[Note: this piece was filed on Sunday at 2 pm, revised after the release of Attorney General Barr’s letter at 4 pm, and refiled for publication at 6 pm. God only knows what will transpire in the interim.]
The issue has always been the need to defend democracy by addressing its weaknesses and limits, and to improve and deepen democracy by defending it from its enemies.
I have been arguing for over two years that Donald Trump is an aspiring autocrat, and perhaps even an aspirational fascist (William Connolly’s apt phrase), who endangers important constitutional, legal, and normative features of liberal democracy. In this regard he can be likened to a range of similar right-wing political leaders–sometimes called right-wing authoritarian or right-wing populist—who currently hold governmental power in countries such as Hungary, Poland, Brazil, and Turkey, and who contend for political power in most other liberal democracies. Trump is neither an aberration nor a demon. He is a malevolent political leader who emerged from a dysfunctional political system and must be defeated by political means. The controversies surrounding the Mueller investigation, and the scurrilous and dangerous behavior it has disclosed, have always been simply a part of this much broader process of politically opposing Trump and of seeking to end or at least mitigate the conditions that helped bring him to power.
In January of 2017, within days of Trump’s inauguration, I published a piece at Public Seminar entitled “Thoughts on Trump and Putin: Democratic ‘Interference’ and the Transnational Contest for ‘Democracy.’” In that piece I argued that while the questions of Russian “interference” and even possible “collusion” are important, more important are the political and ideological circumstances that define the Trumpist moment:
“The Russian cyber campaign against the Democratic Party, and in favor of Donald Trump’s candidacy, represents a frightening disruption of and interference in the US electoral process. If suspicions that there were contacts between the Kremlin and the Trump campaign about such efforts turn out to be true, the interference would be more glaring, and might even be considered a conspiracy to disrupt the Presidential election. This is serious, though it is extremely unlikely at this point that such knowledge would have any bearing on the occupant of the White House.
But more serious is the fact that there is an ideological affinity between Putin and Trump that leads them to praise and to mutually support each other. Putin cracks down on political opposition and intimidates or closes down independent media, and Trump praises Putin as a “strong” and “effective” leader. Trump declares that he will “make American great again” by closing borders and deporting “undesirable aliens” and by denouncing and taming the media, and Putin talks favorably about Trump’s boldness and his vision (“It’s not our job to judge his qualities, that’s a job for American voters, but he’s the absolute leader in the presidential race”) and proceeds to denounce Trump’s political and journalistic critics, and embrace the ideological affinities between the new Republican administration and his own regime (“It means that a significant part of the American people have the same perception about how the world should be developing… It is good that people support us in this, in terms of traditional values.”)
While the election of Donald Trump signals a troubling level of Russian investment in domestic US politics, what is most dangerous here is simply the mutual complicity of Trump and Putin, along with a wide range of other nationalist leaders throughout Europe, in a loose transnational movement that is hostile to core elements of liberal democracy. This is not so much a question of “foreign interference” as it is a question of overlapping and mutually reinforcing ideological commitments. The danger here, as Masha Gessen made clear in her widely-discussed essay “Autocracy: Rules for Survival,” is the dismantling of liberal democracy itself. But as Gessen has also insisted, it would be a huge mistake to believe “that Trump is some sort of a foreign agent rather than a home-grown demagogue.” Trump may have been buoyed by Putin. But his ascendancy to the Presidency is the product of America’s dysfunctional political system, and he rose to power with the organized support of millions of Americans who voted for, and thus offered political support to, what he stands for. Trump’s victory was not caused by Putin any more than the rise of Nigel Farage or Marine LePen or Viktor Orban was caused by Putin. In each case, it is a particular liberal democracy and its deficiencies that has been placed into question by the rise of anti-liberal forces, even if it is of course true that the states in question are part of a broader world and that their EU connections are particularly important. And in each case, it is the organized activity of domestic citizen groups and political parties that will be the first line of defense against such authoritarian leaders.”
When I wrote that piece Michael Flynn had just commenced his ill-fated tenure as Director of the National Security Council; Steve Bannon had not yet been appointed to his ill-fated term as a member of the NSC; James Comey was jauntily continuing his service as Director of the FBI (he was not fired until May 9); and Robert Mueller was a retired public servant and partner at the WilmerHale Washington, DC-based law firm, best known to the broad public, to the extent that he was known at all, as the chief of the independent investigation of the NFL’s conduct of domestic assault allegations in the wake of the Ray Rice scandal.
A lot has happened since. And now, less than two years since Mueller was appointed Special Prosecutor by the Justice Department in May of 2017, the long-awaited “Mueller Report,” billed by some pundits as one of the most important legal documents in contemporary American history, has been completed and delivered to Attorney General William Barr.
And at 4 pm Sunday, Barr released a four-page letter to key Congressional committees summarizing the findings of the Report. Legal scholars and political commentators will be discussing the letter for many weeks to come. Its two key claims are clear: (1) Mueller did not find any evidence that the Trump campaign “conspired or coordinated with the Russian government in its election interference activities,” and (2) while Mueller furnished extensive evidence of possible obstruction of justice, and he did not draw a conclusion about whether or not Trump committed obstruction of justice, Barr interprets the evidence in the Report as demonstrating that there was no obstruction.
William Barr has spoken. His letter quotes in a few places from the Mueller Report. But the Report remains a secret to us all. And while Barr promises that in time he will release what seems appropriate to Congress and the public, he also indicates that this might take time. In the interim Barr’s words are already reverberating. And questions swirl, and will continue to swirl, until they are answered.
It is disorienting and indeed shocking to imagine that the Report contains nothing implicating Trump and his campaign in wrong-doing, given how much is already known about the links between the campaign and Russia and about the ways in which Trump has repeatedly obstructed justice — and quite manifestly impaired it, legal definition of “obstruction” aside — as the investigation has unfolded. There are some real ambiguities in Barr’s letter, especially about the latter. It is striking that Mueller, after two years of investigation in the face of Trump’s often very public efforts to frustrate the investigation and to harangue and discourage witnesses from cooperating, refrained from coming to a conclusion about obstruction. Given the speed with which Barr decided as he did, these ambiguities are glaring, and demand explanation and clarification.
And it is terrifying to think about the ways that the Report’s conclusions, or inconclusiveness, or even seeming inconclusiveness, will now be distorted and instrumentalized to further mobilize Trump’s base and to strengthen his chances of reelection in 2020. Trump is already exulting about his “exoneration,” claiming that the investigation was “an illegal takedown” that began before he took office, and threateningly calling for further investigation of the investigators. Republican leaders are already renewing their calls for investigation into the investigation itself. Whatever the Report’s actual language, Trump will surely double down on his rhetoric about “deep state” hostility to his administration and to him — and thus to “The American People” for, as we will recall, from the start Trump has claimed that he and he alone stands between Americans and “carnage” within and “dangerous” Mexicans and Muslims from without.
All the same, the Mueller investigation has always been more important in a political than in a narrowly legal sense. Or, to be more precise, has been important politically as one enactment, among many, of the rule of law and the principle of legal accountability of public officials, including the President, to the law and to the Constitution. It has been important in this constitutional sense precisely by remaining firmly within a narrow legal limit, and by doing everything possible to respect and to exemplify due process of law. But it has never been the be-all and end-all of constitutional checks, and political checks, on the President. And it surely has never been the foundation of political opposition to Trumpism and all that Trumpism represents.
In the first instance the Mueller Report, and the entire investigative and legal process that produced it, is one “outcome” in a much broader process of Constitutionally-based legal challenges to Trump. These include other criminal investigations being conducted by U.S. attorneys and by a number of state prosecutors as well. Every one of these investigations presents the possibility, but not the guarantee, of indictments of key Trump associates or family members and even of Trump himself. In each case it is the prima facie evidence of criminal wrong-doing that grounds the investigation, and it is the possibility of criminal prosecution and conviction that justifies the investigation. At the same time, each investigation has a broader public-political effect, shining light on the questionable and disturbing activities of the Trump coterie in the period leading up to Trump’s assumption of the Presidency and in the period since.
The Mueller Report has understandably been at the center of media and public attention for the past two years. There is an obvious and entirely justifiable public clamoring for its release that has indeed been endorsed by a surprisingly unanimous and bipartisan vote in the House (it will be interesting to see whether Trump’s supporters continue to support release; if they do, it will surely be linked to their desire to attack “deep state”). John Nichols articulates this demand perfectly in his recent Nation piece: “Release the Mueller Report–Immediately and Completely: If we want the truth, then we must have transparency.” Given the very real questions about the Report—how and why its conclusions about “coordination” were reached without actual testimony from key people such as Trump, Sr., Trump, Jr., and Kushner, what to make about some of the obvious contacts between campaign operatives and Russia, and especially how and why Trump’s many obviously obstructive maneuvers do not constitute “obstruction”—it is imperative that the Report be released, and soon. And if it is not, there will surely be a legal battle.
At the same time, as Georgetown Law Professor Marty Lederman made clear in a terrific recent piece in Just Security, as important as is the Mueller Report, perhaps even more important are other “reports” that must accompany it, especially: (1) Attorney General William Barr’s legally-required memorandum to the House and Senate Judiciary Committees; and (2) Barr’s legally-required briefing to the House and Senate Intelligence Committees on the counterintelligence aspects of the Mueller investigation. The first report is now public. And while it issues a very clear “verdict,” it also raises a host of questions about aspects of the verdict, and about its author—William Barr, the man Trump only recently made his Attorney General after he had very publicly explained that he did not really believe that a President could obstruct justice. The second report will never be made public. But we can now be certain that Barr will be called to testify by a number of House committees, and he will have many questions to answer.
All of these reports will feed into, and further empower, a range of investigations recently commenced by the House Democratic majority. There are at least ten House committee investigations currently under way: Intelligence (chaired by Adam Schiff), Oversight (Elijah Cummings), Judiciary (Jerry Nadler), Ways and Means (Richard Neal), Financial Services (Maxine Waters), Foreign Affairs (Eliot Engel), Energy and Commerce (Frank Pallone), Natural Resources (Raul Grijalva), Veterans’ Affairs (Mark Takano), and Science, Space and Technology (Eddie Bernice Johnson). Many of these investigations are closely linked to the themes of the Mueller investigation — foreign ties, corruption, and obstruction related to Trump’s 2016 campaign. But most of them relate to a wide range of other ways that the Trump administration has been corrupt or derelict in its enforcement of the law in a variety of domains, from climate and environmental policy to immigration policy to veterans’ affairs to government contracts and the Constitution’s emolument clause.
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It is here, through the Constitutionally-mandated and entirely legitimate oversight activities of Congress—activities shamefully obstructed by House Republicans for Trump’s first two years in office—that the real constitutional checking, and limiting, of the Trump administration will take place. And we have always known this, and have known that it is politics. Indeed, hardball. And while impeachment is one possible outcome, it is the broader process of public inquiry, public hearings, and public contestation, that will ultimately determine whether Trump will be held to account.
Impeachment originates in the House. And while criminal investigations such as Mueller’s are obviously supremely relevant to the possibility of impeachment, impeachment itself is not a criminal but a political process, in which the House — and not a Special Counselor—serves, as it were, as prosecutor, and the Senate as jury. This is a supremely political process, in at least three interrelated ways: (1) the “high crimes and misdemeanors” prescribed by the Constitution as a basis for impeachment involve judgments about political malfeasance in office sufficient to justify removal from office, rather than judgments about individual violations of criminal law; (2) a House decision to impeach a President involves political judgments not simply about Presidential performance in office, but the costs and benefits of “prosecuting” malfeasance in a situation where it is the Senate that will decide on a “verdict” (in the current situation, it is virtually certain that the Republican-controlled Senate will never vote to remove Trump from office, and such a calculation must figure in House decision-making about impeachment); and (3) the entire process takes place amidst a broader political process, setting in motion consequences, some of which can be predicted and others not, potentially energizing and mobilizing opponents of the President but also supporters of the President, thus playing a role in ongoing House, Senate, and Presidential campaigns in the lead-up to the 2020 elections.
Precisely because impeachment is a supremely political process, it is a process that House Democratic leaders have been loath to embrace, and for a simple reason: if one proceeds on the assumption that Trump’s performance has been profoundly malfeasant, and Trump represents a danger to the republic, then removing him from office by constitutional means becomes the imperative. And the question of which means becomes subordinate to the question of this end. If impeachment is one constitutional means of removal, election is a much less costly and thus more broadly “legitimate” means. And what sense does it make to undertake a contentious impeachment process if the almost-certain result will be an “acquittal” by Senate Republicans that can be exploited in November 2020, especially when such a process is likely to raise unrealistic expectations among the Democratic base, and also to distract attention from other issues more important to this base?
Impeachment, then, is an unlikely outcome, unless there are revelations so explosive that they can generate some combination of widespread public outrage and substantial Senate Republican defection from Trump. At the same time, investigations that highlight corruption and malfeasance are a necessary outcome that has indeed already commenced. And the purpose of such investigations is the kind of “public enlightenment” that can play a hugely important role in the broader public discussion—which of course includes all forms of rhetorical posturing, advertising, and electioneering—leading up to the 2020 elections.
David Remnick’s recent New Yorker piece is entirely correct: in the months to come political contention surrounding the Mueller Report will continue; Trump will continue to be Trump; and the most important political action will take place in the debating and campaigning that leads up to the November 2020 election. As Remnick summarizes:
“The emergency that the Trump Presidency represents leaves the Democratic Party’s cast of candidates with a singular responsibility — to win the election — and two colossal reclamation projects. The first involves the environment. Presidential debates in past elections have largely ignored the costs of climate change. But public opinion on the topic is moving, and there is cause for at least some political optimism in the fact that many Democrats have gotten behind the idea of a New Deal-scale effort to address the issue. Candidates who can best give shape to that impulse and find a plausible way to make it a legislative reality deserve the most urgent attention.
The second reclamation concerns Trumpism. Somehow, sometime, Trump will leave the political stage; but the moral and material corruption he has inflicted will be with us for a long while. Who has the vision and the language to confront xenophobia and white-supremacist ideology? Who has the dexterity and the pragmatism to enact reforms on voting rights, health care, immigration, mass incarceration, and campaign finance, and so strengthen a stressed democracy? Who has the political acumen to argue for policies adequate to resolve our crises and, at the same time, to win back the millions of voters who cast a ballot for Barack Obama and then shifted to Trump?”
It is obvious that Democrats should not hang everything on the corruption and illegality of the Trump administration. It is very important to advance a strong platform with compelling policies on health care, the environment, the economy, criminal justice, reproductive freedom, and immigration. All of these issues matter, and they probably matter more, to most voters, than the procedural malfeasance of Trump.
At the same time, the procedural malfeasance of Trump is very real, and it is unavoidably at the center of the political agenda and of the business of the House. And while we might think of it as a “procedural” rather than a “substantive” policy issue, in fact no “issue” is any one thing, and all “issues” are what they are in large part because of the way they are framed. And it makes perfect sense to frame Trump’s dangerousness as both procedural and substantive. Just as it would be a huge mistake to ignore the themes noted above, it would be just as serious a mistake to ignore the fact that all of them have to do with the need to defend democracy from Trump’s autocratic and corrupt tendencies, and to deepen democracy so that something like Trumpism becomes less likely in the future.
In this sense, the defense and the democratization of our very flawed and fragile liberal democracy is a central concern at the heart of the entire Mueller affair that should remain a central theme of Democratic political contestation in the months to come.
It is notable, and warrants relentless attention in the coming weeks and months, that the first legislation passed by the new Democratic House majority is H.R. 1, the “For the People Act of 2019,” which was passed on March 8 by a straight party-line vote of 234-193. The Act has been almost universally embraced by Democrats and people on the left. And it has been reviled by most Republicans, Mitch McConnell having gone so far as to explain his refusal to allow the bill to reach the Senate floor by describing it as a “power grab” and “a naked attempt to change the rules of American politics to benefit one party. It should be called the Democratic Politician Protection Act.”
McConnell is right about one thing: H.R. 1 is definitely partisan, as the House vote indicates.
But, as E.J. Dionne, among many, has explained, far from representing an authoritarian partisan maneuver, the Act centers on voting rights, campaign finance, and public ethics reforms designed to repair our democracy after Trump. Alas, only one party currently supports any kind of repair of our democracy: the Democrats.
Such repair is not only about Trump and it is surely not only about “procedure.”
For the disenfranchisement and exclusion of poor and minority voters, the drowning out of vigorous debate by the unregulated flow of “soft money,” and the frustration of democratic demands by the insulation of public business from public scrutiny — these are precisely what limits public policy, and generates much of the dissatisfaction that leads many to support Trump and his Republican enablers. In the same way, opening up the political system to a wider range of voters, voices, constituencies, and ideas, is what can make possible a wider range of policy options — a point powerfully developed by Michael Tomasky in his new book, If We Can Keep It: How The Republic Collapsed and How it Might Be Saved.
We will soon know more about the Mueller Report. And some combination of legal and political proceedings will continue to unfold in connection with the Report. And every issue raised by the Report, and by the arguments it generates, will be about the authoritarian and kleptocratic dimensions of Trump’s Presidency, but also about the democratic values that condemn such kleptocratic authoritarianism, and the democratizing reforms of political process and public policy that might move us forward, beyond Trump and Trumpism and towards a more just, decent, and democratic society.
This was never on Mueller. It has always been on us. And it is on us still.