President Trump is using an interesting strategy. Interesting, not novel. It is the same “scandalize the prosecutor” strategy that the Clinton camp used against Ken Starr in the 1990s. Far from being condemned back then, it was aided and abetted by the same media-Democrat complex that today clutches its pearls in anguish.
One aspect of this strategy has many legal commentators aghast: the bombastic performance of my old boss, Rudy Giuliani. He has always been brash, but in the role of Trump’s lead lawyer, he no longer seems like the meticulous pro of yesteryear. Thus, he’s been lampooned: a cartoonish figure who can’t keep his story straight. But have you seen the approval polls of the Russia investigation since he took over the president’s defense team? Special Counsel Robert Mueller’s probe is now viewed unfavorably by 45 percent of Americans, according to a recent Washington Post/George Mason University poll. That’s up markedly from 31 percent at the start of the year.
We’ll come back to that in a second.
First, let’s assess the latest iteration of this strategy: President Trump’s tweet storm on Wednesday. Clearly, all the tweets (seven in total) had one objective: to attack the Mueller probe. But we must split them into two groups because their ramifications are different. Group 1 (the first three tweets and the last one) presents a full frontal assault on Mueller and his staff, with a sideswipe at Attorney General Jeff Sessions’s recusal, which paved the way for the special counsel’s appointment and remains a stone in the president’s shoe. Group 2 (here, here, and here) addresses Mueller’s prosecution of Paul Manafort, in which a trial is underway in a Virginia federal court.
Group 1: The Mueller Tweets
Posing as rabid commentator @realDonaldTrump, rather than acting as duly elected chief executive, the president first quoted Harvard’s Alan Dershowitz for the proposition that many of Mueller’s investigators harbor anti-Trump bias, which Mueller will conceal in his anticipated final report because he has “an interest in creating the illusion of objectivity around his investigation.” (Professor Dershowitz, a liberal Democrat and renowned civil libertarian, is a valuable ally for the president, having just published a book called The Case against Impeaching Trump, on the heels of last year’s Trumped Up: How Criminalization of Political Differences Endangers Democracy.)
From this launching point, the president then rebuked his attorney general, exhorting that Sessions
should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 angry Democrats that are doing his dirty work are a disgrace to USA!
That should sure get any Trump–Mueller sit-down interview off to a warm and fuzzy start, no?
When you read such Twitter tirades, be mindful that we are not dealing with a normal criminal probe.
The final tweet in this series may tell us what so set @realDonaldTrump off. The president groused about the anomaly of the special counsel’s keen interest in the Trump campaign’s meeting with “the Russians” at the latter’s request, while ignoring Hillary Clinton’s “proactively seek[ing] dirt from the Russians.” The point is to soft-pedal the June 9, 2016, Trump Tower meeting that Donald Trump Jr., at the suggestion of Putin crony Aras Agalarov, convened with Kremlin-connected lawyer Natalia Veselnitskaya in the hopes of obtaining campaign dirt on Mrs. Clinton. In the president’s telling, that bonehead play pales in comparison with the Clinton campaign’s retention (through intermediaries) of a foreign former spy, Christopher Steele, to pry campaign dirt on Trump from Russian sources — the resulting salacious, unverified dossier having later been used by the FBI to obtain FISA warrants to spy on Trump’s campaign. If I may speculate, what has the president ballistic is Mueller’s focus on a transaction in which Don Jr. is a central player. It is an article of faith in Trump World that Mueller used the specter of charging Michael Flynn’s son to pressure Trump’s former national-security adviser into a bogus false-statements guilty plea.
Impeachment vs. Indictment
In any event, when you read such Twitter tirades, be mindful that we are not dealing with a normal criminal probe. Usually, if there is a realistic chance to avoid being indicted, the subject of an investigation has great incentive to cooperate with, or at least avoid antagonizing, the prosecutor. Here, in stark contrast, the president is not going to be criminally charged. Quite apart from the lack of sufficient evidence, Justice Department policy forbids the indictment of a sitting president. To the extent the investigation bears on Trump, it has always been about impeachment, not criminal liability.
As we have recently rehearsed, and as I explained in Faithless Execution, impeachment is a political process, not a legal one. It is committed to the Article I political branch alone: The House impeaches the president, the Senate holds a trial to decide whether he is removed from office, and there is no judicial review. The House has wide latitude to determine what impeachable offenses are. We can hope our representatives honor the Framers’ concept of “high crimes and misdemeanors,” but they cannot be forced to do so. Moreover, while the chief justice of the Supreme Court presides over any impeachment trial, that is largely ceremonial. (The arrangement avoids having the Senate’s president, the vice president, preside.) It is the Senate that determines what trial procedures to follow. Critically, our constitutional design makes impeachment incredibly difficult, requiring a two-thirds’ Senate supermajority vote for conviction and removal. Only two presidents, Andrew Johnson and Bill Clinton, have ever been impeached. No president has been removed, although Richard Nixon would likely have been impeached and removed had he not resigned.
If the only things on the table are “collusion with Russia” and obstruction allegations, President Trump knows he will never be removed from office. But he would obviously like to avoid being impeached (i.e., formally accused of high crimes and misdemeanors). It takes only a simple majority vote in the House to approve articles of impeachment. If the Democrats win control in the midterms, that’s a real peril.
This is politics, and Giuliani is acting like a modern, media-manipulating politician.
Because there will be no indictment, the president’s attorneys have the luxury of not fretting over things defense lawyers normally worry about — namely, avoiding statements that prosecutors can use against the client in court. Since impeachment is political, what matters is public opinion — the thing that moves Congress. That’s what Trump and his attorneys are trying to influence. If they succeed well enough, it could help Republicans retain the House in the midterms — i.e., the prospect of an unpopular impeachment would become an electoral liability for Democrats. Even if Democrats take the House by a narrow margin, Trump’s strategy might dissuade the small number of Democrats he would need from jumping aboard an impeachment bandwagon.
Clinton-Starr Meets 21st Century Social Media
Legal-beagle pundits watch Giuliani in mock horror. It is incompetent lawyering, they say, to bloviate, rip the prosecutors, and trip up on basic facts of the case. But Rudy is not worried that the prosecutor may indict the president — ain’t gonna happen. He is trained on doing to Mueller what Clinton’s allies did to Starr. This is politics, and he’s acting like a modern, media-manipulating politician.
And it’s working. In part, that is because we are in a new social-media age. Bill Clinton did not have Twitter. Even if he’d had it, he wouldn’t have used it as Trump does — imagine trying to tell the current president that he shouldn’t say something until they poll-tested it! But Giuliani has more than Trump’s 21st-century bully pulpit in his arsenal.
The Clinton people worked tirelessly (and quite successfully) to portray the Starr investigation as obsessed with extramarital sex that had nothing to do with the core responsibilities of the presidency. Of course, they did their utmost to slander Judge Starr, but he was the most solid of citizens. It was the tawdry subject matter of the investigation that best lent itself to caricaturing the prosecutor.
Mueller is also a solid citizen, but the genesis and staffing of his investigation are suspect. The special-counsel appointment was spurred by just-fired FBI director James Comey’s leak to the New York Times of a memo about a February 14, 2017, meeting in which he alleged that Trump leaned on him to go easy on Flynn (although Comey did not claim to have been obstructed at the time, and two months later testified that he had never in his career been politically pressured to drop an investigation). Deputy Attorney General Rod Rosenstein responded to Democratic uproar over Comey’s firing and leaked memo by appointing Comey’s longtime colleague, Mueller, as special counsel — the very outcome Comey said he had been trying to provoke.
The rash appointment was outside the special-counsel regulations: It increasingly appears that there was no factual basis for a criminal investigation of Trump, which is why a counterintelligence pretext was used. And Trump aside, there was no conflict of interest that would have prevented the Justice Department from investigating and prosecuting the cases Mueller has charged (which is why Mueller is now quietly transitioning them to other DOJ components).
Mueller’s dubious appointment was compounded by his astonishing tin ear in recruiting investigators. Trump’s talking point about “17 angry Democrats” (up from 13!) is hyperbole. Yet the special counsel did bring aboard the now-infamous pair of FBI officials — agent Peter Strzok and counsel Lisa Page — whose loathing of Trump was hardly a state secret. And not only are many of the lawyers he recruited partisan Democrats; several worked for the Obama Justice Department when it began investigating the Trump campaign. Mueller tabbed as his deputy Andrew Weissmann, a former top Obama DOJ official with a reputation for bending rules, who attended Hillary Clinton’s campaign “victory” party and later gushed, “I am so proud. And in awe. Thank you so much,” in praise of acting Attorney General (and Obama holdover) Sally Yates when she insubordinately defied President Trump’s so-called travel ban. (And Sessions is the one with the conflict?)
Add to that: The cases Mueller has brought against Trump associates have nothing to do with a Russian espionage attack on the 2016 election, while the cases he has brought against Russians engaged in an espionage attack on the 2016 election have nothing to do with the Trump campaign.
The president cultivates a street-fighter image. He sidelined most of his original legal team, who were of the traditional “cooperate with the prosecutor to get this over with” mindset, because he wanted a street-fighter lawyer. Rudy, his longtime friend and confidant, is that guy. For Trump and Giuliani, Mueller’s investigation is too target-rich to pass up.
The strategy may be effective, but it is also cynical and messy. The president, who has the power to relieve Mueller at any time, instead tweets that Sessions should do the firing. That makes a mess because Sessions, like it or not, is recused and has publicly explained that he is conflicted. Knowing this, Giuliani went into damage-control mode — which, back in the day, was the default setting for Bill Clinton allies, too.
Focusing on @realDonaldTrump’s use of the word “should” in suggesting that Sessions cashier Mueller, Rudy said the president was just “expressing his opinion.” C’mon, now. When the chief executive tells a subordinate officer what he “should” do, that is more than expressing an opinion; reasonable people — particularly old-school types who will never get used to a president who often does not mean what he says — could certainly infer that this is an order. You would think the president would get that by now: For a year, he has been under an obstruction cloud over “expressing his opinion” that Comey should lay off Flynn. It does not amount to actionable obstruction, but it’s an unforced error. Sessions, whom the president blames for his troubles, will help the boss out by following Comey’s lead and not taking the implied order seriously.
Maybe that’s winning, but it’s winning ugly.
Of course, it was not meant seriously — just wistfully. President Trump wants Mueller gone, but he does not want the political tumult that relieving Mueller would cause. Of course, if a president opts not to dismiss an inferior executive officer, the honorable thing would be to let him do his job. But that is not how an all-id-all-the-time POTUS rolls. Instead, he dons his @realDonaldTrump persona and carps at the special counsel from the cheap seats. If the president really believes the Mueller investigation is a travesty of historic proportions, he should muster up the courage to end it, as he could do with the stroke of a pen. But he won’t. The alternative plan is to drive down Mueller’s poll numbers. That effort, as surmised above, is bound to get more edgy if Don Jr.’s Trump Tower meeting remains a Mueller curiosity.
It is fair game to question the underpinnings of the investigation and the prosecutor’s judgment about staffing and tactics. The character assassination of the special counsel, however, is as unsavory today as it was in the Clinton era. We can disagree with a lot of Bob Mueller’s judgment calls while remaining mindful that he is an American patriot, a man who ran to the sound of the guns in Vietnam when most Ivy League grads were running to white-shoe law firms and Wall Street. To see the president tweeting darts at him and bouquets to Kim Jong-un in the space of a few hours is jarring.
Furthermore, as I have cautioned a number of my friends, if Mueller is bent on trumping up a case against the president, how come he hasn’t done it yet? How come the charges he has filed do not even hint at Trump-campaign participation in Russia’s perfidy? That’s a lot of witch-hunting to turn up no witch. And if you think Mueller is just waiting until he can convict Manafort and then squeeze the grand collusion scheme out of him, bear in mind that the special counsel has had Manafort’s partner and accomplice as a cooperator for six months. Do you think there are things Manafort knows about Trump/Russia that Rick Gates doesn’t? I don’t.
The fact the Clinton playbook works does not commend it. In Trump’s case, there are also practical reasons why its use is wrongheaded. By discrediting Mueller, the Trump team is devaluing the president’s eventual exoneration on the Russia allegations. Simultaneously, the administration is making it more likely that Mueller’s final report will be scathing in its assessment of, for example, the president’s (a) faulty judgment in recruiting into his campaign unsavory characters with Russian-regime links,and (b) faulty, though not actionable, judgment in both weighing in on the Flynn investigation and positing contradictory explanations for firing FBI director Comey.
Still, regardless of what one thinks of the president’s tweets against the Mueller investigation, there is method in the madness. And whether you think disapproval of the Mueller investigation has risen because of Trump’s onslaught or because there’s no there there, the point is that it has risen. That makes impeachment less likely than ever. Maybe that’s winning, but it’s winning ugly.
Group 2: The Manafort Trial Tweets
The president’s three tweets about Paul Manafort were obviously intended as a continuation of his attack on Mueller, just from a different angle.
Trump knows his decision to put Manafort in charge of his campaign, even for a short time, is a vulnerability. So, he began by pointing out that Manafort had worked for such Republican eminences as Ronald Reagan and Bob Dole. The suggestion is that, despite Manafort’s well-known checkered history, candidate Trump had no reason to suspect he was a bad guy, so why didn’t the Obama Justice Department and FBI warn his campaign that Manafort was under investigation? This was the warm-up for another diatribe about the “TOTAL HOAX” — the suspicion that his campaign “colluded” in Russia’s hacking, based on the “phony and discredited [Steele] Dossier,” which the president’s FBI tormentors (“Comey, McCabe, Strzok and his lover, the lovely Lisa Page”) used “to begin the Witch Hunt. Disgraceful.”
If he had left it at that, it would have been bad but, comparatively speaking, not worth much analysis. Alas, the president was not finished. He went on to say:
Looking back on history, who was treated worse, Alfonse Capone, legendary mob boss, killer and “Public Enemy Number One,” or Paul Manafort, political operative and Reagan/Dole darling, now serving solitary confinement — although convicted of nothing? Where is the Russian Collusion?
This is inexcusable. Fulminating over a special-counsel investigation he hates but feels powerless to halt, the president may figure he was just lashing out, again, at Mueller. But he did it by commenting on Manafort at the very moment when there is a judicial proceeding underway.
Manafort is on trial before a Virginia federal court, where 16 Americans – twelve jurors and four alternates – have put their lives on hold to perform their civic duty, taking a solemn oath to decide the case based solely on the evidence presented in the courtroom, not the noise outside of it. And to what ought to be the president’s delight, the presiding judge, T. S. Ellis, has given Mueller’s prosecutors a very hard time about both their motivation for indicting Manafort (to squeeze him for incriminating information on the president) and their prejudicial approach to proving the case (as if it were a crime to have lots of money and spend lavishly).
Why would the president make Judge Ellis’s job harder? He is not laying a glove on Mueller here; he is showing disrespect to the court, the jury, and the process.
Presidents don’t get to ‘express their opinions’ about ongoing criminal trials.
The president’s harmful commentary about pending cases is nothing new. We took chagrined notice of it when his ill-advised snipes at Bowe Bergdahl raised an “improper command influence” issue that resulted in the deserter’s getting a slap-on-the-wrist sentence; when his harping on how West Side Highway jihadist Sayfullo Saipov deserved the death penalty made it harder for prosecutors to seek capital punishment; and when his public assertion that former Obama national-security adviser Susan Rice had committed a crime by “unmasking” American identities in foreign intelligence reporting complicated any investigation of officials implicated in that highly suspicious activity.
Even when he is performing as @realDonaldTrump, the president of the United States has a duty to uphold the integrity of federal investigations and criminal trials. If he truly believes that Manafort is being railroaded, he should man up, pardon him, and take the political fallout. Since the president has not done that, he has an obligation not to undermine the judge’s effort to conduct a fair trial and to insulate the jury from outside publicity — of which there has now been a torrent thanks to the tweet storm.
President Trump claims that, because of the Mueller investigation, he has taken a hands-off approach to the Justice Department to avoid further obstruction allegations. He is kidding himself if he thinks that means he can freely comment on pending cases as @realDonaldTrump, an uninvolved spectator. He is the president of the United States, responsible for his Justice Department’s prosecutions.
Presidents don’t get to “express their opinions” about ongoing criminal trials. This is not a First Amendment issue. When you assume public office, you voluntarily take on fiduciary duties that limit your free-speech rights. The prosecutors who work in the Trump Justice Department would be held in contempt of court if they publicly vented about defendants on trial.
This is not a game. A fair trial is a constitutional guarantee. The president’s oath summons him to preserve, protect, and defend it.