Corey Lewandowski’s Self-Immolation

The former Trump campaign manager’s disastrous performance shows that impeachment hearings work.

The Mueller Investigation Was Always an Impeachment Probe

There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.

And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.

Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)

This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.

Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.

To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.

In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.

Once you understand that, it is easy to see what happened here.

Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).

Why Justin Amash stands alone

“Contrary to Barr’s portrayal, Mueller’s report reveals that President Trump engaged in specific actions and a pattern of behavior that meet the threshold for impeachment,” Amash said. “In fact, Mueller’s report identifies multiple examples of conduct satisfying all the elements of obstruction of justice, and undoubtedly any person who is not the president of the United States would be indicted based on such evidence.” That judgment is supported by more than 900 former federal prosecutorswho have signed onto a letter reaffirming this exact point.

Not surprisingly, Trump punched back at Amash on Sunday, tweeting that Amash is “a loser” and “a total lightweight who opposes me and some of our great Republican ideas and policies just for the sake of getting his name out there through controversy.”

.. First are the cynics who know Trump is unfit, if not dangerous; however, they’ll get what they can (e.g., judges, tax cuts) and bolster their resumes (e.g., working for the administration, getting fawning Fox News coverage). When Trump bottoms out, they’ll move on, probably insisting they were secretly against Trump all along. They consider Republicans who’ve resisted Trump such as the Weekly Standard’s editors and writers, who refused to imbibe the Trump Kool-Aid and in the process lost their publication, to be fools, saps and fusspots upset about a few tweets, dumb lies and crass language. All politicians are rotten, right, so why not grab what you can get?

..So we return to the question that vexes NeverTrumpers and Democrats: Why are Republicans such quivering sycophants, willing to lie and debase themselves in support of an unpopular president who is repudiating many of the principles they have spent their lives advancing?

I’d suggest there are three distinct groups of Republican grovelers. Some may fall into multiple categories.

  1. First are the cynics who know Trump is unfit, if not dangerous; however, they’ll get what they can (e.g., judges, tax cuts) and bolster their resumes (e.g., working for the administration, getting fawning Fox News coverage). When Trump bottoms out, they’ll move on, probably insisting they were secretly against Trump all along. They consider Republicans who’ve resisted Trump such as the Weekly Standard’s editors and writers, who refused to imbibe the Trump Kool-Aid and in the process lost their publication, to be fools, saps and fusspots upset about a few tweets, dumb lies and crass language. All politicians are rotten, right, so why not grab what you can get?
  2. In the second category are Republicans convinced that they’ll never find work if they speak out against Trump. They’ll lose their offices and/or offend Republican officialdom, including think tanks, right-wing media, donors, party activists and elected officials. (They are part of a right-wing ecosystem; some might call it a racket.) No plum lobbying gigs or Fox contributorships for them. They fear ostracism would ruin them financially and personally, leaving them in a political wilderness from which they fear they’d never return. They, like the cynics, occasionally feel a pang of conscience, especially when NeverTrumpers remind them that there is an alternative to self-debasement. They then will swiftly revert to “But Gorsuch and Kavanaugh” or “But taxes” to justify their moral and intellectual collapse. They’ll whisper behind closed doors that Trump is a menace, but coo and kvell over him when the cameras are on.

  3. And finally, there are the cranks, the zealots, the racists and the haters — a group, it turns out, much larger than many ex-Republicans could ever fathom. This includes not just the overt white nationalists and the tea party crowd but also those who have been simmering with personal resentment against “liberal elites.” Vice President Pence insists he and his fellow evangelical Christians are hapless victims; the children and grandchildren of Dixiecrats fume that everything went downhill in the 1960s. Some of these people will insist they are not racists nor misogynists — but yet they sure seem to have an extraordinarily high tolerance for those who are.

If you eliminate the retirees who couldn’t take it any more (e.g., former U.S. senator from Arizona Jeff Flake), the cynics, the scaredy-cats and the resentful self-made victims, you’re down to a precious few congressional Republicans who will refuse to rationalize (and even praise) whatever Trump does. Only 13 House Republicans and 12 Senate Republicans voted to block Trump’s noxious emergency declaration on the U.S.-Mexico border, which amounted to a repudiation of our constitutional government of separation of powers.

I’d love to think Amash’s statements free and embolden many more Republicans in the House and Senate to step forward.

Is that likely? No.

This is why voters must continue to reject Trump and Trumpism, driving the current crew of Republicans out of office. Only then, like saplings poking up from the ashes of a forest fire, can new, sustainable and decent political life on the right emerge. Unless and until Amash has many, many allies, the voters must do the heavy lifting of ridding ourselves of Trump and Trumpism.

How Barr’s Excerpts Compare to the Mueller Report’s Findings

Attorney General William P. Barr sent a letter to Congress last month citing brief fragments from the Mueller report. Now that the document is public, his selections are coming under scrutiny.

“In making this determination, we noted that the special counsel recognized that ‘the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the president’s intent with respect to obstruction.”

Vol. II, Page 157: Obstruction of justice can be motivated by a desire to protect noncriminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the president’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians could be seen as criminal activity by the president, his campaign or his family.

Mr. Barr, in explaining why he was declaring Mr. Trump cleared of obstructing justice, cited this sentence fragment about how the evidence Mr. Mueller had gathered did not prove there had been any conspiracy with Russia for Mr. Trump to cover up. This use of Mr. Mueller’s words turned the special counsel’s meaning on its head: The brief excerpt came from a list of other possible reasons Mr. Trump might have had to corruptly impede the investigation, and which Mr. Barr did not mention.

FROM WILLIAM P. BARR

“The special counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.’”

FROM ROBERT S. MUELLER III

Vol. I, Page 1:The investigation also identified numerous links between the Russian government and the Trump campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.

Mr. Barr took a larger passage in which the Mueller report suggested that the Trump campaign and the Russian government were knowingly dancing together at a distance, and then excerpted a fragment to make it look like a cleaner exoneration.

“In assessing potential conspiracy charges, the special counsel also considered whether members of the Trump campaign ‘coordinated’ with Russian election interference activities. The special counsel defined ‘coordination’ as an ‘agreement — tacit or express — between the Trump campaign and the Russian government on election interference.’”

FROM ROBERT S. MUELLER III

Vol. I, Page 2:We understood coordination to require an agreement — tacit or express — between the Trump campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.

In the second sentence, which Mr. Barr omitted, Mr. Mueller again emphasized that there can be a type of complicit conduct that falls short of how the special counsel defined coordination.

FROM WILLIAM P. BARR

“After making a ‘thorough factual investigation’ into these matters, the special counsel considered whether to evaluate the conduct under department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.”

FROM ROBERT S. MUELLER III

Vol. II, Page 2: Second, while the O.L.C. opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible. The O.L.C. opinion also recognizes that a president does not have immunity after he leaves office. And if individuals other than the president committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

In his letter to Congress, Mr. Barr did not explain that Mr. Mueller was trying to leave open the possibility that prosecutors in the future, after Mr. Trump leaves office, could look at the evidence he gathered and decide then whether to indict Mr. Trump. That rationale — which stemmed from the view of the Justice Department’s Office of Legal Counsel, or O.L.C., that sitting presidents cannot be indicted but former presidents lose such immunity — conflicted with Mr. Barr’s move to pronounce Mr. Trump cleared now.

FROM WILLIAM P. BARR

“The special counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the special counsel views as ‘difficult issues’ of law and fact concerning whether the president’s actions and intent could be viewed as obstruction. The special counsel states that ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’”

Mr. Mueller used those two phrases twice, in slightly different formulations:

FROM ROBERT S. MUELLER III

Vol. II, Page 2: Fourth, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.

Vol. II, Page 8: Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct. The evidence we obtained about the president’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.

In his letter, Mr. Barr did not explain why the special counsel had demurred from making any prosecutorial judgment on obstruction beyond a cryptic reference to what he said Mr. Mueller had described as “difficult issues” of law and fact. His suggestion was that these unspecified issues prevented Mr. Mueller from making a call “one way or the other.” In fact, Mr. Mueller made clear that the difficulties resided in accusing Mr. Trump of committing a crime; if the facts had exonerated him, he would have been willing to say so.