Tag Archives: Obstruction of Justice

The Impaired Impeachment

22 Sunday Dec 2019

Posted by in Impeachment

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biden-impeach-trump

To avoid defections in their ranks, House Democrats had to pare back so much on the counts for impeaching Donald Trump that they laid bare the raw political motives for bringing the action. Not that their motives needed clarification. They’ve been dying to find grounds on which to impeach Trump since the day of his election. They also know the Senate will not remove Trump from office. Now, the real point is to stain the President as he seeks re-election, and that should strike anyone as an illegitimate purpose.

The two impeachment counts, abuse of power and obstruction of Congress, are flimsy. Proof of the first would require infallible mind-reading skills. It’s doubtful that the Democrats are any better at that than their inability to follow the simple facts of the case. During the controversial phone call with Ukrainian President Zelensky, Trump clearly expressed interest in whether the Ukraine would investigate possible interference in the 2016 U.S. presidential election, and whether the Bidens had been involved, given their involvement with Ukrainian organizations that may have had connections to the Steele dossier. That’s a fair question and a legitimate area of inquiry for the chief executive. It can’t be helped that Joe Biden happens to be running for the Democrat presidential nomination in 2020, as if running for office was enough to absolve one of crime.

The second impeachment count against Trump relies on vacating the constitutional privileges accorded to the chief executive, privileges to which President Obama, and others before him, generously availed themselves (also see here).

House Speaker Nancy Pelosi now has opted to delay transmitting the impeachment articles to the Senate. She said it was important for the House to wrap up their proceedings quickly, so much so that her party could not be bothered to bring a court challenge against Trump’s assertion of executive privilege. But now, Pelosi insists that she must be assured the Senate trial will be conducted “fairly”, as if the proceedings in the House were remotely fair to the President.

One of the House Democrats’ own expert witnesses asserts that the President’s impeachment is not official until the articles are transmitted to the Senate. That might be, but he overlooks the Supreme Court’s 1993 ruling in Nixon vs. the United States in which the Court said that no trial is required for the Senate to acquit anyone impeached by the House, and it may do so without judicial review. So, the Senate can acquit the President now, without a trial and without waiting for Speaker Pelosi to transmit the “charges”, should Senate Majority Leader Mitch McConnell decide to bring it to a vote. Of course, he might not want to as a matter of optics as well as pressure from an incensed Trump to air all of the laundry.

Like the misguided impeachment itself, Pelosi’s motive for holding the transmittal in abeyance is political. Democrats, quite possibly unaware of the Senate’s power under Nixon, and facing their comeuppance, might hope the public forgets the charade that took place in the House and blame Republicans for an “unfair” Senate process that would let Trump off the hook. Or, Pelosi might be hoping for a weakening of Republican resolve on establishing rules for a trial in the Senate, but even that calculation is chancy. It’s even possible Pelosi imagines she can delay the transfer through the 2020 election, hoping to use the House impeachment again and again as a cudgel with which to batter Trump’s re-election chances. Fat chance!

Or is the delay a form of damage control? Does it have something to do with Joe Biden’s vulnerability? He is perhaps at greater risk under a Senate impeachment trial of Trump than Trump himself. Biden is the one who gloated publicly of how he cowed the Ukrainians into dropping an investigation of Burisma, the gas company for which his son Hunter was a board member, by threatening to withhold loan guarantees. Quid Pro Joe!

Biden’s has stated that he would not comply with a subpoena to appear before the Senate in the matter of the Trump impeachment, apparently confusing Trump’s status as the executive with privilege with his own status as an out-of-office candidate for the Democrat nomination. Oh, wait! Now Biden says he would appear after all! Is the contrast between Trump’s phone conversation with the Ukrainian President and Biden’s gloating admission pertinent? You bet!

Or perhaps Pelosi believes it’s unwise to hand the impeachment counts over to the Senate with John Durham’s investigation still hanging in the balance. Durham is looking into the efforts of U.S. intelligence agencies to spy on the Trump campaign in 2016. An ill-timed and damaging outcome for the Obama Administration could make the impeachment trial into a catastrophic event for Biden and other Democrats.

The Democrats’ have brought their longstanding lust for impeaching Trump to fruition only to find that they’ve miscalculated. First, Trump is practically guaranteed an acquittal, so the whole effort was and is a waste of time. Second, public opinion is far from rallying to the Dems cause. According to Gallup, Trump’s approval now is higher than Obama’s at the same point in his presidency, and support for impeachment hasn’t responded as the Democrats had hoped. In fact, if anything, support has eroded, especially in swing states, and the effort has strengthened Trump’s base of support. I would argue that it’s much worse for Democrats than the polls show. Many anti-Democrats, like me, actively avoid participating in polls. That’s partly because the framing of questions is often biased, and partly because I don’t want to be bothered. Finally, the Democrats seem not to fathom the political risks they face with impeachment: 28 Democrat representatives from districts Trump won in 2016 may now face stiffer odds against reelection in 2020, having cast their votes for impeachment. More critically, there are severe risks of a Senate trial to the Bidens, potentially other Obama Administration officials, and the Clintons.

Note: An acknowledgement goes to the Legal Insurrection blog and A.F. Branco for the cartoon at the top.

Mueller’s Muddle

05 Wednesday Jun 2019

Posted by in Trump Administration

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The Mueller Report effectively put to rest allegations of collusion between the Trump campaign and Russia to influence the 2016 election, despite lingering wails from crestfallen Trump haters. But Trump lovers and haters alike might agree that the report should have settled much more, including whether there was evidence on which a charge of obstruction of justice could be brought against Trump. Robert Mueller demurred from that responsibility as a prosecutor, but he left a few tempting but ultimately dangerous crumbs for those still obsessed with toppling Trump.

Mueller’s statement last Wednesday wavered around the suggestion that Trump might be guilty of obstruction, a connotation colored more by politics than evidence. My conclusions, gleaned from both the report and a few other sources, are the following:

  • There was no evidence of collusion between the Trump campaign and Russia.
  • The original allegations were an attempted set-up of Trump. The scheme relied in part on the fraudulent Christopher Steele dossier, which was financed by the Clinton campaign, as well as a series of misrepresentations and suspicious contacts arranged by high-level officials at the Department of Justice and the FBI. That the entire investigation might have been compromised by such a conspiracy was not addressed by Mueller in the report, but we will learn more very soon when the DOJ’s Inspector General issues his findings. The IG will be interviewing Steele himself in the UK before long.
  • Mueller probably knew there was no collusion early in the investigation, but he persisted in “investigating” for two years. In my view, that created the appearance of an effort to entrap an angry Trump on obstruction charges.
  • Trump reacted to the collusion charges with a kind of raving petulance. Of course, it’s hard to blame him for his anger, and Mueller more-or-less acknowledged that. Trump did and said things that surely sounded intemperate, though some were within his prerogative (e.g., firing James Comey). Certain impulsive statements and actions might have risen to the level of obstruction had he not “changed his mind”, or had he bothered to follow-up on execution by aides. And Trump made statements (not under oath) that we’re intended to influence public opinion and possibly the willingness of certain witnesses to cooperate with investigators, but that sort of intent is hard to prove.
  • Of the ten instances of possible obstruction listed by Mueller in his report, two came dangerously close to qualifying as obstruction, two others were more of a stretch, and the rest were readily explained by motives other than an intent to obstruct, as Mueller sometimes indicated in the report.
  • Several of the possible obstruction issues were mitigated by Trump’s apparent willingness to cooperate with the investigation, including the provision to Mueller’s office of a huge volume of emails and documents, and by allowing members of the administration to be interviewed, some at great length.
  • Jonathan Turley has expressed his dismay at three underhanded actions taken by Mueller, one in the report itself and two in the wake of its delivery to his superiors at the DOJ (Attorney General William Barr and Deputy AG Rod Rosenstein). The first was an omission: Mueller chose not to identify grand jury material that had to be redacted before release to the public. This was contrary to instructions and with knowledge that the omission would delay the report’s release to the public and reflect badly on Barr.
  • The second action noted by Turley was a letter sent by Mueller to Barr complaining about the “impression” created by Barr’s summary of the report, despite the fact that Barr had invited Mueller to review the summary in advance. The letter also asked Barr to “release uncleared portions of the report”, which Mueller knew was prohibited. This also seems to have been intended to reflect badly on Barr.
  • Turley’s third point is Mueller’s legally incoherent statement that “he would have cleared Trump if he could have” but chose not to draw a conclusion. Mueller invoked an opinion from the DOJ’s Office of Legal Council (OLC), which he claimed prohibited the indictment of a sitting president. But over a period of two years, he failed to seek further guidance on the question from the OLC, his superiors, or the Inspector General.
  • A more obvious explanation for Mueller’s failure to seek an indictment is that he knew that no grand jury would indict on the evidence as described in the ten instances of possible obstruction he listed in the report.
  • Essentially Mueller left the ball in Barr’s court to decide whether to seek an indictment of Trump on obstruction changes, and Barr decided that the evidence did not support it.
  • However, the very idea of obstruction is moot, or should be, given the first three points above. And apparently Mueller never intended to seek an indictment on collusion, as he stated again last Wednesday.
  • Mueller strayed outside the role of a prosecutor and potentially subverted the cause of justice in stating that he could not exonerate the president of obstruction. There is no such thing as “exoneration” of an accused in U.S. criminal law. Mueller’s role as a prosecutor was to make a determination as to whether he should recommend an indictment against Trump. It was not his role to determine Trump’s guilt and certainly not his innocence, and innocence must always be the presumption.
  • The Mueller report could provide Congress with a “roadmap” for impeachment of Trump on charges of obstruction. If House Democrats decide to take that road, it would very likely be a prescription for their electoral suicide.

No matter how aggravating and uncouth you find Trump, and no matter how unwise his policies might prove to be, he was elected fair and square. Nevertheless, his opponents in Congress and on the campaign trail can’t easily give up the impeachment rhetoric without angering their leftist base. But not all congressional Democrats are voicing support for impeachment proceedings, and House Majority Leader Nancy Pelosi is doing her best to manage the division without making a commitment either way. The Senate will never go along with impeachment, of course. Now, a House vote to merely censure Donald Trump is mentioned as a possible “exit-ramp” to compromise that would let the hard-line impeachers down easy. Whatever they do, however, some Democrats might hope to drag out the process in an attempt to inflict maximal damage to Trump’s reelection prospects. And that, too, is probably ill-advised, because people are getting tired of all this.

Hillary’s (C)mail Fail

13 Wednesday Jul 2016

Posted by in National Security, Privilege

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Clinton email

Hillary Clinton’s classified email scandal might look like a minor distraction once facts about the suspicious dealings of the Clinton Foundation are unraveled. I’ll cover the foundation later this week. In this post, I’ll review some considerations relevant to the email case. This is the second in a three-part series of posts on Hillary’s more recent foibles, following the first installment on her role in the Benghazi disaster.

Hillary Clinton’s “grossly negligent” misuse of classified email during her tenure as Secretary of State was harshly criticized by FBI Director James Comey last week. Nevertheless, the Bureau declined to recommend an indictment to the Department of Justice (DOJ) based on their inability to prove mens rea, or any awareness of guilt or an intent to do harm. It is doubtful that Clinton had any intent to harm the country. At a minimum, however, Comey’s statements implied that she did not take security seriously.

The basis of any claim that Clinton lacked awareness of her security responsibilities is shaky, to say the least. Clinton’s private email stunt was a willful effort to avoid legitimate scrutiny, such as FOIA requests. The IT expert who set up her private servers and other devices pled the Fifth Amendment to avoid self-incrimination! There have been reports that Clinton asked aides to remove classified markings (also see here). All we have from the State Department on that allegation is a denial. Clinton repeatedly lied to the public and to Congress (under oath) about classified material and the number of devices she used. She also lied to a federal judge (under oath) about having turned over all work-related emails to the State Department. Many of those emails were deleted, leaving suspicious gaps in the pattern of traffic. Indeed, Clinton’s actions in the case give every appearance of an effort to obstruct justice.

Some of the missing emails will come to light. Wikileaks has released a trove of Clinton’s emails showing additional classified material. There are also pending civil cases related to the emails in which the plaintiffs wish to subpoena Mrs. Clinton. Needless to say, her lawyers are making every effort to stop the subpoenas.

Jacob Sullum at Reason discusses Comey’s decision in the context of mens rea. He notes that Clinton’s offenses were certainly prosecutable under the letter of the law. Despite denials from Clinton apologists, the case of a Navy operations specialist in 1992 is instructive. The defendant in that case claimed that willingness to mishandle classified information was not sufficient for a conviction, but the military court disagreed under the same provision of the law referenced by Comey:

“… the court turned to the subsection at issue in Mrs. Clinton’s case: ‘Section 793(f) has an even lower threshold, punishing loss of classified materials through ‘gross negligence’ and punishing failing to promptly report a loss of classified materials.’”

Nevertheless, Sullum thinks Comey’s defense of mens rea protections for individuals accused of certain violations of law is admirable, and I agree (except Comey’s second clause in the quote below, regarding “in that statute in particular“, is not strictly true). The explosion of federal law, especially regulatory law, makes this more crucial than ever from a libertarian perspective. Here is Comey:

“‘The protection we have as Americans is that the government in general, and in that statute in particular, has to prove before [it] can prosecute any of us that we did this thing that’s forbidden by the law, and when we did it, we knew we were doing something that was unlawful. We don’t have to know the code number, but [the government must show] that we knew we were doing something that was unlawful.’“

For background on the issue of a defendant’s willingness to violate the law, Paul Rosenzweig of the Heritage Foundation has a great article called  “Ignorance of the Law Is No Excuse But It Is In Reality“. By that title, Rosenzweig means that there are so many federal crimes today that ignorance of the law very often should be a valid excuse. However, the contention that Hillary Clinton was ignorant of the law regarding her duties in handling classified information is dubious at best.

Unfortunately, Clinton’s interview with the FBI just days before Comey’s announcement was not conducted by Comey, was not made under oath, and was not recorded. That leaves significant doubt about the seriousness of the FBI’s effort to learn the truth about the record, or any contradictions in the record, that might shed light on Clinton’s awareness or intent to violate the law. And Attorney General Loretta Lynch, after a “personal” meeting with Bill Clinton, recused herself and her office from prosecutorial duties prior to Comey’s announcement, stating that she would accept the FBI’s recommendation without examining the case. That step casts doubt on her seriousness as an independent prosecutor. Hillary skates, for now.

 

IRS Parlance: “Difficult To Retrieve” = “Destroyed”

26 Tuesday Aug 2014

Posted by in Uncategorized

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 IRS Records

DOJ attorneys told Judicial Watch on Friday that the federal government backs up all emails “in case of a government-wide catastrophe.” According to these attorneys, the real reason that the IRS has not provided Lois Lerner’s emails is that retrieval from back-up tapes would be “onerous.” Here is Judicial Watch’s statement on the discovery, which includes this quote from Judicial Watch President Tom Fitton: “You can bet we are going to ask the court for immediate assistance in cutting through this massive obstruction of justice.”

The latest revelations are related to the ongoing Judicial Watch v. IRS lawsuit over IRS abuses being heard by U.S. District Court Judge Emmett Sullivan. In July 10 ruling, Judge Sullivan gave the IRS 30 days to provide details regarding the missing emails. Following the agency’s response, which seemed less than forthcoming, “Judge Sullivan authorized Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10.”

Aside

The IRS Mission As Ideological Enforcer

25 Wednesday Jun 2014

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The use of government to silence critics is an extremely dangerous abuse of power. Was the IRS acting as an instrument of the Obama reelection campaign when it targeted conservative organizations? The blatant cover-up apparently underway at the IRS is worthy of a special prosecutor. The statistical likelihood that the computer hard drives of Lois Lerner and six other high-level IRS staffers, all at the nexus of communications about the suspicious activities, all crashed is just about nil. How high might the scandal go? One of those staffers is Nicole Flax, who was a frequent visitor to the White House as the scandal unfolded. Somehow, Jay Carney and Barack Obama are certain the there wasn’t a “smidgeon of corruption” in the targeting incident. First, Obama insisted that the whole thing was caused by “a couple of ‘Dilberts’ at the Cincinnati IRS office.” Ah, the little people. Of course, we learned that was not true even before Lois Lerner took the Fifth to avoid incrimination.

The latest Congressional hearings on the targeting scandal have featured an intransigent IRS Commissioner seemingly intent on reinforcing the impression of an “arrogant and lawless IRS.” His answers to questions about the hard drive crashes and their ultimate disposal, his earlier promises to provide all of Lois Lerner’s emails, the failure to back-up the information on the hard drives, and the delays in informing Congress about the crashes were unsatisfactory. Today, the House Oversight Committee heard testimony from the National Archivist that the IRS has violated the Federal Records Act. There is undoubtedly more to come.