Flipping People and Throwing Them Under the Bus

Is Donald Trump going to be indicted for a crime and arrested by Robert Mueller?

The answer is no. He is not.

You may be one of Donald Trump’s cult members. What we call one of  The Trumpets.

You may believe Donald Trump is the anti-Christ. What we call Post-Trump Stress Disorder.

Everyone is somewhere on the spectrum of American political views. Donald Trump forces people to have some sort of view about him. It is his nature.

The thing people need to get here is it does not matter where I am on this spectrum.

If I hate Donald Trump or love Donald Trump, this is irrelevant to the answer to the question, “Is Donald Trump going to be indicted?”

To think otherwise is what’s called “magical thinking.” Magical thinking is defined as believing that one event happens as a result of another without a plausible link of causation. Magical thinking is what got us all in this deep dark hole to start with. So don’t do it. Stop digging the hole. We may not be able to fix our issues right now, but the least we can do is put down the shovels.

 

asshole

 

Listen. Please. Magical thinking is everywhere in the media today following the guilty plea of Michael Cohen and guilty sentence for Paul Manafort. This development does not mean the “Get Trump” game is about to end. It isn’t. We knew this this long ago.

Yes. Trump is corrupt. Yes, he’s highly likely to have pulled of many a caper. And yes, like most of the uber-wealthy, in a fair world, he’d be wearing an orange jump suit.

Unfortunately, the Department of Justice (for whom Mueller works), says this about our situation:

“In 1973, the Department concluded the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination. We believe the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.”

This is the DOJ’s official opinion statement about what is going to happen next. So don’t believe the hype if someone tells you otherwise.

We have a system where the president, for practical purposes, is above the law.

The Attorney General is Jeff Sessions, who is not going to prosecute Donald Trump for anything. This DOJ statement has Sessions’ name on it, “Memorandum for the Attorney General.”

The Congress is filled to the gills with politicians who after seeing what he did to the other Republican candidates in the primaries, are scared of Trump and his followers, especially of getting into a “Twitter battle” with The Donald. It’s devolved into high school.

Donald Trump is not getting impeached as long as Nancy Pelosi runs the Democratic constituency of Congress. She says this is a “divisive issue” and isn’t going there. The so-called “Resistance” just might be fake. Ya think?

That’s where we are, folks. The rest is just hype to sell advertising. Doesn’t matter what Sean Hannity, Rachel Maddow, Louise Mench, Alex Jones (or anyone else for that matter) have told you. The media are not the Department of Justice.

What may end up mattering most in the end is if/ when no smoking gun is produced to prove Trump colluded with Putin to rig the 2016 presidential election, then the investigation Mueller started on the grounds upon which he started it is done.

The question then is: can Mueller or Congress plausibly get Trump for something else?

I think this is very important. It seems to be a seriously salient point. I could be wrong.

Think back, during the Bill Clinton impeachment proceedings regarding Monica Lewinsky. Once it had been determined Slick Willy’s sexual escapades did not disqualify him from holding the Oval Office, what if we had said afterwards, “Hey! By the way, Bill… these cigars we found in your desk drawers are from Cuba. What about that? Colluding with communists!”

How would that have gone over?

It might just be me, but after years of Mueller investigation, looking at the prospect of even more years of proceedings and Congress buffoonery to impeach Trump, well, folks might not go for that…

As Hillary Clinton, Barack Obama, and John Brennan all stated at the outset, this is about Russian <–> Trumpian collusion to rig an US election so Trump would win it.

Remember?

 

Hence, if Mueller goes after Trump for something else instead of his being “Putin’s puppet,” it’s going to look as if his entire investigation was a fishing expedition.

Namely, trying to get potential witnesses to flip on Trump and throw him under the bus. Perjury. Obstruction of justice. Contempt of court. These are crimes related to the investigation itself, not crimes which have anything to do with rigging elections.

So… if the Mueller investigation turns out not to be about Russian collusion – it is called Russiagate, folks – then was about trapping witnesses and getting them to testify about something else, such as money laundering, and hoping Trump will contradict himself so many times during the investigation, he has to be guilty of something?

Again, it is highly probable Donald Trump’s self-fellating shenanigans involve dealings with Russians and gangsters and Mafia and who knows what else.

Trump is corrupt. He gave his daughter and son-in-law high-level jobs and offices in the White House with security clearances, even though they are qualified to sell handbags and grift, and that’s about it.

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That’s corruption, folks. Nepotism. You don’t do that because it endangers all of us. A grifter family in charge of everything… how did that happen?!? Corruption.

The point is Trump himself is just a symptom. Trump has been living the American Dream his whole life. Trophy wives. Buildings with his name on them. Raining money.

That’s the problem. Our society is corrupt, degraded by oligarchs and their politician minions who legalize theft with their legislation on request. Unless we do something to reform the system – and I mean radically reform – then who wins the “Get Trump” game really isn’t going to matter anyway.

The rise of Trump made the dysfunction and debauchery of our government obvious to all. We should be grateful for the opportunity to fix this mendacity and cupidity before it is too late. The president should have never had the power to start war with anyone he wants, much less still have it 20 years later. The NSA should never have been allowed to spy on any and every American, yet here we still are.

Both the president and the intelligence community have been above the law through it all and continue to be so.

Trump’s an opportunist. He didn’t create this opportunity. He isn’t an artist. He’s dull as an unsharpened battleship-grey crayon. He’s a two-bit thug who got famous at the right time for saying things so stupid, no one should say them out loud in public. He found a hole to crawl through at a time when exploiting the system to stuff his family’s pockets full of cash and prizes was ripe, and he did it.

And we let him. And there isn’t much of a damn thing to do about it now.

Forget Trump. We have to fix the system. Have to. Else this will just happen again.

You think Trump is the only corrupt narcissist looking to cash in?

Next time, it might be worse. We might get a crazy person who’s disciplined and organized, with an ideology and an agenda, instead of just a selfish prick on Twitter.

And now, with more on the “I could be wrong” possibility, here’s an article which agrees Trump won’t be indicted; however, it gives several precedents which indicate it is theoretically possible a sitting president can be indicted.

 

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Trump’s indictable; Trump won’t be indicted

With Michael Cohen’s very public incrimination of the president, the word of the week is “indictment.” Whatever your angle on indicting the president, there’s an oped—or article—to argue it. But that’s all that’s available: argumentation. And despite the attempt to make the dueling positions seem well-matched, there’s a clear winner: Trump can be indicted.

There’s no line in the Constitution, case from the Supreme Court, or federal law to say that the president can’t be indicted. Rather, the closest we’ve gotten from the Supreme Court—Clinton v. Jones, in 1997—was a unanimous vote that the president can be sued and subject to a civil trial while in office. The justices found the potential disruption to the presidency wasn’t unconstitutionally burdensome. Nor would it be in the case of a criminal trial.

Like any other unresolved legal issue, it would have to be decided by the courts: Prosecutors would have to seek an indictment, then battle the inevitable challenge to the indictment. And, as former solicitor general Walter Dellinger has pointed out, indicting the president is not the same as putting the president on trial—it just preserves the statute of limitations. When legislators behave ethically, one would also think that an indictment would count as strong evidence of unsuitability, grounds for impeachment.

The only way to force that legal determination is, well, to indict. Though it’s more than justified, per Cohen’s statement confirming Trump directed him to violate campaign finance law, a federal indictment is unlikely. For one thing, DOJ’s got a history of opposing presidential indictments and DOJ gets last say. For another, special counsel Robert Mueller isn’t Kenneth Starr; he couldn’t go rogue even if he wanted to.

DOJ has consistently taken the position that the president can’t be indicted and prosecuted. In 1973, amidst Watergate, the Office of Legal Counsel determined that impeachment is the sole remedy for presidential misdeeds—even if the inability to indict and prosecute the president results in “a complete hiatus in criminal liability.”

While a 1988 OLC memo concluded that the president is not immune from being subpoenaed in a criminal case, it held that the president doesn’t have to testify in court if duties prohibit it. Most recently, in 2000, OLC reaffirmed the 1973 line: A sitting president shouldn’t be indicted. It would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

Take a step away from DOJ, though, and you’ll find two stronger memos proving 40 years’ confidence that the president is indictable.

Other federal thoughts on indictability 

The Office of the Special Prosecutor investigating Nixon concluded in 1974 that Nixon could be, even had to be, indicted at the conclusion of its investigation. One of its strongest points, relevant here, is that a grand jury has a sworn, constitutional duty to “present” all offenses that come to the jurors’ knowledge. If a grand jury considering someone else’s indictment has evidence implicating the president, are they supposed to ignore it? Then there’s that thing about the “paramount importance of reaffirming the integrity of the law.” The authors also note, apropos of DOJ’s argument, that indictment and prosecution are less disruptive to government than impeachment.

Independent Counsel Ken Starr reached the same conclusion in May 1998. He leans on a few key, common sense arguments: No one’s above the law. The Constitution doesn’t grant immunity. A criminal proceeding wouldn’t supplant the impeachment mechanism. Finally, it’s nuts to think impeachment must proceed prosecution; that would put Congress functionally in charge of when an executive power can be exercised, violating the separation of powers.

The best writing on the subject comes not from DOJ or a counsel of any sort but from the judiciary—the U.S. Court of Appeals for the District of Columbia—in a case over what Nixon could be made to turn over to a grand jury. The 1973 opinion, which Nixon did not appeal, shreds the claim that the president isn’t indictable.

Though the President is elected by nationwide ballot, and is often said to represent all the people, he does not embody the nation’s sovereignty. He is not above the law’s commands: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law….” Sovereignty remains at all times with the people, and they do not forfeit through elections the right to have the law construed against and applied to every citizen.

The court decided the case en banc and per curiam. Which means (a) every D.C. Circuit judge was involved and (b) they were in such strong agreement they chose to make the decision from the court rather than naming individuals. The language is at points delightfully sharp. (Forgive the pun.)

Nor does the Impeachment Clause imply immunity from routine court process. While the President argues that the Clause means that impeachability precludes criminal prosecution of an incumbent, we see no need to explore this question except to note its irrelevance to the case before us.

In the time-honored tradition of snarky footnotes, they hid this gem at n. 50:

Because impeachment is available against all “civil Officers of the United States,” not merely against the President, it is difficult to understand how any immunities peculiar to the President can emanate by implication from the fact of impeachability

The D.C. Circuit opinion was, of course, confined to a much narrower topic; it’s an appellate court, not the Supreme Court. But it’s a solid roadmap for any judges confronted with related issues.

DOJ’s the only one with the power to indict

Starr was an independent counsel; he operated outside of the executive branch. That position no longer exists. The 1978 Ethics in Government Act’s independent counsel provisions required reauthorization every five years. Congress let them lapse in 1999. The special counsel, unlike an independent counsel, is still subject to DOJ big-footing. Which means Rod Rosenstein can block Mueller even if Mueller were to advocate for an indictment.

While a state attorney general could try to indict Trump, they’re unlikely to prevail. There’s a Supremacy Clause problem (which Starr acknowledged).

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Check out 1997’s Clinton v. Jones, decided by the Supreme Court:

Because the Supremacy Clause makes federal law “the supreme Law of the Land,” any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here.

The end

Even if DOJ were willing to indict, the question is less whether the president can be indicted than whether it’s a good idea to indict him. The first problem is the specter of constitutional crisis; the second, the threat of having Brett Kavanaugh cast a fifth vote to protect any and all occupants of the office of the president from indictment.

 

2 thoughts on “Flipping People and Throwing Them Under the Bus

  1. Ultimately, the objective of the various investigations into people involved in the Trump campaign, is political. It is to keep Trump and his allies separated from the institutions of power, in particular the DOJ itself, and also the so-called intelligence community. It seems to me that the goal is to make influential people in these areas think twice about supporting Trump, or about engaging in or aiding any kind of equivalent legal or intelligence based revenge on Trump’s opponents (since of course figures on both sides in this battle are have violated all kinds of rules with impunity, as is the habit of the high and mighty). Anyway, Trump’s opponents don’t actually need to indict Trump to achieve their minimal goals – to avoid being displaced from circles of influence over the relevant government departments.

    Since many of the public figures of the anti-Trump movement were also inseparable agents of the essentially criminal actions of the Bush administration, maybe another element is that this is their way of seeking redemption for the colossal fiasco of that time. I.e., the semi-retired torturers and warmongers etc might actually, in their minds, take very seriously their idealized role as defenders of democracy, rather than practicing simple power politics with Machiavellian self-awareness. But that’s wild speculation, and doesn’t matter much.

    The same (desire for redemption = zealous belief in idealized role) is probably true of the anti-Trump press, who after all helped elevate him to the nomination during the Republican primaries, on the basis of him being the only opponent whom Clinton was beating in the polls. And that’s also wild speculation, and also doesn’t matter much.

    Where these 2 groups might differ is that the DOJ and IC crowd expect to get a standard defense-industry-friendly Republican or Republican-lite such as Biden in office next time around, whereas the media expect to get a standard Democrat (again like Biden).

    What would actually happen is a president Pence.

    But not for a while. If even half a strategic brain cell remains, it can see that there is no point in impeaching Trump too early (i.e., before the 2020 election is under way).

    Liked by 1 person

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