purpose touching the constitutional question of funding. Under the U.S. Constitution, the House of Representatives has the exclusive power of the purse. When the bipartisan border security “compromise” legislation was passed by Congress, it gave the president $1.4 billion for border security. He had asked for $5.7 billion for his wall.
Reluctant to bring about another shutdown of the federal government (the president face-planted on the first one), Trump begrudgingly signed the legislation.
He then promptly declared an “emergency” on the southern border. His ploy was not about protecting Americans from an “invasion” as Trump claimed. It was about enabling the president to raid other federal departments, to seize the money for his wall that Congress refused to give him. By hook or by crook, Trump was going to get around the constitutional law on who gets to allocate public money.
The Democratic leadership in Congress called Trump’s tactic “a lawless act and a gross abuse of power.” This time, the U.S. Senate agreed. With 12 Republicans voting with the Democrats, the Senate overturned the President’s emergency declaration.
That decision was in keeping with the 69 per cent of Americans who don’t think the wall is a priority, as reported by Fortune magazine. With the country, the Congress, and the Constitution against him, what did Trump do? He used his presidential veto to appropriate the money Congress had legally denied him.
A war against journalism
Finally, there is Trump’s view of the media, otherwise known as “the enemy of the people” - a strange choice of words for the president of a country whose democracy is built on free speech.
When Montana Representative Greg Gianforte physically “body-slammed” reporter Ben Jacobs of The Guardian, Trump rushed to the congressman’s defence, calling him, "my kind of guy.”
The president not only endorsed violence against a journalist, he predicted that it would help Gianforte win that November’s election. It may have. But the fact that Gianforte later plead guilty to assault didn’t bother Trump in the least.
The president’s war against the press became so ugly that it prompted the publisher of the New York Times to seek a face-to-face meeting.
A.G. Sulzberger told Trump that his anti-press rhetoric was not just divisive, but dangerous. His own reporters were getting threats. Journalists around the world had been censored, attacked, jailed, and even murdered by dictators who had adopted the president’s concept of “fake news” to justify open season on the press. If anything, Trump upped the ante after speaking with Sulzberger.
The president pulled a Pontius Pilate after the murder of Washington Post contributor Jamal Khashoggi, even though the CIA concluded that Saudi Crown Prince Mohammed Bin Salman had ordered the gruesome killing.
American jobs would be negatively impacted if he took action against the Kingdom. Besides, the president had the prince’s word that he knew nothing about Khashoggi’s slaughter. The White House is still refusing to answer the request from Congress for an official presidential statement on the Khashoggi murder months after the atrocity.
With the exception of the president’s personal PR firm, Fox News, Trump has outdone Richard Nixon in his war with journalists. And it goes a lot deeper than the name-calling that grabs all the headlines. Again, there is a long game that has gone mostly unnoticed.
Trump has threatened on multiple occasions to change the libel laws in the United States to make it easier for public officials to sue journalists who are “purposely negative,” and who write “horrible and false articles.” People like legendary Watergate reporter Bob Woodward.
Woodward recently raised the president’s ire with his new book Fear: Trump in the White House. He wrote that the Trump presidency “was a nervous breakdown of the executive power in the most powerful country in the world.”
The Watergate journalist also hit a raw nerve with Trump when he attributed devastating comments to some of the people closest to the president. Woodward quotes former Chief-of-Staff John Kelly describing Trump as “an idiot” running “Crazytown.”
Trump’s response? Woodward’s book was full of “lies and phony sources." But of course. Fake news.
As much as Trump would like to suppress, or even punish the free press, there is an immovable obstacle in his way - the U.S. Constitution. The First Amendment specifically forbids Congress from passing any law that would limit free speech. The landmark ruling that tested that right is The New York Times v. Sullivan from 1964.
The quick facts. An Alabama city commissioner sued the New York Times after it published an advertisement from a Civil Rights group that he claimed damaged his reputation. Courts in Alabama awarded the commissioner $500,000.
On appeal, the U.S. Supreme Court overturned the lower court decisions based on the First Amendment. The justices found that factual errors were preferable to creating a chill over the use of a seminal right like free speech. As Mr. Justice William J. Brennan wrote, democracies should have “robust” and “uninhibited” debates about all public issues, including public office-holders.
If Trump wants to change the libel laws, he is going to have strike down New York Times v. Sullivan. There is already one Supreme Court justice who is willing to lend the President a hand.
Justice Clarence Thomas now describes New York Times v. Sullivan as a “policy-driven decision” that was “masquerading as constitutional law.”
The justice who became a household name during the Anita Hill scandal wants a redo. Fortified by Trump’s two appointments to the Supreme Court, Justice Thomas just might get one. Should that happen, being a journalist in America could become a far more hazardous occupation.
With the United States teetering over the Trumpian abyss, a great many Americans had been looking to special counsel Robert Mueller, to save the day. Since Congressional votes these days fall almost exclusively on party lines, that was never likely to happen with a Republican majority in the Senate, regardless of what Mueller found. But with the bare bones of Mueller’s conclusions now in, it is almost a certainty that Trump will not be impeached.
Rather than waiting for the legal system to deal with Trump, America will probably have to save itself at the ballot box in 2020.
And maybe even that won’t be enough. What if Trump loses the 2020 election, but disputes the results? As the president recently said, if things really get tough, he’s got the support of the police, the military and the bikers for Trump, and things could get “very, very, bad.”
With Trump now declaring the entire special counsel probe an “illegal takedown,” and vowing a “war on his enemies,” the post-Mueller world is looking a lot like the pre-Mueller one: A contest between perception and reality, with no clear sense of which will prevail.