Something is up. Things couldn’t be this strange – but Donald Trump is president and, with no experience in government or public policy or diplomacy or military matters, and no sense of what has come before and what allies expect of America, things were bound to be strange. And now he has rid himself of all those with knowledge of how things work, or should work. McMaster knew these things. Mattis knew these things. Even the much-abused Old South kind-of-racist-still Jeff Sessions knew these things – the law – the structure of the government – who had what authority to do this or that and who didn’t. There were actual rules about such things. Donald Trump didn’t know them. He didn’t want to hear about them. He’d do things his way. He’d do things in a way they’d never been done before.
That was his mandate. He did win the election even if he lost the popular vote, badly. That didn’t matter. That’s the system. There were enough people who wanted him to blow it all up. He was rich. He’d do fine. Let him blow up the government. Who needs it anyway?
Everyone needs it of course. The issues used to be about size and function of government – but roads and bridges and dams and schools and a military to protect it all, and police and firefighters too, and basic rules that everyone agrees on, were considered fine. The Constitution was considered fine. That was the mechanism by which the people governed themselves. That was useful. Keep it. That has established our system of government.
But something is up with our system of government. Donald Trump has overloaded the system. That’s what Jeffrey Toobin argues here:
Our constitutional system never contemplated a President like Donald Trump. The Framers anticipated friction among the three branches of government, which has been a constant throughout our history, but the Trump White House has now established a complete blockade against the legislative branch, thwarting any meaningful oversight. The system, it appears, may simply be incapable of responding to this kind of challenge.
That challenge would be this:
The President has been candid about his plans for responding to investigations from the House of Representatives, which has been controlled by the Democrats since January. “We’re fighting all the subpoenas,” Trump said, last month, and the pace of his defiant actions has since quickened. The President and his Administration have defied congressional inquiries about security clearances, access to the full Mueller report, the President’s bank records, his tax returns, and the continuing investigation of his campaign’s ties to Russia. No White House documents have been produced to Congress; after the Attorney General, William Barr, made a contentious appearance before the Senate Judiciary Committee, last week, no other Administration officials have agreed to testify.
And don’t expect the courts to help:
Disputes between the executive and legislative branches about document production and witness testimony invariably wind up before the judiciary, and judges look at these disputes on a case-by-case basis. If the courts proceed this way, the quality of the Trump Administration’s claims will vary.
For example, the Justice Department has a pretty good argument to withhold portions of the Mueller report from the Judiciary Committee. The law requires federal prosecutors to protect grand-jury secrets and to safeguard the integrity of pending investigations – and courts might well honor the Administration’s position to keep that redacted information from Congress.
On the other hand, the argument made by the Treasury Department to withhold the President’s tax returns from the House Ways and Means Committee seems almost frivolous. The law could not be clearer. It states, “Upon written request from the chairman of the Committee on Ways and Means… the Secretary shall furnish such committee with any return or return information specified in such request.”
Sometimes laws mean what they say: “shall furnish” means “shall furnish.”
Fine, but Toobin sees bigger problems here:
This kind of case-by-case approach has worked reasonably well in the past, even in contentious political environments. But this approach by the courts – adjudicating one Administration claim of defiance at a time – will miss the point in the current era. There has never been a President who directed an open campaign of total defiance against another branch of government. It is simply misleading to consider these claims in isolation from one another, because the President has acknowledged that they are part of a coordinated campaign.
And that overloads the system:
The law has no clear mechanism for adjudicating these claims together – but they belong together. Trump is leading a political campaign, and it calls for a political, not just judicial, response.
And that would be impeachment, but that may be impossible here:
One article of impeachment against President Richard Nixon accused him of failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas.” But the Trump Administration is likely to fight all subpoenas in court and wait for resolution there; only then will it be possible to say whether the resistance to all subpoenas is “without lawful cause.” And these cases will drag on.
Indeed, Administration lawyers know that bad arguments, as well as good ones, can tie up the courts for months, if not years. Democratic leaders in the House are already skeptical, for political reasons, of pursuing impeachment, and lingering, unresolved disputes in the courts will make a push to remove the President even less likely.
So, after nearly two and a half centuries, Trump will create a new constitutional norm – in which the executive can defy the legislature without consequence.
Toobin then says that the only remaining remedy for all this is to vote the guy out of office. Toobin doesn’t discuss the odds of that happening. They may be slim.
But sometimes someone somewhere at someplace at some odd moment does do the right thing:
President Trump sought to have former White House counsel Donald McGahn issue a public statement last month that he did not believe the president had engaged in criminal conduct when he sought to exert control over the Russia investigation – a request McGahn declined, according to people familiar with the episode.
He simply said no. That was asking too much:
McGahn had told the special counsel’s office that he did not think Trump’s actions rose to the level of obstruction of justice, two people familiar with his interviews said. But Mueller’s report concluded that there was substantial evidence the president had engaged in obstruction of justice when he pushed McGahn to help oust special counsel Robert S. Mueller III. McGahn’s view was not disclosed in the report…
As Trump’s attorneys prepared for the public release of Mueller’s report last month, the White House sought for McGahn to issue a statement making public what he had told Mueller’s team, according to people familiar with the discussions, who, like others commenting for this story, spoke on the condition of anonymity.
McGahn had his position, but he wasn’t going to give Trump some papers to wave in the air while he sneered. McGahn just didn’t want to play anymore:
McGahn’s refusal to make a public statement appeared to annoy the president and some of his aides, who believed McGahn was being unnecessarily uncooperative, the people said.
After the report’s release, Trump attacked McGahn on Twitter, and Trump’s attorney Rudolph W. Giuliani began raising questions about McGahn’s credibility and version of events. He told The Washington Post that McGahn would have left the White House if he thought Trump had engaged in a crime.
In an interview with Jake Tapper on CNN, Giuliani said McGahn was “wrong” about what Trump asked him and “hopelessly confused.”
Let them call him a confused fool. He just wasn’t going to play anymore. He wasn’t going to be a pawn in whatever game these guys were playing. They liked breaking the rules and sneering. McGahn was just tired. That’s one way to read this.
But there’s no charitable way to read what Jonathan Chait discusses here:
In 2016, Donald Trump’s campaign learned Russia was working to help him win, and many of its members actively sought to exploit that assistance. In 2020, now possessing the powers of the Executive branch, it’s pressuring a foreign government to assist Trump’s reelection campaign. The effort consists of Trump’s agents lobbying Ukraine to smear his political rivals.
The smear campaign is being run by Rudy Giuliani, who – perhaps operating on the theory that a massive scandal boasted about in the media by its perpetrators is less damaging than one uncovered by investigators – is broadcasting his scheme. “There’s nothing illegal about it,” he tells the New York Times. “Somebody could say it’s improper.”
Chait will say that:
It’s grossly, terrifyingly improper.
Giuliani is trying to get Ukraine to pursue two investigations: one against the last Democratic presidential nominee, and another against the leading candidate to be the next one. The first is based on murky charges that have circulated on the right that Hillary Clinton’s campaign conspired with Ukraine to gin up the Russia investigation. (This presumes that without Clinton starting it, there was no serious evidence to investigate Trump’s connections to Russia, which is absurd on its face.)
The second is based on charges that, during his time as vice-president, Joe Biden improperly used his power to benefit his son, Hunter. The Times laid out this accusation in a lengthy report last week. The charge is that Hunter Biden was working for a Ukrainian energy company that was being threatened with prosecution, and Joe Biden demanded Ukraine fire the prosecutor.
But Bloomberg News investigated this claim and thoroughly debunked it. Bloomberg reveals that the prosecution of Hunter Biden’s client had already been shelved at the time Joe Biden was calling for the prosecutor to be removed. And, as the Times acknowledges, the prosecutor Biden called on to be fired was widely considered to be corrupt, and the Obama government supported the prosecution of Hunter Biden’s client anyway. There is no quid, no pro, and no quo in this story. Biden acted completely in line with administration policy, and his actions had no bearing on his son’s interests.
And that begs a question which is easily answered:
So why would Ukraine pursue baseless charges? Because its government has a strong interest in mollifying Trump. The Times reported last year that Ukraine halted its cooperation with the Mueller probe because it couldn’t risk provoking Trump. “The cases are just too sensitive for a government deeply reliant on United States financial and military aid, and keenly aware of Mr. Trump’s distaste for the investigation by the special counsel, Robert S. Mueller III, into possible collusion between Russia and his campaign, some lawmakers say.”
Having used that leverage defensively to get Ukraine to withhold cooperation into the probe of his campaign, Trump is now using it offensively, to gin up charges against his targets.
And this is not Giuliani at work but Trump:
His involvement and interest in the effort is transparent. During one of Giuliani’s meetings with Ukrainian officials, he “called Mr. Trump excitedly to brief him on his findings.” Giuliani tells the Times that his work has Trump’s “full support,” and he is making the president’s interest extremely clear to Ukraine’s government. “I’m going to give them reasons why they shouldn’t stop [the investigation] because that information will be very, very helpful to my client,” he says.
Trump is already burbling excitedly about the project. “I’m hearing it’s a major scandal, major problem,” Trump said on Fox News. “I hope for [Biden] it is fake news. I don’t think it is.”
So it’s system-overload again:
On its face, there is nothing illegal here. Trump is leveraging his power as president to compel a dependent foreign government to smear the opposition party. It’s just something no president has ever thought to do before.
Josh Marshall echoes that:
Ukraine remains highly dependent on the United States, diplomatically, economically and even militarily, at least in the sense of arms sales. Russia continues a de facto occupation-insurgency in the country’s east. Crimea has already been annexed by the Russian Federation. The government of Ukraine is in little position to say no to anything the US government asks for.
There’s already substantial evidence that Trump used his leverage to get the Ukraine government to end its cooperation with the Mueller probe in 2018. There’s really little question this happened. The open question is whether the President or his representatives had to ask explicitly or whether the government didn’t need to be told.
But that may not matter:
To the extent President Trump has leverage over Ukraine – that is not his personal property or asset. That’s power he exercises on behalf of the American people. But here he’s using it openly to target political enemies…
This is the most open and shut kind of abuse of office imaginable.
Paul Waldman agrees with that:
There are some news stories so jaw-dropping that you have to read them two or three times to make sure you’re not hallucinating. So it is with a story in the New York Times in which Rudolph W. Giuliani announces to the world that he is going to Ukraine to pressure that country’s government to use its official resources to assist in President Trump’s reelection effort – by mounting an investigation he hopes will produce dirt on Joe Biden.
Yes, Trump is trying to collude with a foreign government in an attempt to aid his campaign by creating negative stories about a potential opponent. Again.
“Oh come on,” you’re saying. “You’ve got to be exaggerating.”
I’m not. The Trump team is apparently streamlining its previous pattern, which was to try to secretly work with a foreign government on its campaign, angrily deny it when it’s revealed and then, when caught by incontrovertible evidence, insist that there was never anything wrong with doing it in the first place.
They’re now skipping over the secrecy and denial parts, and just doing it openly.
In fact, no one is hiding anything:
Giuliani has repeatedly met with Ukraine’s current chief prosecutor in New York, with an agenda that couldn’t be clearer: to push the government of Ukraine to help Trump get reelected by (1) discrediting an investigation into his former campaign manager, and (2) restarting an investigation he hopes will cast a potential opponent in a negative light.
Giuliani has also been spreading a bizarre conspiracy theory in which the U.S. ambassador to Ukraine, a career diplomat, is engaged in an anti-Trump conspiracy with George Soros and the Democratic National Committee.
It seems that Toobin was right. Our constitutional system never considered a President like Donald Trump. The system may simply be incapable of responding to this kind of challenge. That’s what Waldman sees:
I’ve argued that Trump is going to mobilize the resources of the federal government to destroy his eventual opponent. Trump has already told Sean Hannity that Attorney General William P. Barr is looking into what he called “incredible” charges involving Ukraine and Hillary Clinton, no doubt at his suggestion. This is only the beginning of what Trump is going to pull, and there’s every reason to think that he feels utterly unrestrained by law or ethics.
That Trump would do this at all is shocking and despicable. That he would do it so openly is proof that he really does think he can get away with anything.
And maybe he can.