The better angels of Robert Mueller's nature

As I scoured the Mueller Report the past couple of days for yet more evidence of presidential crimes, I found myself in the position of uncovering evidence of an unexpected glimmer of human virtue. And what struck me at first as just an interesting nuance to a complicated legal discussion now appears to me to be the pivot around which the morality tale of the entire story of the Trump administration turns.

To put things in context, we have been aware since the days of Watergate that the legal question of indicting a sitting president — and by that I mean bringing formal criminal charges — is fraught. In fact, according to Justice Department guidelines, such an indictment isn’t permitted because it would undermine the capacity of the executive branch to perform its constitutionally assigned functions. Robert Mueller, a by-the-book kind of prosecutor if there ever was one, hewed to this established policy while formulating the results of his almost two-year long investigation into Russian meddling in our 2016 presidential election.

This tale of non-indictability is the beginning and end of the story in most of the news coverage of why Mueller chose not to charge President Trump with obstruction of justice for his interference with an ongoing federal investigation. But there is more to it than that.

Some coverage does go further and points out that Robert Mueller takes the opportunity in his report to refute the theory — championed by Attorney General William Barr and others — that it is indeed legally impossible for the president of the United States to obstruct justice. Good for him.

Barr’s expansive reading of executive power ignores the role that “corrupt intent” plays in determining the criminality of a presidential act. If such a twisted doctrine were upheld, it would permit, say, the president to trade get-out-of-jail pardons for cash on the barrelhead. Such a reading of the constitution, one which places any president above the law, is little more than a prescription for tyranny.

But Robert Mueller goes beyond simply adhering to Justice Department regulations concerning indictments and beyond refuting Barr’s dangerous constitutional interpretation of executive power in his treatment of the question of obstruction of justice. He could have, if had wanted to, included an opinion that the president had committed obstruction of justice even while he refrained from issuing a criminal indictment. This threading-the-needle is the path that many Trump opponents had hoped for. It was certainly at the top of my list.

So why did Mueller choose to hedge his bets and take this ambiguous path? The answer in one word is “fairness.” As the Mueller explains on page 2 of volume 2 of his report: “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”

And why would it be unfair to make claims of criminal behavior absent the ability to bring formal charges? Mueller continues,

“[t]he ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator. “

In other words, in this analysis, although the protection of the president from criminal indictment serves the constitutional purpose of allowing the executive branch to operate free from the inevitable legal entanglement that it would imply, it is, at least in Mueller’s mind, a personal disadvantage for the president in these circumstances.

Take a moment and let that sink in: Robert Mueller believes that freedom from criminal indictment can, at times, be a personal liability since it makes it impossible to defends one’s reputation against damaging charges in open court. In Mueller’s opinion, charging the president in the report, but not through due legal process, would subvert the president’s right to his clear his name of accusations leveled against him.

So, ultimately, the Special Counsel’s decision not to declare the president’s efforts at obstruction as crimes had to do with Mueller’s commitment to fairplay and to the ability of someone under legal scrutiny to defend his reputation. This was not a conclusion I expected.

There are two glaring ironies at play here. The first has to do with the fact that Robert Mueller appears to be more dedicated to Donald Trump’s ability to protect his good name than the president himself, at least in practice. It’s hard to think of any living politician more disreputable or anyone holding a position of public office who has conducted himself with such unabashed disregard to standards of moral rectitude.

The second irony in Mueller’s taking up Trump’s cause in this way is even more disturbing. While Mueller inhabits a civil world of due process in which the right of suspected criminals to defend their reputations must be preserved, Donald Trump lives in a thuggish world of brute power where adversaries are to be spared no quarter and dispatched by any means necessary, including nefarious ones.

The implication here is startling: Donald Trump has spent the better part of the last 23 months smearing the reputation of Robert Mueller with insults and baseless lies, the very Robert Mueller who, it turns out, was busy making sure that Donald Trump would not have his reputation sullied unfairly. If there is a better example of turning the other cheek in American political history, it escapes me.

All this said, I’m not exactly sure how I feel about Mueller’s decision not to present clear claims of obstruction of justice in his report even in spite of his inability to indict Trump. Such declarations could have gone a long way toward helping to clarify the ongoing public debate. In addition, a forthright statement of Trump’s criminality could have provided additional impetus to the Congressional investigations underway that could have helped propel them beyond mere impeachment of the president in the House to the possibility of his conviction in the Senate.

It may very well be that Robert Mueller’s commitment to fairplay has made it more difficult to remove Donald Trump from office before his term is up. But, in any event, it has illuminated for me the central moral question presented by the Trump administration I alluded to at the start.

We are all witnesses to an unfolding battle which pits an age-old, corrupt form of politics rooted in the exercise of raw power, as exemplified by Donald Trump, against an enlightened political system committed to justice and fairplay, as exemplified by Robert Mueller.

Although I believe that Mueller’s decision to err on the side of fairness may prove to be a short-term tactical mistake, in the long run I feel that it will be seen as a turning point for distinguishing the mobster politics of Donald Trump from the legitimate exercise of political power based in law. This may very well be what, in Lincoln’s words, the better angels of our nature demand. It appears that Robert Mueller may have heard their call.

Someone is responsible for destroying American democracy and, surprise, it's not the Russians

One of my favorite science movies is Steven Soderbergh's 2011 Contagion. Not only is it smart and riveting, it also features three strong women scientists as its heroes. See the short essay I wrote to  see why I loved this film.

For those unfamiliar with it, Contagion - to the extent cinematically practical - realistically portrays the unfolding of a deadly global pandemic and the valiant efforts of scientists around the world to wrestle it to the mat.

Atlanta's Centers for Disease Control is a setting of the film. (They even participated in its production.) In the story, the director of CDC Dr. Ellis Cheever, played by Laurence Fishburne, is confronted by a U.S. government agent who suspects that the pandemic is the result of terrorists weaponizing the bird flu. To which Cheever responds, "someone doesn't have to weaponize the bird flu.The birds are doing that."

I like sharing this quote because it applies to so many situations where people jump at dramatic explanations while overlooking the explanations that are staring them right in the face.

Take for instance the current hue and cry about Russia trying to destroy our democracy. Now, there's little doubt in my mind that Russian agents, under the direction of Vladimir Putin, have committed criminal acts in order to influence the outcome of the 2016 presidential election. Perhaps they're still at work trying to do the same for the upcoming midterms.

But when it comes to destroying American democracy, I take a cue from the CDC director in Contagion and say, "the Russians don't have to destroy our democracy. The Republicans are already doing that."

All the havoc wrought by Putin and his gang of twelve indicted GRU agents and their stateside colluders pales in comparison with the damage that has been done over the past decade by the combination of gerrymandering and voter suppression engineered by the GOP and their agents at all levels of government. If the democratic process dies in this country, we will have no one to blame other than the Republican Party.

The fact of the matter is that much of the Russian threat to our electoral process can be effectively addressed by securing our electoral infrastructure. My guess is that, for less than the cost of a single advanced fighter aircraft, we could put in place the digital defenses necessary to keep Russian - and other - attackers out of our ballot boxes.

I wish I could say that it was a fraction as easy to address the threat posed to our democratic system by Republicans. We will have to regain control of a number of state houses in order to reverse the gerrymandering already in place. As it stands now, with an increasingly Republican Supreme Court, overturning of the despicable Citizens United decision which elevates the rights of corporations to those of citizens in our electoral process, is a pipedream. And it looks as though hope to turn back GOP voter suppression measures targeting people of color are likewise doomed for the near future.

So, by all means, let's do the easy stuff that's required to frustrate Russian and other hackers who are trying to mess with our elections. But let's not forget that our greatest enemy when it comes to undermining democracy in this country is the Republican Party. And the only way to defeat their nefarious designs is to beat them soundly at the polls come this November. It could very well be our last chance to do so.

Why subpoenaing Trump's interpreter at Helsinki is a bad idea

I'm not a big fan of the doctrine of executive privilege which contends that a president can withhold information resulting from the internal operation of the executive branch of government. Its invocation, as Richard Nixon's effort to suppress the release of the Watergate tapes illustrates, is used more often than not to keep information critical to the functioning of our democracy from seeing the light of day.

That said, it makes sense to me that presidents should be able to engage in frank, off-the-record, private conversations with individuals, including other world leaders. I believe this because such conversations are an important way for them to explore the range of policy options, some speculative, that are part of good decision-making. Releasing a transcript or compelling testimony by third-parties would have a chilling effect on such discussions.

Of course, this note has to do with the recent demand that the interpreter present at the private conversation between Donald Trump and Vladimir Putin in Helsinki Monday be subpoenaed by Congress to testify about what she heard. Although a congressional committee could issue such a subpoena, it's hard for me to imagine that it would be upheld by by a federal judge when confronted with assertion of executive privilege for the reasons outlined above.

Might there be exceptions? Didn't Nixon end up having to release his tapes under threat of a subpoena after all?

I do think that there are exceptions and that they mostly have to do with demonstration of probable cause that conversation in question was implicated in the commission of a crime. In spite of the clamor about Trump being a traitor, I suspect that the standard of probable cause would be hard to meet in this instance. My guess is that most federal judges - and ultimately the Supreme Court - would see this subpoena as little more than a politically motivated fishing expedition.

And, in the usual and understandable rush to undercut Donald Trump, we should consider what would be lost if such a subpoena succeeded. Well for starters, as an article in the New York Times today points out (see "Who Heard What Trump Said to Putin? Only One Other American" in the comments), it would compromise the professional ethics of people who serve as interpreters. The likely result being that only political lackeys would be selected do a job that demands the highest level of language expertise.

More significantly, and something that appears to be lost on Trump opponents who are forever looking for new legal mechanisms to thwart his administration, it opens the door to all conversations between future presidents and world leaders where an interpreter or a notetaker is present being subject to revelation by subpoena.

For example, would we want President Elizabeth Warren's private discussions with her Chinese counterpart to always be a matter of public record? Do we really want already trigger-happy Republican congressional committee chairs - I'm looking at you Trey Gowdy - turning every trip by a Democratic president abroad into a subpoena battle?

Finally, although there's absolutely no changing their minds, Republicans are using what they see as politically motivated legal tactics to convince their base that legitimate legal process, like the Mueller investigation, are nothing more than cynical sour grapes on the part of Democratic losers. Calling for the subpoena of Trump's interpreter in Helsinki plays right into their hands.