What the Mueller Reports Says...and Not

For anyone wanting a clear ending and definitive Hollywood ending and answer in the Mueller
investigation of Russian interference in the 2016 US elections and the role Trump and his campaign had in colluding with them, they will be disappointed.   The final report, based on the US Attorney General’s four-page summary, offers something for everyone, assuring that for now that the issues raised in it will live on into the 2020 US presidential election.
When Robert Mueller was brought on as special investigator, he was given a narrow mandate to determine whether Russians sought to interfere with the 2016 US elections.  On that matter Mueller was definitive–yes.  That conclusion alone is significant because it will have a potentially major impact on US-Russian Federation relations, including putting pressure on Trump to take a harder line toward Russia and Putin.  With members of Congress–both Democrats and Republicans–wary of Trump’s soft approach toward Russia, this part of the report may well unite them in legislation that will go against the president.
If one were to end the report about Russian interference that would cover the core of the Mueller investigation and what it was mandated to investigate.  But the report also looked at whether Trump or his campaign colluded or aided and abetted this interference. Again Mueller reaches a definite answer–no.  It is possible that Trump and his associates did several things to help themselves financially, but as a matter of law they not commit acts that broke the law.
The third issue is whether Trump obstructed justice and the Muller investigation.  Here the report finds evidence on both sides, declaring that the investigation neither proves nor exonerates him.  The reason, presumably, hinges on the nuances of American law which requires proof both that someone engaged in certain acts and they did so with the appropriate mental state of mind or intent.  Here, one can speculate that Mueller found that Trump had done certain acts but could not determine whether his act rose to the level to prove intent of obstruction. Mueller threw this to the Justice Department and regular prosecutors to make that call and they said no. 
This is the point where the politics will kick in.  Democrats will demand the full report and want to talk to Mueller and Justice Department officers to determine if they made the right call.  This  review of conclusions, while entirely legitimate, is wrapped into the middle of partisan politics and a 2020 election that has already reached conclusions on Trump’s behavior, regardless of what the report said.  Mueller, in leaving open the obstruction question, and in the Attorney General not releasing the final report yet, guarantee that the investigation and final conclusions will not go away in terms of issues. 
But whether the Democrats should continue to dwell on it versus move on to other matters is also a good question.  The Democratic Party base will not let this matter go and they were counting on a clear answer of Trump guilt or culpability to help them in 2020.  They did not get that.   Democrats now need to move on to substantive issues to unite them and not simply run against Trump.  Conversely, for Republicans and Trump, the report also guarantees the problems will persist.  It only addressed a narrow set of issues, leaving open other questions about Trump’s business dealings and other matters which are still the objects on other congressional and criminal prosecutions.
Overall, the Mueller report itself, while definitive in what it was supposed to investigate, will hardly be politically definitive and it leaves open many issues unresolved.

Reflections on the Future Survival of the Donald Trump Presidency

The Trump presidency has always been a rocky and contentious one, but recent and coming events will try its soul in ways that have not previously been seen.  While repeatedly some speculate that Trump will not make it to the end of his term in 2021, realistically it would take a lot to change for him to be impeached, convicted of a crime, or resign.  What forces and events will impact his presidency in the coming months?

Trump Himself

The Death of President George Herbert Walker Bush points to a significant contrast in personalities and the weakness of Donald Trump as a person.  Bush’s death provides not just a retrospective on the 41st president’s legacy, but it speaks also to the deficiencies of the Trump presidency. 

Bush’s presidency illustrates many legacies–some good  and bad–but psychological temperament and style stand out.  Bush’s career in business and government–especially the latter as CIA director, UN ambassador, member of Congress, and vice-president before becoming president–point to someone with the skills, knowledge, and experience to lead the country.  Bush’s resume was one of understanding how Washington worked. It was also a resume that demonstrated a commitment to diplomacy, knowledge-based decision making, and  a respect for the processes of government.

Bush appointed knowledgeable and competent people to serve him, he approached the world, as in the case of the first Gulf War, with a sense of multilateralism and diplomacy that starkly contrast to what Trump displays.  Additionally, Bush, unlike Trump, was willing to accept responsibility for his actions and he made choices–such as correctly breaking his no new taxes pledge–that demonstrated real leadership and a willingness to compromise.

Whether many realize it or not, the passing of Bush will only highlight so much more the deficiencies of Trump and his presidency. 

Michael Cohen and the Looming Special Prosecutor Report

Perhaps the most significant event affecting the Trump presidency took place last week when Trump’s former attorney Michael Cohen pled guilty to lying to Congress.  It was not so much the lying that was the issue, but it was what the lie was about–efforts well into June 2016 to pursue a business deal with Russia.  Why is this significant?

Central to the special prosecutor’s investigation on Russian interference with the 2016 US elections and the role that the Trump campaign had in colluding with them has been ascertaining of motive.  By that, the issue has been to try to explain why Trump and his associates may have wanted to collude with them, or why they seemed even now unwilling to take a hardline with Putin or otherwise condemn the investigation.  The simple answer is that Trump had possible economic ties then and perhaps now with Russia that he did not want to reveal and which may have then and now continue to cloud his judgments as president.

Keep in mind that Trump this week did confirm much of the details of Cohen’s confession about a Russian Trump tower deal.  This fact no longer seems in dispute.  The deal now speaks to how the Trump business empire, his campaign, and now presidency are intertwined, and how there may have been interest or motive to collude with Russians to get a better economic deal for Trump.  There is a possible quid pro quo emerging.  The Russians did not want Clinton elected, Trump wanted a business deal and perhaps a presidency, the art of the deal suggests strike a deal so that everyone gets what they want.  This quid pro quo is perhaps the core of everything which has thus far unfolded, and it goes far beyond accusations that Secretary of State Clinton extended special deals to countries and those who were donors to the Clinton Foundation.

Democratic Control of the House

Democrats taking control of the US House is significant on multiple fronts.  They will pose a policy limit on Trump, they will also be able to do many investigations and perform the oversight of the executive branch and agencies that the Republican House never was willing to do.  But House control by Democrats also closely connects to the special prosecutor’s actions.

One must also read between the lines in the Cohen plea.  It is no surprise that special prosecutor Robert Mueller knows more than the media is reporting.  One can surmise that once the Democrats take control of the House in January Mueller will be able to release a report to them, even if he is fired.  There is little chance that Mueller will indict Trump even if the evidence supports it. Instead, he will follow the March 1, 1974 Justice Department Memorandum which then referred allegations of Nixon’s criminality to the House.  The same will possibly happen here.

One can probably expect the special prosecutor to indict more individuals, especially given Cohen’s plea.  One might also see Trump pardoning many individuals such as Paul Manafort who remain  loyal to him.  But even if all this occurs, the one-two punch of a special prosecutor’s report and Democratic House control will constrain the Trump presidency even more than it has already.

Mounting Personal Lawsuits

Trump faces numerous civil lawsuits in state and federal court that will continue to dog him, and they cannot be halted by presidential pardons or judicial appointments.  These suits involve sexual harassment issues, the Trump Foundation, his business dealings and how they tie into whether he violated the Constitution’s Emolument clause, among others.  President’s cannot issue self-pardons, especially in civil matters, and his authority does not extend to state courts where he cannot control appointments to the federal bench or the Supreme Court.

 
2020 Economic Slowdown

Perhaps the biggest wild card is the economy.  The US is in the middle of one of the longest recoveries and bull markets in history.  But there are many signs that the end is coming.
Internationally, there is a slowing down of world economic growth that will affect US exports.  Also, as a globally interconnected economy, the US will be impacted by what happens elsewhere.  Rising interest rates are impacting an already slowing down housing market that seemed until recently to be overheated. 

The Trump tax cuts, according to analysts, either had little impact on economic growth–especially when most of the tax cuts were taken as profits and not reinvestments–or they have run their course.  The trade wars are beginning to impact many US sectors, including agriculture and the auto industry (as seen by GM’s plans to close facilities), and  the tightening of immigration is leading to labor shortages.

Finally, the Trump administration has failed to address longer term structural problems with the US economy such as the significant racial and economic gaps tht limit opportunities for many, unequal economic development, decaying infrastructure, and an inability to deal with global economic issues such as the increasing competitiveness of China and other major economies. Throw into this also a  growing budget deficit that will force the US to borrow more money at higher interest rates. All told, the recent Wall Street stock jitters highlight what many see as a first or second 2020 economic slowdown that  will impact the presidential race.

But Will the Republicans Abandon Trump?

All of the above forces will serve as manor checks on the remaining Trump presidency.  But does that mean that Republicans in the Senate or his base will abandon him?  As of now there is little sign of that.   It would take a significant combination of the above events for that to happen and for there to be a serious chance of Republicans calling for impeachment, or for there to be support for challenges to Trump were he to run for a second term.  Trump remains more popular among his base than do the rest of the Republicans and until such time as his base leaves him one cannot foresee  this scenario.

Cohen, Manafort, and Trump? What do we know and what happens next?

So where are we as a result of the Paul Manafort conviction and Michael Cohen plea? Here are some possible answers.

How bad for Trump was the Michael Cohen plea and the Paul Manafort conviction?

Legally Paul Manafort really had nothing to do with Trump in terms of his campaign and allegations of Russian interference with US elections and allegations that Trump, his campaign, or staff aided and abetted or obstructed the investigation.  This was a trial involving Manafort’s private business dealings. 

It needs to be made absolutely clear that this trial was not about any alleged Russian connections between Trump, his campaign, or associates.  The trial neither refutes nor confirms any of this and has nothing to do with those contentions.  However, the Manafort conviction is a victory for the special prosecutor who uncovered this illegal activity during his investigation.  It supports the idea that the special prosecutor has reason to believe that a criminal investigation is warranted.  It is possible, but we do not know, that Manafort might appeal or even agree to plea to the remaining charges, or negotiate to cooperate with a sentence reduction in return for cooperation with the special prosecutor.  As Trump’s former campaign manager his may have important and relevant information.  We do not know.

Is all this a witch hunt?

Manafort is about issues unrelated to the Russian probe.  Does this not prove a witch hunt?  No.  First prosecutors all the time begin investigations into one matter and turn up illegal behavior unrelated to the initial investigation.  They do not and are supposed to turn a blind eye to these new allegations of illegal behavior and instead often prosecute, as is the case here.

Second, think of a parallel.  Kenneth Starr was the special prosecutor originally appointed to investigate alleged illegal behavior involving President Clinton when he was still governor of Arkansas.  This was the investigation into land dealings called Whitewater.  His investigation revealed no improper behavior there but did find in the course of his investigation that Clinton lied under oath about sexual relations with Monica Lewinsky.  This became the basis of the impeachment against him.  Thus, the Manafort investigation/conviction is a similar outgrowth of Muller’s investigation in the way the Starr perjury claims were regarding Whitewater.

How serious is Cohen?

Cohen is a different legal matter.  Again this has nothing to do with the Russian investigation, per se.  However on a scale of 1-10 where 10 is Trump is impeached or convicted of a crime, and a 9 is Trump is indicted, this was an 8.  Cohen’s plea directly implicates the president in election-related charges which constitute a felony.  His plea also adds saliency and support to civil law suits brought by Stormy Daniels and Karen McDougal. But more importantly, Cohen as part of an agreement to reduce his sentence may provide other critical information that connects Trump to other possibly illegal activities.  We do not know what Cohen knows but it appears to be a lot.  The Judge who reviewed the attorney-client confidential information of Cohen’s involving the president is allowing a lot of it to be used, suggesting potentially a significant amount of incriminating information.


The Political Damage?

Collectively, the Cohen-Manafort plea and conviction takes enormous wind out of the claim by Trump that all this is a big witch hunt.  We now have proven assertions or illegal activity involving Trump and his associates, lending credence to claims that Trump or his associates had broken the law.  Politically, Tuesday was a major turning point in the sense that it makes it harder to say there is no merit to any illegal actions surrounding Trump or his associates.  Again, none of this touches the core issue of the Russian investigation; this is all periphery to it.

It is unlikely any of this changes the mind of core Trump supporters.  Its bigger impact is on swing voters, and also in terms of legitimizing the special prosecutor’s probe.

What can Trump do to shut down the legal problems?

Yes Trump can still fire Mueller but this close to an election I doubt even he risks that.  It would explode in his face.  The Muller investigation is probably within a month or so of concluding its fact-finding stage.  At that point a report will be released detailing what he knows and what steps will follow.   What it concludes about Trump no one knows and whether more indictments follow is a good question.

Can Trump be indicted?  Good question.  Watergate-era Justice Department memos suggest no but  a lot of law has changed since then to question that.  If he is indicted there is a major legal battle that goes to the Supreme Court.  I suspect Mueller, even if he concludes there is probable cause of presidential illegal behavior (direct primary liability or aiding and abetting), will opt not to indict and list the president as in Watergate as an unindicted co-conspirator.  This is a nightmare for Trump.  He cannot really clear his name here with a legal proceeding and if the Democrats take control of the House, this is the basis for impeachment.  Instead, I see Mueller potentially indicting many Trump associates, but I do not know since his report has not yet been finalized and released.

Trump can pardon Cohen, Manafort, and anyone else charged or convicted of federal crimes.  Trump cannot easily fire the US prosecutors in New York–they are careerists with a lot of legal protections on their side.

Trump cannot shut down the Daniels and McDougal law suits.  They are civil matters under state law and presidential pardons do not reach into state suits.  Plus, Clinton v. Jones established the legal ruling that sitting presidents can face civil law suits while in office.

Trump v. the Law: How Four Types of Lawsuits will do the Job Congress Should be Doing

“It’s good to be the king” as Mel Brooks once exclaimed, for kings are above the law.  But US

presidents are not kings because they are subject to the law.  Donald Trump is increasingly confronting this reality, with the fate of his presidency resting in four types of law suits that are gradually  grinding he and his administration to a halt.  The latest is a Maryland judge allowing for a suit against Trump alleging that foreign governments doing business with him violates the Constitution’s Emoluments  Clause.
Presidents are not kings, and they are not like Captain Picard from Star Trek declaring “Make it so” and it will happen.  The US Constitution and America’s laws–both civic and criminal–limit presidential power.  Presidents have no inherent power to do whatever they want–all of their authority must come from the Constitution or delegation from Congress.  Trump has never understood this.  He thinks he is the CEO of the federal government, beyond reproach and accountable to no one. 
Yet the defining trait of his first 15 months in office has been his and his administration’s woeful ineptness, driven in part but collective inability to act in accordance with the law, whether it be regulating conflict of interest, immigration, or criminal matters.  The Republican Congress has proven unwilling and able to check Trump, botching the Russian investigation and failing to use its checks to hold him accountable out of fear that they will alienate their base.  Yet there are four different legal nooses tightening around Trump’s neck, dictating the fate of the 2018 elections and the future of the Trump presidency.
The first and most famous is special prosecutor Bob Mueller’s investigation into Russian involvement in the 2016 election and what, if any collusive activity did Trump and his campaign have.  The investigation includes not just the question of whether there was collusion but also has the Trump administration obstructed justice, hindered prosecution, committed perjury, or engaged in any other activities to impede the Mueller investigation.  Already the special prosecutor  has netted several indictments and guilty pleas, and at any time many expect Jared Kushner, Donald Trump, Jr., Ivanka Trump, and maybe the president himself to be indicted for something.  The Justice Department along with much of the Trump Administration is self-destructing under the weight of this investigation and with future trials and indictments certain, this issue is not going away before the 2018 elections.
Second, one already saw multiple lawsuits in 2017 challenging Trump executive orders when it came to immigration and sanctuary cities.  With this administration ready to roll out a ton of new  administration regulations, look to see a range of environment and public interest groups as well as states challenge them in court.  Trump may eventually win, but look to see more injunctions, stays, and delays to these rules and orders.
Third, already there are three lawsuits surrounding sexual harassment and women claiming they were paid hush money about affairs.  Gloria Allred–perhaps the best sexual harassment lawyer in the nation–is already representing one alleged victim.  Expect more lawsuits this year.  Thanks to Bill Clinton and the Supreme Court decision that allowed Paula Jones to sue him as president, these cases will multiple and proceed against Trump.  One will see subpoenas and depositions that Trump cannot suppress, forcing Trump in some cases to give testimony under oath and penalty of perjury.
Finally there is the Emolument clause.  The Framers put it in the Constitution out of fear that foreign governments would try to give gifts or other valuables to our federal offices in order to influence them.  The suit that a federal judge just allowed to proceed alleges that the business that foreign governments with the Trump business empire constitute emoluments.  Whether an appeals  court will allow the suit to continue and if it does whether a court agrees that there is a constitutional violation are good questions.  If it proceeds, it may force Trump to release his tax records and open up his private business to legal and public scrutiny.
Taken together, these four sets of legal challenges are doing the work that Congress should be doing but cannot or will not.  With the exception of the Mueller criminal investigation, the other three cannot be derailed by presidential pardoning power, claims of executive privilege, or firing someone.  Should they succeed–even if politically to flip one or two houses of Congress–they will  determine the fate of the Trump presidency. A flipped House or Senate means impeachment or other hearings, or a halt to judicial nominations.  It will also enhance gridlock even beyond what it is now, and it may lead the Congressional Republicans abandoning him where to all surprise–they might actually find it in their interest to do their job and go after him.