US President Donald Trump may have claimed “total exoneration” following the special counsel’s investigation into Russian election interference, but his victory is not as clear-cut as he or his Maga fan club would like people to believe.
It was strongly recommended that “Paul Thomas writes a formal apology to President Trump for the many defamatory articles he has written about him”.
The critics are taking their lead from Trump, who claimed Barr’s letter amounted to “total exoneration, complete vindication”. (By his own admission, Trump is prone to hyperbole: he described the 2018 midterm elections, in which the Democrats wrested control of the House of Representatives and made sweeping gains in many state-level contests, as “very close to a complete victory” for the Republicans.)
So, what are the facts?
Barr’s four-page letter was a summary of Mueller’s almost 400-page report, which in turn was a distillation of a two-year investigation that generated two million pages of testimony, evidence and supporting documentation.
“The investigation,” wrote Barr, “did not establish that members of the Trump campaign conspired or coordinated with the Russian Government in its election interference activities.” A footnote revealed that Mueller defined coordination as “an agreement – tacit or express” – between the two parties.
Trump and his supporters notwithstanding, Barr did not say that Mueller found no evidence of conspiracy or coordination. Indeed, Andrew Napolitano, senior judicial analyst for the vehemently pro-Trump Fox News channel, declared his belief that, “In [the full] report will be evidence of obstruction of justice, interfering with an FBI investigation for personal gain, but not enough evidence to prove it beyond a reasonable doubt.”
Second, Barr noted that Mueller specifically did not exonerate Trump of obstruction of justice. To establish obstruction, wrote Barr, “the government would need to prove that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding”.
As Barbara McQuade, a former US district attorney, now a professor at the University of Michigan Law School, wrote on the Daily Beast website, “Under Department of Justice [DoJ] policy, criminal charges should be brought only if the prosecutor believes that a person’s conduct constitutes a federal offence, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction. This is a higher standard than probable cause.”
Especially, one would think, when the person in question is the president.
Barr and his deputy, Rod Rosenstein, took it upon themselves to conclude that “the evidence developed during the special counsel’s investigation is not sufficient to establish that the president committed an obstruction-of-justice offence”. Many believed that decision should have been left to Congress, after legislators have had the opportunity to absorb the full Mueller report (Barr has undertaken to provide a redacted version).
Barr’s rush to judgment was hardly a surprise. Before Trump appointed him attorney general, Barr sent the DoJ an unsolicited 19-page memo – a cynic might call it a job application – outlining why, in his opinion, a president cannot, as a matter of law, obstruct justice if he’s exercising his constitutional powers.
There’s a distinct echo here of disgraced ex-president Richard Nixon telling David Frost, during the famous 1978 interviews, that “when the president does it, that means that it’s not illegal”. It says something about the polarisation of the US over the past four decades that Nixon’s claim was almost universally scorned, whereas reaction to Barr’s opinion diverged along party lines – approval on one side and a mixture of alarm and resignation on the other.
Not in the clear
For the record, the investigation that Trump continues to portray as a “total witch-hunt” and an “elaborate hoax” has obtained multiple convictions and guilty pleas. Among those who have pleaded or been found guilty are Michael Cohen, Trump’s personal lawyer and “fixer” from 2006 until 2018; former lieutenant general Michael Flynn, briefly national security adviser in the Trump Administration; and Paul Manafort, Trump’s one-time campaign manager. Other members of the Trump circle are cooperating with the authorities or awaiting trial, notably long-time confidant Roger Stone, who faces seven counts including obstruction of justice, witness tampering and making false statements relating to the WikiLeaks dump of hacked Democratic National Committee emails.
Furthermore, the completion of the Mueller probe doesn’t mean Trump is out of the woods. Mueller handed off components of his investigation to various US Attorneys’ offices while state authorities in New York, Washington DC and Maryland are conducting investigations of their own.
Matters under investigation or the subject of legal action include:
- Cohen’s hush-money payments to porn star Stormy Daniels and Playboy playmate Karen McDougal, to ensure their affairs with Trump didn’t become public knowledge during the 2016 campaign. Cohen claims he made the payments, which may have breached campaign-finance laws, “in coordination with and at the direction of” Trump.
- Whether any of the record US$107 million raised by Trump’s inaugural committee came from illegal foreign sources, how the money was spent and what donors were offered in return.
- The activities of the now-defunct Trump Foundation. The New York State Attorney General’s office has filed suit against the foundation, alleging “a shocking pattern of illegality”.
- Whether Trump’s convoluted tax arrangements, going back several decades, violated New York State tax laws.
- Whether Trump’s Washington DC hotel violated the constitution’s emoluments clause, which forbids federal officials from receiving gifts or benefits of any kind from foreign governments.
And no fewer than six congressional committees are conducting investigations ranging from the big picture – corruption, abuse of power – to the specific, for instance why the Administration issued security clearances to at least 30 individuals against intelligence officials’ advice.
Barr’s letter covers none of this. It relates only to what became known as “collusion” – although the term has next to no meaning in US law – and obstruction of the investigation thereof.
No smoking gun
I have never asserted the Trump campaign conspired with the Russian government. In July 2017, I offered six possible innocent – if not necessarily flattering – explanations for what’s generally regarded as exhibit A for collusion: the Trump Tower meeting between Trump’s son Donald Jr, son-in-law Jared Kushner and Manafort and Russians who supposedly came bearing dirt on Hillary Clinton.
Reviewing the Mueller investigation in January 2018, I wrote that “we’re still at the stage where no scenario from ‘nothing burger’ to impeachment can be ruled out”. One possibility, I said, was that the investigation would conclude there was no “active, calculated collusion” and Trump didn’t know about or authorise whatever contact there had been with the Russians.
Another scenario I offered was Mueller concluding that Trump “presided over a cynical shambles of a campaign and therefore bears a moral responsibility for the actions of his underlings. However, establishing his legal responsibility for their illegalities would be difficult, if not impossible.”
And, in June 2018, I wrote that there was an element of wishful thinking in the conventional wisdom that Mueller was sitting on material explosive enough to blow Trump out of the White House. There was nothing in the list of questions, obtained by the New York Times, that Mueller intended to ask Trump if the latter consented to be interviewed (he never did) “to indicate Mueller has found a smoking gun”.
My argument all along has been that Trump is unfit to be US president and “leader of the free world” because he lacks the character, temperament, intellect, seriousness and solid core of humanity to occupy those roles and shoulder the awesome responsibilities that accompany them.
Herewith, from July 2018, a more detailed charge sheet:
“Donald Trump seems to be driven by a seething combination of ego, insecurity and the base instincts of greed, vengefulness and triumphalism. There’s no evidence of a coherent philosophy, moral code or even a rudimentary set of ideas. He doesn’t believe in the Enlightenment ideals of fraternity, liberty and tolerance or the ‘golden rule’, or the concept of objective truth. He doesn’t believe in anything that emerges from the media, except for Fox News and various far-right outlets, nor in what his officials and experts tell him. And it becomes clearer by the week that he doesn’t believe in the West, the community of advanced nations that share a commitment to democracy and human rights and whose economic, political and military alliance has been the primary stabilising influence on international affairs since 1945.
“Trump is knowingly tapping into a dark corner of the US psyche: the paranoid urge to retreat into ‘fortress America’ and pull up the drawbridge; the tendency to blame astonishing inequality and stagnant living standards on foreigners rather than their own fixation with capitalist dogma and distrust of government; and the provincialism that loathes what it doesn’t know or understand, partly because it perceives assumed superiority.”
Trump hasn’t been exonerated of any of that.
Following the herd
Immediately after Barr’s letter was released, Trump went to Grand Rapids, Michigan, for one of his redneck rallies. Roared on by the Make America Great Again (Maga) hat-wearing white tribe, the president mocked asylum seekers: “‘I’m very afraid for my life.’ It’s a big fat con job.” He showered personal abuse on one of his most dogged pursuers, the chairman of the House intelligence committee: “Little pencil-neck Adam Schiff. He has the smallest, thinnest neck I’ve ever seen. Sick, sick – these are sick people.”
And he sneered at government officials – the liberal “elite” – such as Mueller, a decorated Vietnam War veteran and former FBI director, who’d conducted the investigation: “I have a better education than them. I’m smarter than them. I went to the best schools, they didn’t. Much more beautiful house, much more beautiful apartment, much more beautiful everything. And I’m president and they’re not.”
This is leadership? Is it defamatory to say this is pathetic, mean-spirited and utterly unbecoming of any representative of the people, let alone the US president? In fact, it’s almost impossible to defame Trump given that he brings himself into contempt and ridicule by his own words and actions on a weekly basis.
Trump’s supporters have decided that his manifest lack of the virtues and personal qualities is an asset rather than a disqualifying flaw. There are various theories around this, one of the more compelling being that Trumpism is a cult and the essence of cults is that the herd is blind, uncritical and subservient to the great leader. There’s an impenetrable circular logic that ensures nothing the leader does can be questioned or faulted: if the leader did it, it’s perfectly fine because the leader did it.
I won’t apologise for not drinking the Kool-Aid.
This article was first published in the April 13, 2019 issue of the New Zealand Listener.