The Daily 202: Fox fallout shows why Trump’s lawyers don’t want Mueller to get an interview

— The National Enquirer kept a safe containing damaging documents on hush-money payments and other stories that it killed on Trump’s behalf. The AP’s Jeff Horwitz reports: “Several people familiar with the National Enquirer’s parent company … said the safe was a great source of power for [Pecker]. The Trump records were stored alongside similar documents pertaining to other celebrities’ catch-and-kill deals … By keeping celebrities’ embarrassing secrets, the company was able to ingratiate itself with them and ask for favors in return. But after [Karen McDougal’s catch-and-kill deal was revealed], those assets became a liability. … Fearful that the documents might be used against American Media, Pecker and [Howard] removed them from the safe in the weeks before Trump’s inauguration … It was unclear whether the documents were destroyed or simply were moved to a location known to fewer people.”

.. The Enquirer’s efforts to kill negative Trump stories extended way beyond the 2016 campaign: “Former Enquirer employees who spoke to the AP said that negative stories about Trump were dead on arrival dating back more than a decade when he starred on NBC’s reality show ‘The Apprentice.’ In 2010, at Cohen’s urging, the National Enquirer began promoting a potential Trump presidential candidacy, referring readers to a pro-Trump website Cohen helped create. With Cohen’s involvement, the publication began questioning [Obama’s] birthplace and American citizenship in print.”

.. — The Manhattan district attorney’s office is also weighing possible criminal charges against the Trump Organization and two of its senior officials. The New York Times’s William K. Rashbaum reports: “A state investigation would center on how the company accounted for its reimbursement to Mr. Cohen for the $130,000 he paid to [Stormy Daniels] … [Two] officials stressed that the office’s review of the matter is in its earliest stages and prosecutors have not yet made a decision on whether to proceed. State charges against the company or its executives could be significant because Mr. Trump has talked about pardoning some of his current or former aides who have faced federal charges. As president, he has no power to pardon people and corporate entities convicted of state crimes.”

.. “Trump’s lawyers counseled the president against the idea of pardoning anyone linked to the investigation … saying Trump should at least wait until [Mueller] has concluded his probe.

.. Asked about a pardon, one senior White House official said: ‘What does it accomplish? You pardon him, it doesn’t get rid of the Mueller probe, it causes you more headaches, he still has another trial, you have more Republicans coming after you.’”

.. “Trump’s consideration of pardons, while he praises associates who don’t cooperate with investigations and help those who praise him, also could have a chilling effect, law enforcement officials said,”

.. ‘The president has not a whit of respect for institutions, whether it’s the DOJ or the Fed or the FBI,’ said one former senior administration official. ‘If you are a threat to him, he is going to try to kill you.’

.. Two powerful members of the Senate Judiciary Committee who have been shielding Sessions gave air cover for Trump to fire him after Fox aired the interview. This is significant because a new AG who is not recused from the investigation could oversee Mueller’s work and rein in his probe.

.. — Sen. Lindsey Graham (R-S.C.), who recently golfed with Trump, said it’s “very likely” that the president will oust Sessions but urged him to wait until after the midterms to do so. “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said. “Clearly, Attorney General Sessions doesn’t have the confidence of the president.” (Graham sung a different tune last July. “If Jeff Sessions is fired,” he said then, “there will be holy hell to pay.”)

.. — Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) also shifted his position and announced he will now be able to find time to hold a confirmation hearing for a new attorney general this fall after the Supreme Court vacancy is filled. “Grassley said he was not advocating for a change at the Justice Department but simply responding to questions about timing,” Devlin Barrett, John Wagner and Seung Min Kim report. “Asked whether he still has confidence in Sessions, Grassley said: ‘Let’s put it this way, he’s a good friend.’

.. “Part of the disenchantment stems from a growing rift between Grassley and Sessions over Grassley’s legislation to change criminal justice policy. Sessions, whose views on law enforcement are shaped largely by 1980s-era mandatory-minimum sentences and harsh penalties for drug dealers, came out against the measure earlier this year, saying it ‘risks putting the very worst criminals back into our communities.’ Grassley has been willing to work with Democrats on legislation that would reduce prison sentences for some nonviolent drug offenders. He was furious that Sessions opposed his bill, one of his biggest legislative priorities… ‘It’s Grassley’s bill, and when the attorney general said he wouldn’t support it, Grassley said that was disloyal,’ said a person close to Sessions. ‘But … the attorney general isn’t going to be blackmailed.’”

Why Mueller Can’t Subpoena Trump

There are significant factual disputes about these episodes, but all involve the president’s exercise of his core constitutional powers as chief executive, including the power to appoint and remove high-level executive-branch officials, to supervise the performance of their duties (as in the Espy case), and to determine law-enforcement priorities. We have argued in these pages that the president cannot obstruct justice by exercising the discretionary powers of his office, especially in determining whether and why to fire high-level presidential appointees like Mr. Comey. According to the two leaked letters from Mr. Trump’s lawyers to Mr. Mueller, they take essentially the same view.

Any prosecution based on Mr. Trump’s exercise of his core constitutional authority would dramatically impair the executive’s status as a coequal branch of government, considering that Congress enjoys immunity under the Speech and Debate Clause while exercising its legislative powers. It would also inject the judiciary into the president’s decision-making process, requiring judges to delve into matters that are inherently political.

Developments over the past year reinforce our view that it would unconstitutionally debilitate the presidency to base an obstruction charge on gainsaying the president’s motives in exercising his core responsibilities. Mr. Trump’s critics have also accused him of obstructing justice by using his pardon power. They claim his pardons of Joe Arpaio, Scooter Libby and Dinesh D’Souza —whom he considers victims of previous political prosecutions—were meant to reassure targets of Mr. Mueller’s probe that they too might be pardoned. Under such logic, a president under investigation could not discharge his constitutional duties at all, including the use of military force overseas—which can always be cast as a “wag the dog” strategy.

..  That independent-counsel investigation did not concern the exercise of presidential authority. They concerned allegations of perjury and obstruction from Mr. Clinton’s personal relationship with a White House intern.

.. Because constitutional considerations were not in play

.. Mr. McGahn spent nearly 30 hours describing the substance of his conversations with Mr. Trump and offering his assessment that the president’s actions were lawful.

With access to the relevant documents and everyone around the president, the special counsel has no material facts left to find.

.. Interviewing or interrogating the president could shed additional light only on his own thoughts and motives—exactly what executive privilege is designed to protect.

.. Mueller knows that losing a subpoena court fight would prolong and delegitimize his investigation. He is unlikely to press the point.

 

This will never be normal

One of the current complaints of the Trump right concerns the treatment given to Alex Jones by Facebook, which has temporarily banned the Internet radio host for videos that violated “community standards.” According to Lou Dobbs of the Fox Business Network, “freedom of speech [is] under attack.” Fox News television personality Tucker Carlson has also come to Jones’s defense, saying sarcastically, “I know we’re supposed to think Alex Jones is way more radical than, like, Bill Maher.”

.. Well, yes, that is precisely what we should think. At various points, Jones has promoted the belief that

  • 9/11 was an “inside job,” that
  • Hillary Clinton was running a child sex ring out of a pizzeria, that
  • NASA had built a child slave colony on Mars in order to harvest blood and bone marrow, that
  • the Oklahoma City bombing,
  • the Boston Marathon bombing and the
  • Sandy Hook school shooting were government “false flag” operations, that
  • some shooting survivors were “crisis actors,” that
  • “globalists” are intent on committing genocide and that
  • Democrats are on the verge of launching a second civil war.

.. President Trump has made a great many unpleasant things unavoidable. He has appeared on Jones’s Infowars program and assured Jones that his “reputation is amazing.” The White House briefly gave Infowars a press credential. And Donald Trump Jr. has retweeted Infowars stories.

.. It represents not only a certain approach to political strategy but also a certain approach to morality, pressed to its logical extreme. Trump is not a dogmatist; he is an egotist. He judges others not by their convictions, or even by their hold on reality, but by their fidelity to his person. It is a form of identity politics in which all that counts is one man’s identity. So Sen. John McCain (R-Ariz.), being faithless to Trump, is an enemy. And the revealer of child slavery on Mars is a friend.

.. Remember when a white man in Boston, spouting Trump slogans, beat up a homeless man outside a subway station? Trump responded: “People who are following me are very passionate. They love this country and they want this country to be great again.”

.. Remember when a Trump supporter punched an African American man at a rally? Trump said that his follower “obviously loves his country.”

.. Remember when the alt-right provoked violence in Charlottesville? Trump pronounced some white nationalists to be “very fine people.”

.. The president has a nearly impossible time criticizing his fans, even when they are guilty of hate crimes and violence. In Trump’s own private creed, they are absolved of guilt by their loyalty to him.

.. This commitment

  • transforms their cruelty into the proof of passion; their
  • prejudice into an expression of patriotism; their
  • lawlessness into the embrace of his higher order. ‘

Just ask former Phoenix area

  • sheriff Joe Arpaio, pardoned after his abuse of Hispanic migrants. Or
  • Oregon cattle ranchers Dwight Hammond and his son Steven, pardoned after defying the federal government.

All were justified and sanctified by their devotion to Trump.

.. Any political movement is defined not just by what it aspires to, but also by whom it excludes. And the alt-right, the Alex Jones right, the white nationalist right know that they are fully included in Trump’s definition of his movement.

.. They know that their loyalty to him has been rewarded with a legitimacy they have craved for decades. And they are full, enthusiastic partners in the Trump project — to delegitimize any source of authority and information but his own.

  • .. Genuine populists are discredited by consorting with people who accuse elites of arming for mass murder.
  • The religious right is caught in bed with a diseased, seeping moral relativism. And
  • Fox anchors come to the defense of a man who verbally defiles the graves of murdered children.

 

Trump and the Return of Divine Right

In deploying his pardon power freely and using the Bible to justify family separation, the president is exactly the sort of ruler that Enlightenment thinkers feared.

The heartbreaking scenes on the southern border seem a world away from recent presidential pardons. Sobbing children and bereft parents have nothing in common with Joe Arpaio, Dinesh D’Souza and, most recently, the Oregon ranchers Dwight Hammond and his son, Steven, who had been convicted of arson in 2016 and whom President Trump pardoned on Tuesday. Yet both come down to a relationship between justice and mercy that has a long history — and a cautionary moral for the president.

Family separation shows justice without mercy. The pardon power displays mercy in the name of justice. The administration cites the biblical injunction to obey the powers that be as one explanation for their zero-tolerance policy on immigration. With regard to immigration, it seems, there can be no discretion. By contrast, presidential pardons show how extensive discretion can be, because the Constitution gives the president “power to grant reprieves and pardons for offences against the United States, except in case of impeachment.”

.. Most Enlightenment thinkers were uneasy about the pardoning power. The two greatest oracles for the Constitution’s framers, the French philosopher Montesquieu and the English lawyer William Blackstone, both attacked it. “Clemency is the characteristic of monarchs,”

.. The framers argued that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,” as Alexander Hamilton argued in Federalist No. 74. This was particularly true in “season of insurrection or rebellion,” Hamilton continued, “when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

.. With the ratification of the Constitution, George Washington received an array of powers many European monarchs might have envied. The president could veto legislation — something no British monarch had done since 1707

.. He has used the pardoning power as one of his few unfettered prerogatives, in just the undemocratic way Enlightenment thinkers feared. For them, authority flowed from the people, not from God; the pardon was a residue of divine right. When Attorney General Jeff Sessions cites Paul’s epistle to the Romans to justify family separation, he not only revives an argument used to defend absolutism and slavery but also implies there is still a power above the law defined by the Constitution.

.. The president can casually exercise his discretionary power to pardon Mr. Arpaio, who abused prisoners in his care, but then claims he is powerless to end a policy worthy of Sheriff Joe himself.