The Rule Of Lawlessness
With the final realization that the Senate Republicans were actually going to vote to end their sham of an impeachment trial of Donald Trump without calling witnesses, the shocked pundit class looked to John Bolton to finally speak to the media. This was yet another attempt to create another false savior for our democracy, like Mueller, Cohen, Sondland, and others before. But, as the Senate vote so clearly illustrates, only the American people can save what’s left of our democracy by voting Trump and the Republicans out of office in November and hoping that they all leave quietly.
On MSNBC, however, Ari Melber provided a chilling rationale for why Bolton would probably still remain silent. Melber notes that Trump’s Department of Justice has been less than reticent about pursuing former members of his administration who have been critical of the President with criminal investigations. Bolton knows that Trump and Barr will be looking to bring a criminal case against him and that means that anything he says to reporters about his time in the White House will just provide fodder for Trump and Barr to accuse of him some kind of national security violation.
Bolton, whatever one may think of him, is a master of political infighting and he realizes exactly what Trump and Barr are capable of. He has seen the White House try and portray him as some sort of disgruntled employee. He knows that his book is currently being reviewed by the NSC for potentially classified material, a process that could extend for months or years, and that anything that would implicate Trump will be considered either classified or privileged material. That was made abundantly clear by the refusal to release the unredacted version of 24 emails outlining Trump’s thoughts and actions with regard to withholding aid from Ukraine that are being sought under a FOIA request. The DOJ’s reason for this refusal was “presidential privilege”. (It should be noted here that such a privilege does not apply to protecting illegal activity and the GAO has already declared that the holdup of aid violated the Impoundment Control Act.) Bolton will instead rely on leaks from his book and will rely on a House subpoena to “force” his testimony, which Trump will probably legally challenge, in order to tell what he knows about his self-described “drug deal”.
As if right on cue, Trump is now demanding that Barr investigate Bolton for mishandling classified information, as well as asking for investigations on Schiff, Nadler, and even Romney. According to one Republican insider, “It’s payback time”, with another adding, “He has an enemies list that is growing by the day. Trump’s playbook is simple: go after people who crossed him during impeachment”. According to Gabriel Sherman, the White House is planning to selectively leak emails that would make it look as if Bolton were engaged in a pay-to-play scheme as National Security Adviser. John Solomon, the GOP’s ever-reliable propagandist and Ukrainian extortion co-conspirator, has already begun trying to float that narrative, claiming that Bolton was being paid by a Ukrainian oligarch.
With that in mind, Attorney General Barr has made a number of aggressive moves in recent weeks that Bolton was sure to notice. It appears that the DOJ is investigating James Comey once again, this time about whether he provided information in 2017 to reporters about what now seems to be a bogus Russian disinformation campaign aimed at showing that then Attorney General Loretta Lynch would quash the Hillary Clinton email investigation. Comey’s belief in the possible veracity of this report is what made him freeze Lynch out of the email investigation and led to his ill-fated July, 2016 press conference announcing the results of that investigation and, later, the devastating October letter “re-opening” that investigation.
In addition, Andrew McCabe is still being investigated for statements he made about leaks to reporters regarding that same Clinton email saga. It appears that the grand jury looking into that issue refused to hand down an indictment of McCabe last fall, yet the investigation still remains open and the grand jury still remains empaneled. These charges are the ostensible reason that McCabe was fired, apparently illegally, in 2018, just two days before his scheduled retirement. On the other hand, McCabe was cleared of bias, as were Comey and Peter Strzok, in the recent DOJ Inspector General’s report about the origins of the Russia investigation. That report was immediately and summarily rejected by AG Barr, who has launched his own investigation of the origins of the Russia investigation under the leadership of John Durham, the US Attorney for Connecticut. That investigation is scrutinizing the motivations of former CIA Director John Brennan, former Director of National Intelligence James Clapper, former FBI special agent Peter Strzok, and Christopher Steele, the author of the infamous Steele Dossier, in opening up the Russia investigation in the first place.
A few days ago, AG Barr also replaced the US Attorney for the District of Columbia with one his closest advisors, Timothy Shea. Shea replaces Jessie Liu, who is moving over to the Treasury Department. Liu was overseeing the seemingly interminable investigation of McCabe and also led another failed high profile criminal case similar to McCabe’s against the Democratic operative and lawyer Greg Craig, with the jury returning a verdict of acquittal after just five hours of deliberation. Shea worked closely with Barr in handling the fallout from the death of Jeffrey Epstein which disturbingly included claims made to a court by the DOJ that the video of Epstein’s original alleged suicide attempt was lost, then apparently found, but then finally lost due to “technical errors”.
Shea will now be overseeing both the Comey and McCabe investigations. In addition, he will also be in charge as the sentencing of Trump’s National Security Adviser Mike Flynn finally occurs. In a worrying coincidence, Shea’s appointment comes just hours after DOJ lawyers in the DC district oddly changed their sentencing recommendations for Trump’s former National Security Adviser Mike Flynn from 0-6 months, which they had originally filed 22 days earlier, to simply probation.
Flynn, of course, was working for a foreign government while receiving top secret briefings during the transition. He lied to the FBI about his conversations with Russia about sanctions relief. He pled guilty and agreed to cooperate in return for no jail time but ultimately seemed to provide surprisingly little to Mueller. And then, at his sentencing hearing, Flynn denied responsibility for his false statements, claiming that the FBI had tricked him into lying, apparently in the hopes of getting a pardon from Trump. That infuriated the judge in the case who strongly hinted that Flynn would still receive jail time and delayed sentencing, stating that Flynn had arguably sold his country out. Flynn then apparently refused to cooperate in the court case involving his prior business partner. And now, after all that, Barr’s DOJ is recommending merely probation.
Meanwhile, the Biden investigation that Trump was demanding from Ukraine has been taken up in earnest, now using Trump’s co-conspirators in the Senate instead of the Ukrainians. The US Treasury Department has begun turning over records about Hunter Biden, including confidential and often misleading SARs reports, to Senate committees. Treasury has stonewalled subpoenas from the House and has refused to turn over Trump’s tax returns despite being lawfully required to do so. But the department is apparently immediately responding to simple requests, not even subpoenas, from Senate Republicans. As Ron Wyden’s spokesperson accurately describes it, “Applying a blatant double standard, Trump administration agencies like the Treasury Department are rapidly complying with Senate Republican requests—no subpoenas necessary—and producing ‘evidence’ of questionable origin”.
As Jonathan Chait notes, “Trump is not arbitrarily having his opponents arrested. He is doing something more subtle, but still extremely dangerous: using the Department of Justice to selectively hold his opponents to the most exacting levels of legal scrutiny that are not broadly applied. It doesn’t even matter that not every investigation brings charges, and the charges themselves probably won’t hold up in court. The time, expense, and reputational cost of the investigations will be damaging enough”.
Besides targeting the President’s personal political enemies, Barr’s DOJ and the White House Counsel’s Office are also actively engaged in covering up crimes committed by the President. When the White House Counsel’s Office was informed about the Ukrainian extortion by multiple NSC officials, both John Eisenberg and Pat Cipollone ignored their ethical and legal duties and instead protected Trump. As Kathleen Clark writes, “When Eisenberg and Cipollone learned of President’s Trump’s criminal scheme, they were put into an uncomfortable position. But their ethical and legal duties were clear. They had an ethical duty to protect their client, the Office of the Presidency, and a statutory duty to report the crime to the attorney general. Instead, these White House lawyers attempted to shield Trump from accountability for his conduct. Eisenberg hid the call ‘transcript’ on a classified server and has refused to comply with a Congressional subpoena, and Cipollone tried to hide the information from Congress”. Cipollone may have further breached his ethical requirements by representing Trump in the impeachment trial in which there is substantial credible evidence that Cipollone himself is a witness.
Similarly, Barr’s DOJ ignored its legal responsibilities when the CIA’s General Counsel made a criminal referral based on the allegations of the whistleblower that were deemed credible. Instead of launching an investigation, the DOJ simply ignored the referral. A similar referral based on the whistleblower’s subsequent complaint also went to the Director of National Intelligence (DNI). Rather than notifying Congress within the statutorily ascribed seven days, The DNI relied on an Office of Legal Counsel (OLC) opinion sought by Cipollone that declared Trump’s extortion phone call to Zelensky as merely “a confidential diplomatic conversation between the President and a foreign leader” rather than an “intelligence activity”. That ruling allowed the DNI to ignore his legal requirement to notify Congress.
The OLC did, however, provide the DOJ with the whistleblower’s complaint. And again the DOJ failed to launch a credible investigation, failing to interview witnesses or seek documents that might shed some light on the whistleblower’s accusations and willfully ignoring the most serious legal implications of the extortion plot. Instead, the DOJ focused narrowly on whether the request for dirt on Biden was a campaign finance violation before deciding that it was not, based on the laughable theory that such information “didn’t amount to a ‘thing of value’ that could be quantified”. According to reports about what Bolton’s book contains, Barr himself is yet another fact witness to the President’s extortion attempt but has yet to recuse himself from overseeing investigations related to it. Finally, Barr himself has just ensured that the DOJ will initiate no new investigations of Trump by ordering that any investigations of the 2020 candidates be signed off on by him personally. In addition, according to Katie Benner at the NY Times, Barr “issued guidance that Senate, House & campaign finance inquiries would require DoJ leadership approval too”.
Beyond Trump’s direct political enemies, others are also feeling the power of this administration’s lawlessness. The policy of quickly sending asylum seekers back to Mexico or Guatemala or simply deporting them back to their home country has created what one immigrant’s rights group calls “legal black holes”. In a recent court filing, the rights group “challenges the federal government’s drastic change in policy to—for the first time—detain asylum seekers effectively incommunicado and in appalling conditions in those facilities throughout their asylum screening process, without any opportunity to meet in person, or even by telephone, with an attorney to obtain the assistance to which they are entitled by law”. There are reports that hundreds of those asylum seekers sent to Mexico have been the victims of “kidnapping, torture, rape, and other violent attack”.
In the wake of the ill-advised and illegal assassination of Iranian General Qassem Soleimani and an important member of the Iraqi military, CBP agents began what they described as “operating with an enhanced posture”, especially regarding people of Iranian birth or descent. That “enhanced posture” has resulted in Iranian American citizens being illegally barred from entry as well as having their passports seized so that they could not return to the country they were coming from. Others have been illegally detained solely based on their national origin and had their cell phones illegally searched at US borders. One of those detained was an active duty US soldier who was simply transferring through an airport in the US as part of his deployment.
Initially, CBP denied there was any policy in place to target Iranian Americans but a leaked memo from Seattle’s CBP office shows that denial was an outright lie and that a specific directive had been given to vet those with Iranian or Lebanese national origin. CBP has an extraordinary history of illegal activity and extraordinary record of lying, even in court.
Here again, the Trump administration has begun an attempt to cover up abuses by its immigration agencies. It recently designated the CBP as a “security agency” which will allow it to restrict the documents and records that would be available from a FOIA request. It will also allow the identities of the entire CBP force to remain secret, not just the frontline employees, making it far more difficult to pinpoint who is giving the force directives. As on ACLU attorney noted, “I think it is just troubling when an agency that holds increasingly more power over people’s lives seeks more secrecy”.
The National Archives has just announced the CBP’s companion agency, ICE, can begin destroying records that detailed the sexual abuse and deaths of immigrants held in its custody. These are not decades old records but include documents from 2017, covering the period of Trump’s illegal Muslim ban and policy of family separation on the southern border. In addition, “The Department of the Interior and the National Archives have decided to delete files on endangered species, offshore drilling inspections and the safety of drinking water. The department even claimed that papers from a case where it mismanaged Native American land and assets — resulting in a multibillion-dollar legal settlement — would be of no interest to future historians (or anyone else)”. The decision to allow the destruction of these documents was made by the National Archives, apparently without any input or protest from Congress. The National Archives was recently caught doctoring photographs that showed signs critical of Trump, an erasure reminiscent of the men who suddenly disappeared from photographs in Stalinist Russia when they fell out of favor with the Dear Leader.
Of course, the apotheosis of Trump’s crimes and cover-ups is his impeachment trial. And, once again, Trump’s lawyers epitomized the lawlessness of this administration. On top of the avalanche of lies and misrepresentations, the President’s lawyers basically argued that if it is in Trump’s best interest, then it is in the national interest, and it is therefore not illegal. As David Rothkopf wrote, “Nixon said that if the president does it, it is not a crime. Trump is going a step further and saying that if the president does it, it is in the national interest. This gives him not only license to do anything but justification to direct the gov’t to serve him above all”. And, regardless of what those 52 Senators, who represent 18 million fewer Americans than the 48 that voted to convict, said in their speeches explaining their vote, they effectively signed off on the President’s lawyers’ legal theories about unlimited executive power.
People seem to finally be waking up to Trump’s authoritarian tactics. Historian Jon Meacham has aptly described the Republican party as a “monarchist party. Trump is their king, and their king right or wrong”. And certainly, the President’s rants at the National Prayer Breakfast and his impeachment not-guilty rally of revenge, as well as the cult of personality response from the Republican party, have heightened that concern. But I don’t think anyone has fully come to grips with just how deep the collapse in the rule of law has become under Trump’s influence. Minorities in this country have long lived within some of the long-standing “black holes” in our legal system. But Trump and his minions have riddled our criminal justice system with numerous new “legal black holes” in which the President can act with total impunity. As Sarah Kendzior wrote so presciently last fall, “Crime committed brazenly is over time redefined as something other than crime. It is entertainment, and then it is autocracy, and then it is too late”. We are getting awfully close to “too late”. November will be the last chance and even that is uncertain with a criminal administration feeling uniquely unconstrained.