I can smell Donald Trump’s fear from here. His panic. His anxiety.
.. The only people who know what has been discovered in the Russian election meddling probe are Special Counsel Robert Mueller and his team, and they aren’t talking.
But President Trump no doubt knows far more about it than the rest of us, and what he knows — or what he fears — appears to be a consuming preoccupation. He tweets about the investigation constantly.
.. “They have come to believe that, if the Democrats win control of the House in November, the chamber will vote on whether to begin the impeachment process no matter the outcome of Mr. Mueller’s investigation. So they want to sway Americans — and by extension, lawmakers.”
.. The Times quoted Rudy Giuliani, one of the president’s lawyers, as saying, “Nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation, and that’s why public opinion is so important.”
.. Politico reported on this strategy in May, writing: “President Donald Trump and his lawyers have made a strategic calculation that their fight against Special Counsel Robert Mueller is more political than it is legal. They’re banking that the lead Russia investigator will follow longstanding Justice Department practice that a sitting president can’t be indicted, and that the only real threat to Trump’s survival is impeachment.”
.. “So long as that theory holds, Trump’s plan is to forcefully challenge Mueller in the arena he knows best — not the courtroom but the media, with a public campaign aimed at the special counsel’s credibility, especially among Republican voters and G.O.P. members of Congress.”
.. In May, CNN’s Dana Bash interviewed Giuliani, and she posited that the “Spygate” saga was “an intentional strategy to undermine the investigation, knowing that they, the investigators, the special counsel, it’s their policy not to talk. But you are very free to and are very aggressive about doing so.”
Giuliani responded in part:
“Of course, we have to do it in defending the president. We are defending — to a large extent, remember, Dana, we are defending here, it is for public opinion, because eventually the decision here is going to be impeach, not impeach. Members of Congress, Democrat and Republican, are going to be informed a lot by their constituents. So, our jury is the American — as it should be — is the American people.”
.. One has to ask: Why exactly is impeachment front of mind for these people? If they were as innocent as they publicly proclaim, they would know that impeachment would be out of the question as a matter of fact and law. But that is apparently not the case.
.. I believe that Trump is conducting himself as only a guilty man would, one who has a very real and well-founded fear that he is in imminent jeopardy.
.. In May, Trump added Emmet T. Flood, a lawyer who represented Bill Clinton during his impeachment, to his legal team.
.. Impeachment is always on Trump’s mind, and so he relentlessly pursues his strategy of creating a climate of incredulity to ward it off.
.. Republicans, who now give Mueller a 17 percent approval rating, down from 29 percent in March.
.. Trump contends that there’s no there there. If not, why is he acting like there is?
Donald Trump, Bill Clinton, and How Presidents View Impeachment
a memo that his lawyers had prepared last year, for the special counsel, published by the Times over the weekend, which says that, because the President can legitimately stop investigations—by methods including his pardon power or by the firing or hiring of certain law-enforcement officials, which can be part of the President’s job—his actions “could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself.” As the President’s lawyers see it, Trump, in effect, is justice.
.. what the President and his lawyers seem to be saying is that there will, or can, be no “high crimes or misdemeanors”—the standard for impeachment—for Mueller to report to Congress, because Trump can make them vanish.
.. What is especially jarring about this argument is that it posits that the President does not have to pardon himself for any potential crime to disappear; the idea that he could, maybe, someday pardon himself makes a crime un-criminal. The concept is meta-Machiavellian: it is not just that a theoretical end—a Presidential pardon or a firing of the special counsel—justifies the means; it erases the means. That which may never happen (a pardon) is treated as something that already has.
.. the part about pardons in the Constitution reads like this: the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (Emphasis added.)
The President may not be willing to read the parts of sentences that he doesn’t like, but one wishes that his lawyers would. The pardon power is not absolute
.. Whether a President can pardon himself or herself for anythingis not clear, in part because no President has ever tried
.. And should an investigator just assume that anything that harms the President won’t be prosecuted, and thus needn’t be investigated?
.. Does once having been Trump’s campaign chairman mean, for example, that Paul Manafort can, as Mueller’s team alleged on Monday, engage in witness tampering?
.. That is the logic of societies that have given up on the rule of law—leaving investigators and judges and juries always guessing about whether they are obliged to ignore plain facts in order to maintain the illusion of Presidential innocence.
.. there is no question that a President can, in the course of doing things that he is allowed to do—such as hiring and firing people—commit crimes, for example by taking bribes.
.. In Trump’s view, in other words, Sessions’s very conflict—his involvement in the campaign, which is presumably what Trump was referring to when he said that he “knew better than most”—was a reason for him to stay involved.
.. The reason that there is a Russia investigation, in other words, is a failure of the President’s subordinates to use the power that his office gave them. This, for Trump, seems to be the definition of a “hoax”: people pretending that Trump is not as powerful as Trump is.
.. When NBC’s Craig Melvin asked President Bill Clinton, this week for the “Today” show, whether it would have been better for him to resign, rather than fight it out, when he was impeached on charges that he had perjured himself and obstructed justice in relation to the Monica Lewinsky and Paula Jones cases, in 1998, Clinton said no and argued, “I defended the Constitution!”
.. He referred vaguely to “imagined facts” and to unspecified real ones that had been “conveniently omitted.”
.. It might seem surprising that Clinton was not better prepared for such questions ahead of his book tour. But then his wife’s Presidential campaign did not seem well prepared for such questions, either
.. “The American people, two-thirds of them, stayed with me,” he said—as if polls provided the ultimate pardon.
Neal Katyal: Can’t Indict a President? That Could Hurt Trump
For that reason, the “can’t indict a sitting president” view is necessarily dependent on Congress having all of the information necessary to conduct thorough impeachment proceedings.
.. To say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so that it may decide whether the president should remain in office. It means, in short, that should Mr. Mueller conclude he cannot indict a sitting president, he would also have to turn over all of the information he has uncovered to Congress.
.. If Mr. Giuliani is correct that Mr. Trump cannot be indicted, then the other idea being floated by Mr. Trump’s lawyers — that such testimony would amount to a “perjury trap” — makes little sense.
.. The president of the United States would be refusing to do what every other federal employee must do — provide evidence in a law enforcement proceeding — even when he faces no imminent criminal consequences.
.. But there is a deeper problem still. Mr. Giuliani appears to be making an argument not just about timing — that a sitting president cannot be indicted while in office — but also about the president’s being immune from the criminal process altogether. That is the basis for his claim that the president can refuse a subpoena, which harks back to the notorious statement of Richard Nixon that “when the president does it, that means that it is not illegal.”
.. Mr. Trump, whose Justice Department has, with his blessing, repeatedly overruled longstanding Justice Department positions at an unheard-of rate, is in no position to complain if Mr. Rosenstein overrules these two old opinions... If indictment is off the table, then impeachment must be on it.. if impeachment is off the table because of nefarious congressional activity, then indictment must be on it.
‘How Democracies Die’ Authors Say Trump Is A Symptom Of ‘Deeper Problems’
Harvard professors Steven Levitsky and Daniel Ziblatt are experts in what makes democracies healthy — and what leads to their collapse. They warn that American democracy is in trouble.
.. they argue that Trump has shown authoritarian tendencies and that many players in American politics are discarding long-held norms that have kept our political rivalries in balance and prevented the kind of bitter conflict that can lead to a repressive state. Steven Levitsky and Daniel Ziblatt are both professors of government at Harvard University. Levitsky’s research focuses on Latin America and the developing world. Ziblatt studies Europe from the 19th century to the present. Their new book is called “How Democracies Die.”Well, Stephen Levitsky, Daniel Ziblatt, welcome to FRESH AIR. You know, you write that some democracies die in a hail of gunfire. There’s a military coup. The existing leaders are imprisoned or sometimes shot. Not – this is not the kind of death of a democracy that you think is most relevant to our purposes. What’s a more typical or meaningful scenario?
STEVEN LEVITSKY: Well, the kind of democratic breakdown that you mentioned was more typical of the Cold War era, of a good part of the 20th century. But military coups, although they occur occasionally today in the world, are much, much less common than they used to be. And, in fact, the primary way in which democracies have died since the end of the Cold War, over the last 30 years or so, is at the hands of elected leaders, at the hands of governments that were often freely or close to freely elected, who then use democratic institutions to weaken or destroy democracy. And we’re very hopeful that America’s democratic institutions will survive this process. But if we were to fall into some kind of crisis, surely it would take that form.
.. And you note that there have been figures in American political history that could be regarded as dangerous demagogues and that they’ve been kept out of major positions of power because we’ve had gatekeepers – people who somehow controlled who got access to the top positions of power – presidential nominations, for example. You want to give us some examples of this?
LEVISKY: Sure. Henry Ford was an extremist, somebody who was actually written about favorably in “Mein Kampf.” He flirted with a presidential bid in 1923, thinking about the 1924 race, and had a lot of support, particularly in the Midwest. Huey Long obviously never had the chance to run for president. He was assassinated before that.
DAVIES: He was the governor of Louisiana, right?
LEVISKY: Governor of Louisiana, senator and a major national figure – probably rivaled really only by Roosevelt at the end of his life in terms of popularity. George Wallace in 1968, and again in 1972 before he was shot, had levels of public support and public approval that are not different – not much different from Donald Trump. So throughout the 20th century, we’ve had a number of figures who had 35, 38, 40 percent public support, who were demagogues, who didn’t have a strong commitment to democratic institutions, in some cases were quite antidemocratic, but who were kept out of mainstream politics by the parties themselves.
The parties never even came close to nominating any of these figures for president. What was different about 2016 was not that Trump was new or that he would get a lot of support but that he was nominated by major party. That’s what was new.
.. And so our behavior needs to be guided by informal rules, by norms. And we focus on two of them in particular – what we call mutual toleration, which is really, really fundamental in any democracy, which is simply that among the major parties, there’s an acceptance that their rivals are legitimate, that we may disagree with the other side. We may really dislike the other side. But at the end of the day, we recognize publicly – and we tell this to our followers – that the other side is equally patriotic, and that it can govern legitimately. That’s one.
The other one is what we call forbearance, which is restraint in the exercise of power. And that’s a little bit counterintuitive. We don’t usually think about forbearance in politics, but it’s absolutely central. Think about what the president can do under the Constitution. The president can pardon anybody he wants at any time. The president can pack the Supreme Court. If the president has a majority in Congress – which many presidents do – and the president doesn’t like the makeup of the Supreme Court, he could pass a law expanding the court to 11 or 13 and fill with allies – again, he needs a legislative majority – but can do it. FDR tried.
The president can, in many respects, rule by decree. If Congress is blocking his agenda, he can use a series of proclamations or executive orders to make policy at the margins of Congress. What it takes for those institutions to work properly is restraint on the part of politicians. Politicians have to underutilize their power. And most of our politicians – most of our leaders have done exactly that. That’s not written down in the Constitution.
.. You know, it’s interesting. I think one of the things that people say when people warn that Donald Trump or someone else could undermine American democracy and lead us to an authoritarian state is we’re different from other countries in the strength of our commitment to democratic institutions. And I’m interested to what extent you think that’s true.
.. The creed to which Daniel refers and the initial establishment of strong democratic norms in this country was founded in a homogeneous society, a racially and culturally homogeneous society. It was founded in an era of racial exclusion. And the challenge is that we have now become a much more ethnically, culturally diverse society, taken major steps towards racial equality, and the challenge is making those norms stick in this new context.
.. this is this great paradox – tragic paradox, really – that we recount in the book, which is that the consolidation of these norms, which we think are so important to democratic life of mutual toleration and forbearance, were re-established, really, at the price of racial exclusion. I mean, there was a way in which the end of Reconstruction – when Reconstruction was a great democratic effort and experiment – and it was a moment of democratic breakthrough for the United States where voting rights were extended to African-Americans. At the end of Reconstruction throughout the U.S. South, states implemented a variety of reforms to reduce the right to vote – essentially, to eliminate the right to vote for African-Americans. And so after the 1870s, American democracy was by no means actually really a full democracy. And we really think that American democracy came – really, it was a consolidated democracy really only after 1965.
.. It’s difficult to find a precise date. But we look at the 1990s and, particularly, the rise of the Gingrich Republicans. Newt Gingrich really advocated and taught his fellow Republicans how to use language that begins to sort of call into question mutual toleration, using language like betrayal and sick and pathetic and antifamily and anti-American to describe their rivals.
And Gingrich also introduced an era or helped introduce – it was not just Newt Gingrich – an era of unprecedented, at least during that period in the century, hardball politics. So you saw a couple of major government shutdowns for the first time in the 1990s and, of course, the partisan impeachment of Bill Clinton, which was one of the first major acts – I mean, that is not forbearance. That is the failure to use restraint.
.. DAVIES: And did Democrats react in ways that accelerated the erosion of the norms?
LEVISKY: Sure. In Congress, there was a sort of tit-for-tat escalation in which, you know, one party begins to employ the filibuster. For decades, the filibuster was a very, very little-used tool. It was almost never used. It was used, on average, one or two times per Congressional session, per Congressional period – two-year period – so once a year. And then it gradually increased in the ’70s, ’80s, ’90s.
.. It was both parties. So one party starts to play by new rules, and the other party response. So it’s a spiraling effect, an escalation in which each party became more and more obstructionist in Congress. Each party did – took additional steps either to block legislation, because it could, or to block appointments, particularly judicial appointments. You know, Harry Reid and the Democrats played a role in this in George W. Bush’s presidency – really sort of stepped up obstructionism.
.. So there’s this kind of spiral, you know, which is really ominous, where one side plays hardball by holding up nominations, holding up legislation in Congress, and there’s a kind of stalemate. And so the other side feels justified in using executive orders and presidential memos and so on. These also are – you know, have been utilized by Barack Obama. So there’s a way in which politicians, on both sides, are confronted with a real dilemma, which is, you know, if one side seems to be breaking the rules, and so why shouldn’t we? If we don’t, we’re kind of being the sucker here.
.. We think that the most egregious sort of pushing of the envelope began with Republicans, particularly in the 1990s and that the most egregious acts of hardball have taken place at the hands of Republicans. I’ll just list four –
- the partisan impeachment of Bill Clinton,
- the 2003 mid-district redistricting in Texas, which was pushed by Tom DeLay,
- the denial – essentially, the theft of a Supreme Court seat with the refusal to even take up the nomination of Merrick Garland in 2016 and
- the so-called legislative coup pulled off by the Republican-controlled legislature in North Carolina in 2016.
.. there’s two real things that Donald – President Trump has done that make us worry. One is his politicization of the rule of law or of law enforcement intelligence. And so you know, we – in a democracy, law enforcement intelligence have to be neutral. And what he has tried to do with the FBI, with the attorney general’s office is to try to turn law enforcement into a kind of shield to protect him and a weapon to go after his opponents. And this is something that authoritarians always do. They try to transform neutral institutions into their favor. And you know, he’s had some success of it. There’s been lots of resistance as well, though, from – you know, from Congress and from society and media reporting on this and so on. But this is one worrying thing.
A second worrying thing is – that you just described as well is his effort to – his continued effort to delegitimize media and the election process. So he – so one of the things that we worried about a lot in the book was the setting up – and we describe how – the process by which this happened – the setting-up of electoral commission to investigate election fraud.