The End Times
Last Friday, I opened my print copy of the New York Times to be faced by the bold, across the board headline “The End Times”. At first, I thought the Times must have referencing the impending end of American democracy considering the news of the prior days which amounted to a three-pronged attack on our democratic institutions, turning law enforcement into a political weapon, strongly attacking freedom of the press, and continuing a pattern of targeted voter suppression. As it turned out, the headline was part of an advertising pullout for the Amazon original series, Good Omens, but it could easily described the situation our country faces today.
AG Barr has already shown that he believes the FBI “spied” on the Trump campaign in 2016 and has launched the third investigation of the investigators of Russian interference in the 2016 election, assigning it to the US Attorney of Connecticut. There were already two such existing investigations led by the US Attorney in Utah and the DOJ Inspector General. Trump has now given Barr the complete authority to declassify material he uncovers regarding his investigation of the investigators. Considering Barr has already shown himself to be highly partisan in his approach to the Russian investigation by badly misrepresenting the results of the Mueller report, the fear and the expectation is that he will selectively leak material that will appear to be beneficial to Trump and falsely paint the investigators in a bad light, perhaps setting the stage for criminal indictments.
Barr is basically now tasked with finishing the purge of the investigative and intelligence agencies that Trump had already begun, focused on those who investigated the Russian interference in the 2016 election. Comey, Strzok, Page, McCabe, and Baker have already been dealt with by Trump. Barr will assuredly pursue others and look to create criminal charges against those five and others. As Adam Schiff correctly noted, Trump is using Barr to “weaponize law enforcement and classified information against their political enemies”.
Beyond the chilling effect of attacking those who have the temerity to investigate Trump, this dangerously transfers the power to declassify material from the trained professionals within each agency who make such decisions and, rarely until Trump, the President himself to a political appointee of the President who is clearly put in his position to enforce the President’s whims. It also puts a chill on our intelligence gathering operations around the world, especially from sources who will now be fearful they may be exposed through such a declassification, and especially when remembering that the President has already outed one of Israel’s most important sources within ISIS to Russia.
Barr’s DOJ also filed an indictment against Julian Assange with 17 new charges under the Espionage Act. This is the first time a journalist, self-described or working for an actual news organization, has been charged for publishing classified information under the Act, and the Obama administration had previously rejected bringing such charges against Assange because of First Amendment considerations. The charges claim that Assange engaged in a successful attempt to “encourage” and “induce” Chelsea Manning to hack government computers and leak classified material to him which he subsequently published.
Traditionally, the law recognizes that the person who leaks classified material is the criminal and the person the material is leaked to is protected by the First Amendment. This indictment breaks that boundary and threatens the very core of investigative journalism. Journalists are constantly trying to cultivate sources and solicit information from government officials, which sounds remarkably like the “encouragement and inducement” Assange is charged with. Assange may be a particularly odious character who is questionably a journalist, but this indictment is also an attack on freedom of the press itself. As Supreme Court Justice John Harlan even noted in his dissent in the Pentagon Papers case, “Once we start down the road of applying the Espionage Act where newsworthy but harmful information is acquired from government sources, some of the most important journalistic efforts may be put at risk”.
This is just another, more dangerous attack on the press that extends well beyond Trump’s calling the media the “enemy of the people”. Reporters on the southern border have been repeatedly subject to harassment from CBP and Mexican authorities, who are apparently cooperating in identifying the targets for such harassment and creating a watch list of reporters. Last week, Nate Abaurrea, primarily a sports journalist living in San Diego but working in Tiajuana, was detained by five CBP officers for no apparent reason in what seemed clearly a targeted effort as he tried to cross into Mexico to do his job. Abaurrea believes his recent appearance on KPBS and stories about border issues prompted his being detained. It is bad enough that CBP is allowed to make these kind of unreasonable stops within 100 miles of a US border in what one policy analyst describes as a “constitution-free zone” and where over 65% of the entire US population lives. It is worse when they abuse that already unreasonable authority to specifically target journalists who are producing unflattering stories about the current administration’s policies.
Last week the Supreme Court also stayed lower courts’ rulings ruled that both Ohio and Michigan would have to redraw their electoral maps for the 2020 election due to what were ruled unconstitutional partisan gerrymanders. By staying those decisions, Democratic voters in both those states will be forced once again to vote in an election where a federal court has ruled their votes are being improperly suppressed due to gerrymandering. Ohio and Michigan have joined Wisconsin, Maryland, and North Carolina as states where federal courts have ruled the electoral districts are partisanly gerrymandered illegally and, in three of those states, the Supreme Court has allowed the states to delay redrawing their maps. The Court’s decision in the North Carolina and Maryland cases are expected by the end of June. It is also worth noting that four of those five states are now considered swing states and may be the critical battlegrounds for the 2020 election.
So far, the Court has never ruled a gerrymander unconstitutional for its purely partisan result but the fact that lower courts are continuing to rule that they are is not only highlighting the problem but also increasing the pressure on the Court to make a firm decision on the constitutionality of partisan gerrymandering. As one judge in the Michigan case wrote in his opinion, “Judges – and justices – must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering”. In fact, the expectation that the Court would make such a determination in the near future was used as one of the states’ arguments for why it would be a waste of time for the states to redraw their electoral maps now. Meanwhile, as the Court dithers, voters in at least five states will have their constitutional rights violated by partisan gerrymander. If, as expected, the Court rules similarly to Michigan and Ohio in the North Carolina case, certain voters in that state would have voted in an electoral district unconstitutionally gerrymandered racially or partisanly in every election this decade.
The absurdity of our situation would be funny if it were not so dangerous. Trump and Barr are launching an investigation into the origins of the Russia investigation, claiming it was based on opposition research. That is clearly not the case. Trump is now claiming that the FBI investigation of Russian contacts with the Trump campaign amounted to treason and was designed to prevent him from getting elected, despite the fact that the investigation never leaked during the campaign. Trump is being supported in that treason allegation by a member of the Republican Congressional leadership who also happens to be the daughter of the yet-to-be-indicted war criminal Dick Cheney. Liz Cheney also suggests that the FBI’s activities amounted to a coup.
Of course, there was one campaign that was investigated by the FBI based on opposition research and that investigation leaked to the press and became the biggest story of the 2016 election, namely Hillary Clinton’s campaign and her email server. James Comey’s infamous letter re-opening that investigation just days before the election was largely influenced by the fear of leaks from the FBI’s New York office which was determined to stop Clinton from being elected, which sounds remarkably like a coup. Comey’s letter is widely recognized as the pivotal event that swung the election to Trump. And the investigation into those actions and possible leaks to the Trump campaign from inside the NY FBI office has fallen into the void, buried by Trump and his DOJ.
Similarly, Assange is now being charged under the Espionage Act with encouraging and influencing Chelsea Manning to provide him with classified material. Yet, Trump openly encouraged the Russians to find Hillary’s emails, which they dutifully began to try and hack just hours after the request.
With law enforcement and a cowed press fearful of criminal charges for any investigative efforts aimed at the administration, a complaint Republican party, and an electoral system designed to keep it in power regardless of the actual votes cast, Trump may well be ready to move on to the show trial part of his autocratic takeover. According to Corey Lewandowski, who still remains close to the President, “I think what we’re going to see…is in March or April of next year, James Comey, Andy McCabe, Strzok and Page will be on trial for the crimes they committed against the Fourth Amendment and against this president”. Trump’s deputizing Barr to selectively declassify and, one would assume, release material that would support such criminal charges is part of the lead-up to such trials.
Meanwhile, of course, Trump refuses to provide Congress with subpoenaed documents or allow administration officials to testify, abusing the power of executive privilege. At the same time, Barr is refusing to allow Congress or members of the public from seeing the entire Mueller report.
If we are apparently headed for show trials, as it seems we are, then I think we can also be assured, as Michael Cohen, another person who knows Trump intimately, has noted, Trump will not go quietly were he to lose in 2020. End times indeed.