Can the Constitution withstand the partisans?.. 2019, because this looks to be the year of the wolves — the year when savage and previously unimaginable things might happen. It will be a year of
- divided government and unprecedented partisan conflict. It will be a year in which
- Donald Trump is isolated and unrestrained as never before. And it will be in this atmosphere that
- indictments will fall, provoking not just a political crisis but a constitutional one.
There are now over a dozen investigations into Trump’s various scandals. If we lived in a healthy society, the ensuing indictments would be handled in a serious way — somber congressional hearings, dispassionate court proceedings. Everybody would step back and be sobered by the fact that our very system of law is at stake.
We know the language he’ll use. It will be the anti-establishment, anti-institutional language that has been coursing through the left and right for the past few decades: The establishment is corrupt, the game is rigged, the elites are out to get you.
At that point congressional leaders will face the defining choice of their careers: Where does their ultimate loyalty lie, to the Constitution or to their party?
If their loyalty is to the Constitution, they will step back and figure out, in a bipartisan way, how to hold the sort of hearings that Congress held during the Watergate scandal — hearings that inspired trust in the system. They will step back and find men and women of integrity — the modern versions of Archibald Cox, Elliot Richardson and Judge John Sirica — who would work to restore decency amid the moral rot.
On the other hand, if they put party above nation, they will see this crisis as just another episode in our long-running political circus. They’ll fall back in partisan lines. They’ll hurl abuse. Their primary concern will be: How can this help me in 2020?
If that happens, then the roughly 40 percent of Americans who support Trump will see serious evidence that he committed felonies, but they won’t care! They’ll conclude that this is not about law or integrity. It’s just a political show trial. They’ll see there is no higher authority that all Americans are accountable to. It’s just power and popularity straight through.
If that happens, we’ll have to face the fact that our Constitution and system of law were not strong enough to withstand the partisan furies that now define our politics. We’ll have to face the fact that America has become another fragile state — a kakistocracy, where laws are passed and broken without consequence, where good people lay low and where wolves are left free to prey on the weak.
As usual, the president makes his predecessors look better.
Suppose you’re the type of smart conservative reluctantly inclined to give Donald Trump a pass for his boorish behavior and ideological heresies because you like the way the economy is going and appreciate the tough tone of his foreign policy, especially when it comes to Islamic fundamentalism.
These last few weeks haven’t exactly validated your faith in the man, have they?
.. The president has abruptly undermined Israel’s security following a phone call with an Islamist strongman in Turkey. So much for the idea, common on the right, that this is the most pro-Israel administration ever.
.. Contrary to the invidious myth that neoconservatives always put Israel first, the reasons for staying in Syria have everything to do with core U.S. interests. Among them: Keeping ISIS beaten, keeping faith with the Kurds, maintaining leverage in Syria and preventing Russia and Iran from consolidating their grip on the Levant.
.. Powers that maintain a reputation as reliable allies and formidable foes tend to enhance their power. Powers that behave as Trump’s America has squander it.
.. But leave that aside and consider the Trump presidency from a purely Israeli standpoint. Are Israelis better off now that the U.S. Embassy is in Jerusalem? Not materially. The move was mostly a matter of symbolism, albeit of an overdue and useful sort. Are Israelis safer from Iran now that the U.S. is no longer in the Iran deal and sanctions are back in force? Only marginally. Sanctions are a tool of strategy, not a strategy unto themselves.
.. What Israel most needs from the U.S. today is what it needed at its birth in 1948: an America committed to defending the liberal-international order against totalitarian enemies, as opposed to one that conducts a purely transactional foreign policy based on the needs of the moment or the whims of a president.
.. From that, everything follows. It means that the U.S. should not
- sell out small nations — whether it was Israel in 1973 or Kuwait in 1990 — for the sake of currying favor with larger ones. It means we should
- resist interloping foreign aggressors, whether it was the
- Soviets in Egypt in the 1960s, or the
- Russians and Iranians in Syria in this decade. It means we should
- oppose militant religious fundamentalism, whether it is
- Wahhabis in Riyadh or Khomeinists in Tehran or Muslim Brothers in Cairo and Ankara. It means we should
- human rights,
- civil liberties, and
- democratic institutions, in that order.
Trump has stood all of this on its head.
He shows no interest in pushing Russia out of Syria. He has neither articulated nor pursued any coherent strategy for pushing Iran out of Syria. He has all but invited Turkey to interfere in Syria. He has done nothing to prevent Iran from continuing to arm Hezbollah. He shows no regard for the Kurds. His fatuous response to Saudi Arabia’s murder of Jamal Khashoggi is that we’re getting a lot of money from the Saudis.
He speaks with no authority on subjects like press freedom or religious liberty because he assails both at home. His still-secret peace plan for Israel and the Palestinians will have the rare effect of uniting Israelis and Palestinians in their rejection of it
.. If you think the gravest immediate threat to Israel is jihadist Hezbollah backed by fundamentalist Iran backed by cynical Russia, the answer is no.
.. If you think the gravest middle-term threat is the continued Islamization of Turkey under Recep Tayyip Erdogan — gradually transforming the country into a technologically competent Sunni version of Iran — the answer is no.
.. If you think that another grave threat to Israel is the inability to preserve at least a vision of a future Palestinian state — one that pursues good governance and peace with its neighbors while rejecting kleptocracy and terrorism — the answer is no.
And if you think that the ultimate long-term threat to Israel is the resurgence of isolationism in the U.S. and a return to the geopolitics of every nation for itself, the answer is more emphatically no.
Both the Christian religion and American psyche need deep cleansing and healing from our many unhealed wounds. Only a contemplative mind can hold our fear, confusion, vulnerability, and anger and guide us toward love.
Contemplative Christians can model a way of building a collaborative, compassionate politics. I suggest we start by reclaiming the wisdom of Trinity, a circle dance of mutuality and communion. Humans—especially the powerful, the wealthy, and supporters of the patriarchal system—are more comfortable with a divine monarch at the top of pyramidal reality. So Christians made Jesus into a distant, imperial God rather than a living member of divine-human relationship.
.. Isaiah tried to teach such servanthood to Israel in the classic four “servant songs.”  But Hebrew history preceded what Christianity repeated: both traditions preferred kings, wars, and empires instead of suffering servanthood or leveling love.
.. We believe our elected officials are called to public service, not public tyranny, so we must protect the limits, checks, and balances of democracy and encourage humility and civility on the part of elected officials. . . .
We reject any moves toward autocratic political leadership and authoritarian rule. . . . Disrespect for the rule of law, not recognizing the equal importance of our three branches of government, and replacing civility with dehumanizing hostility toward opponents are of great concern to us. Neglecting the ethic of public service and accountability, in favor of personal recognition and gain often characterized by offensive arrogance, are not just political issues for us. They raise deeper concerns about political idolatry, accompanied by false and unconstitutional notions of authority. 
.. We already have all the power (dynamis) we need both within us and between us—in fact, Jesus assures us that we are already “clothed” in it “from on high” (see Luke 24:49)!
Mr. Mueller has told the president’s lawyers that he needs to talk to their client to determine whether he had criminal intent to obstruct the investigation into his associates’ possible links to Russia’s election interference. If Mr. Trump refuses to be questioned, Mr. Mueller will have to weigh their arguments while deciding whether to press ahead with a historic grand jury subpoena.
Mr. Mueller had raised the prospect of subpoenaing Mr. Trump to Mr. Dowd in March.
.. The attempt to dissuade Mr. Mueller from seeking a grand jury subpoena is one of two fronts on which Mr. Trump’s lawyers are fighting. In recent weeks, they have also begun a public-relations campaign to discredit the investigation and in part to pre-empt a potentially damaging special counsel report that could prompt impeachment proceedings
.. Mr. Giuliani said in an interview that Mr. Trump is telling the truth but that investigators “have a false version of it, we believe, so you’re trapped.”
.. “Ensuring that the office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance,” they wrote.
.. They argued that the president holds a special position in the government and is busy running the country, making it difficult for him to prepare and sit for an interview. They said that because of those demands on Mr. Trump’s time, the special counsel’s office should have to clear a higher bar to get him to talk. Mr. Mueller, the president’s attorneys argued, needs to prove that the president is the only person who can give him the information he seeks and that he has exhausted all other avenues for getting it.
“The president’s prime function as the chief executive ought not be hampered by requests for interview,” they wrote. “Having him testify demeans the office of the president before the world.”
They also contended that nothing Mr. Trump did violated obstruction-of-justice statutes, making both a technical parsing of what one such law covers and a broad constitutional argument that Congress cannot infringe on how he exercises his power to supervise the executive branch. Because of the authority the Constitution gives him, it is impossible for him to obstruct justice by shutting down a case or firing a subordinate, no matter his motivation, they said.
“Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” they wrote of the part of the Constitution that created the executive branch. “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”
That constitutional claim raises novel issues, according to legal experts. Under the Constitution, the president wields broad authority to control the actions of the executive branch. But the Supreme Court has ruled that Congress can impose some restrictions on his exercise of that power, including by upholding statutes that limit his ability to fire certain officials. As a result, it is not clear whether statutes criminalizing obstruction of justice apply to the president and amount to another legal limit on how he may wield his powers.
Subpoenas of the president are all but unheard-of. President Bill Clinton was ordered to testify before a grand jury in 1998 after requests for a voluntary appearance made by the independent counsel, Kenneth W. Starr, went nowhere.
To avoid the indignity of being marched into the courthouse, Mr. Clinton had his lawyers negotiate a deal in which the president agreed to provide testimony as long as it was taken at the White House and limited to four hours. Mr. Starr then withdrew the subpoena, avoiding a definitive court fight.
In making their arguments, Mr. Trump’s lawyers also revealed new details about the investigation. They took on Mr. Comey’s account of Mr. Trump asking him privately to end the investigation into Mr. Flynn. Investigators are examining that request as possible obstruction.
But Mr. Trump could not have intentionally impeded the F.B.I.’s investigation, the lawyers wrote, because he did not know Mr. Flynn was under investigation when he spoke to Mr. Comey. Mr. Flynn, they said, twice told senior White House officials in the days before he was fired in February 2017 that he was not under F.B.I. scrutiny.
“There could not possibly have been intent to obstruct an ‘investigation’ that had been neither confirmed nor denied to White House counsel,” the president’s lawyers wrote.
Moreover, F.B.I. investigations do not qualify as the sort of “proceeding” an obstruction-of-justice statute covers, they argued.
“Of course, the president of the United States is not above the law, but just as obvious and equally as true is the fact that the president should not be subjected to strained readings and forced applications of clearly irrelevant statutes,” Mr. Dowd and Mr. Sekulow wrote.
Samuel W. Buell, a Duke Law School professor and white-collar criminal law specialist who was a lead prosecutor for the Justice Department’s Enron task force, said the real issue was whether Mr. Trump obstructed a potential grand jury investigation or trial — which do count as proceedings — even if the F.B.I. investigation had not yet developed into one of those. He called it inexplicable why the president’s legal team was making arguments that were focused on the wrong obstruction-of-justice statute.
They went beyond asserting Mr. Trump’s innocence, casting him as the hero of the Flynn episode and contending that he deserved credit for ordering his aides to investigate Mr. Flynn and ultimately firing him.
“Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the president,” they wrote. “His actions speak louder than any words.”
The lawyers acknowledged that Mr. Trump dictated a statement to The Times about the 2016 Trump Tower meeting between some of his top advisers and Russians who were said to have damaging information about Hillary Clinton. Though the statement is misleading — in it, the president’s eldest son, Donald Trump Jr., said he met with Russians “primarily” to discuss adoption issues — the lawyers call it “short but accurate.”
The president’s lawyers argued that the statement is a matter between the president and The Times — and the president’s White House and legal advisers have said for the past year that misleading journalists is not a crime.
Mr. Trump’s lawyers also try to untangle another potential piece of evidence in the obstruction investigation: his assertion, during an interview with Lester Holt of NBC two days after Mr. Comey was fired, that he was thinking while he weighed the dismissal that “this Russia thing” had no validity. Mr. Mueller’s investigators view that statement as damning, according to people familiar with the investigation.
But the lawyers say that news accounts seized on only part of his comments and that his full remarks show that the president was aware that firing Mr. Comey would lengthen the investigation and dismissed him anyway.
The complete interview, the lawyers argued, makes clear “he was willing, even expecting, to let the investigation take more time, though he thinks it is ridiculous, because he believes that the American people deserve to have a competent leader of the F.B.I.”