Evidence of Trump's Obstruction in the Mueller Report

Writing for Lawfare blog, Quinta Jurecic published a great analysis of evidence of President Trump's obstruction of justice in the Mueller report. The analysis looks to be sufficient to support at least indictment of Trump for obstruction of justice on four different occasions. Since impeachment is a political process, not a legal process, the level of evidence needed is possibly lower. Here's Jurecic's analysis:




Ms. Jurecic writes on Trump's effort to fire Mueller, item E in the table above:

Obstructive act (p. 87): Former White House Counsel Don McGahn is a “credible witness” in providing evidence that Trump indeed attempted to fire Mueller. This “would qualify as an obstructive act” if the firing “would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.”

Nexus (p. 89): “Substantial evidence” indicates that, at this point, Trump was aware that “his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”

Intent (p. 89): “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct[.]”

She also points to a similar analysis by another expert another legal expert, Richard Hoeg.



If these analyses are reasonably reliable, Trump actually tried to obstruct justice on multiple occasions. Only the adults in the room, e.g., his counsel Don McGahn, kept him from stopping Mueller's investigation.

B&B orig: 5/22/19

An Explanation: Constitutional Crisis vs. Constitutional Rot

Uncle Fester: Dementia, what a beautiful name. 
Dementia: It means "insanity." 
Uncle Fester: My name is Fester. It means "to rot."

Constitutional scholar Jack Balkin (Professor, Yale Law School) wrote a short chapter for the 2018 book Constitutional Democracy in Crisis?, edited by Mark A, Graber et al. Balkin's chapter 2, Constitutional Crisis and Constitutional Rot, explains the difference between the two concepts. The topic is timely because many people are concerned that the US is in or near a constitutional crisis in view of President Trump's divisive rhetoric and actions. Constitutional rot is a concept that most people are not aware of, while constitutional crisis is mostly misunderstood. Knowing the difference helps put America's political situation in much better context.

Constitutional crisis defined: Balkin and another scholar Sanford Levinson, have described what a constitutional crisis (CC) is and is not in a constitutional democracy. That is summarized in Balkin's chapter 2. There are three different kinds of CC. The Type One CC occurs when politicians and/or military officials announce they will not obey the constitution any more. That can happen when politicians and/or military officials refuse to obey a court order. Once refusal to adhere to constitutional rules has occurred, the constitution has failed.

The Type Two CC occurs when the constitution prevents political actors from trying to prevent an impending disaster. This is rare because the courts tend to find ways to allow political actors to avoid disasters. The Type Three CC occurs when many people refuse to obey the constitution. In these scenarios, there can be street riots, or, states or regions try to secede from the nation. This involves "situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail."

Balkin goes on to argue that most time when the term CC is used, it is hyperbole. Constitutions rarely break down.

Constitutional rot (CR): By contrast with a CC, CR arises when norms that held power in check fall, partisans play constitutional hardball and fair political competition comes under attack. We are seeing this now. For example, it was constitutional hardball by the Mitch McConnell to ignore President Obama's Supreme Court nomination of Merrick Garland. In CR, politicians favor short-term political gains over long-term damage to the constitutional system. As CR progresses, the political system becomes less democratic. State power becomes less accountable and less responsive to the public, while politicians become more beholden to backers who keep them in power. In essence, the country drifts into oligarchy.

While that is happening, the public loses trust in government and the political system because they have been abandoned: "When constitutional rot becomes advanced, and the public's trust in government is thoroughly undermined, people turn to demagogues who flatter the public and who stoke division, anger and resentment. Demagogues promise they will restore lost glories and make everything right again. They divert the public's attention to enemies and scapegoats within and without the republic. They divide the public in order to conquer it. They play on people's fears of loss of status. They use divisive rhetoric to distract attention, maintain a loyal set of followers, and keep themselves in power. There are always potential demagogues in a republic, but healthy republics restrain their emergence and ascension. When demagogues manage to take power and lead the nation, however, CR has become serious indeed."

Does any of that sound familiar?

The four horsemen of CR: Belkin describes the four horsemen of CR as (1) loss of trust in government and fellow citizens, (2) polarization that leads to people seeing fellow citizens as enemies of the state, (3) increasing economic inequality which foments anger, resentment and a search for scapegoats, and (4) policy disasters such as the Iraq war and the 2008 financial crisis, which undermine public trust in political leadership and constitutional governance. He argues that each one of these tends to feed into the one or more of the other factors. For example, polarization deflects public attention to symbolic and zero-sum conflicts, which allows wealthy interests to entrench their power and foster oligarchy. In turn, that tends to undermine public faith in a government that is drifting away from them and their interests. Rot begets more rot.

Belkin sees hardball politics and attendant destruction of norms of fair politics as leading to "a gradual descent into authoritarian or autocratic politics."

Regarding our current situation, Belkin sees it like this: "The United States is not currently in a period of constitutional crisis. But for some time--at least since the 1990s--it has been in a period of increasing constitutional rot. The election of a demagogue such as Trump is further evidence that our institutions have decayed, and judging by his presidential campaign and his first year in office, Trump promises to accelerate the corruption."

Sounds definitely like we're in for more CR and a descent into authoritarian, autocratic politics. How gradual the process may be is a matter open for debate.

B&B orig: 5/24/19

Trump Threatens Journalism

The New York Times reports that new charges the Department of Justice has filed against Julian Assange verge on making it illegal for journalists to gather information for news stories. The NYT writes:

Journalists and press freedom groups reacted with alarm on Thursday after the Trump administration announced new charges against Julian Assange, the WikiLeaks leader, for publishing classified information, in a case that legal experts say takes direct aim at previously sacrosanct protections for the news media.

In indicting Mr. Assange for obtaining, accepting and disseminating classified materials, the Department of Justice opened a new front in its campaign against illegal leaks. While past cases involved government employees who provided material to journalists, the Assange indictment could amount to the pursuit of a publisher for making that material available to the public.

“It’s not criminal to encourage someone to leak classified information to you as a journalist — that’s called news gathering, and there are First Amendment protections for news gathering,” said Theodore J. Boutrous Jr., a lawyer who frequently represents media organizations like CNN. “The ramifications of this are so potentially dangerous and serious for the ability of journalists to gather and disseminate information that the American people have a right to know.”

The charges against Mr. Assange are likely to face a challenge on First Amendment grounds. And journalists’ use of illegally obtained materials has been upheld in Supreme Court cases. But Mr. Miller said prosecutors had now skated to the edge of criminalizing journalistic practices.

“The Espionage Act doesn’t make any distinction between journalists and nonjournalists,” Mr. Miller said, referring to the law that Mr. Assange is accused of violating. “If you can charge Julian Assange under the law with publishing classified information, there is nothing under the law that prevents the Justice Department from charging a journalist.”

“The calculation by the Department of Justice is that here’s someone who people don’t like,” Mr. Boutrous said. “There’s a real element of picking the weakest of the herd, or the most unpopular figure, to try to blunt the outcry.”

Given the obvious run at some form of tyranny-oligarchy that President Trump is making, and his openly expressed hate toward the free press, this is reasonably seen as a direct attack on the press. Trump and the GOP can reasonably be seen as against free speech for the press, but unlimited speech, especially dark free speech***, for themselves.

*** Dark free speech: lies, deceit, unwarranted opacity to hide corruption, relevant truths and facts, unwarranted emotional manipulation to foment irrational, reason-killing emotions, including fear, hate, anger, disgust, distrust, intolerance, and all kinds of bigotry including racism

B&B orig: 5/24/19

Dark Free Speech, Censorship and the 1st Amendment

“In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true. ... Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.” Hannah Arendt, The Origins of Totalitarianism, 1951

“. . . . the typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his real interests. . . . cherished ideas and judgments we bring to politics are stereotypes and simplifications with little room for adjustment as the facts change. . . . . the real environment is altogether too big, too complex, and too fleeting for direct acquaintance. We are not equipped to deal with so much subtlety, so much variety, so many permutations and combinations. Although we have to act in that environment, we have to reconstruct it on a simpler model before we can manage it.” Christopher Achen and Larry Bartels, Democracy for Realists, 2016

Dark free speech: Constitutionally protected (1) lies and deceit to distract, confuse and demoralize, (2) unwarranted opacity to hide corruption, and inconvenient truths and facts, and (3) unwarranted emotional manipulation (i) to obscure the truth and blind the mind to lies and deceit, and (ii) to provoke irrational, reason-killing emotions and feelings, including unwarranted fear, hate, anger, disgust, distrust, intolerance, cynicism, pessimism and all kinds of bigotry including racism. -- Germaine, May 2019

This discussion is long, over 1,900 words. It is based on parts of an essay that is over 11,000 words in length. My thanks to PD for bringing this extremely important essay to my attention.

In September of 2017, Tim Wu (Professor, Columbia Law School) asked if the First Amendment (FA) is relevant to modern free political speech: “We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as these efforts mount, and the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question — when it comes to political speech in the twenty-first century, is the First Amendment obsolete?”

Government censorship of free speech: Wu observed that the FA was dormant as a source of law until the 1920s. The FA came to life after the US government mounted a massive propaganda and speech censorship campaign that ran from 1917 until 1919. New Espionage and Sedition Acts were passed into law in 1917 and 1918. That was accompanied by creation of The Committee on Public Information. Woodrow Wilson created this committee by Executive Order 2594. The committee was a major federal propaganda effort with over 150,000 employees. Its goal was to coax Americans into accepting America fighting in World War I. The presidential candidate for the Socialist Party, Eugene Debs, was arrested and imprisoned for a speech that criticized the war effort when he told the crowd that they were “fit for something better than slavery and cannon fodder.”

In response to government crackdown on speech, a few leading jurists led by Justices Oliver Wendell Holmes and Louis Brandeis and Judge Learned Hand began to articulate the contours of modern FA law, which became firmly entrenched by the 1970s. The concern was to limit government’s ability to silence dissidents and their public free speech. Although there were free speech cases on the Supreme Court docket when he wrote his essay, Wu pointed out that none of them had anything to do with government censorship of political free speech in the 1920s when the world was information poor and speakers could be easily targeted and silenced. That concern had passed into history decades before Wu wrote.

Wu argues that “the Amendment has become increasingly irrelevant in its area of historic concern: the coercive control of political speech. . . . . But today, speakers are more like moths — their supply is apparently endless. The massive decline in barriers to publishing makes information abundant, especially when speakers congregate on brightly lit matters of public controversy. The low costs of speaking have, paradoxically, made it easier to weaponize speech as a tool of speech control.” One concern is that existing FA law can be used to block efforts to deal with some of these modern free speech problems.

Modern censorship: Wu writes: “As Zeynep Tufekci puts it, ‘censorship during the Internet era does not operate under the same logic [as] it did under the heyday of print or even broadcast television.’ Instead of targeting speakers directly, it targets listeners or it undermines speakers indirectly. More precisely, emerging techniques of speech control depend on (1) a range of new punishments, like unleashing ‘troll armies’ to abuse the press and other critics, and (2) ‘flooding’ tactics (sometimes called ‘reverse censorship’) that distort or drown out disfavored speech through the creation and dissemination of fake news, the payment of fake commentators, and the deployment of propaganda robots.”

A key point is the understanding of modern propagandists that limited human cognitive capacity is a severe constraint on the power of free speech. What is in critically short supply is human attention. By overwhelming people with an endless torrent of dark free speech. This situation was foreseen by a few people decades ago. Wu quotes one observer who commented in 1971: “in an information-rich world, the wealth of information means a dearth of something else: a scarcity of whatever it is that information consumes. What information consumes is rather obvious: it consumes the attention of its recipients. Hence a wealth of information creates a poverty of attention and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.”

Development of the internet since the 1990s led to a massive decrease to speak online speaker, and it results in an “information flood” of “cheap speech.” Social media platforms now have an extremely important role in the shaping public discourse. Cheap speech also makes it easier for mobs to harass or abuse other speakers with whom they disagree. Wu points out that an “attention industry” now harvests personal information to information buyers. This industry consists of a set of actors whose business model is the resale of information designed to capture as much human attention as possible. These players, which include newspapers and social media platforms, work tirelessly to maximize the time and attention that people spend with them.

How the Russians do censorship: Since the early 2000s, the Russian government has deployed troll armies to deploy a flood of cheap speech against critics of government policy or leaders, especially President Putin. The point is to deploy abusive online mobs to wear down and demoralize targeted speakers either to make them go away, or to bury them in dark free speech. Troll armies include loyalists who get government encouragement, funded groups that pay commentators, and full-time staff that engage in around-the-clock propagation of pro-government views and attacks on critics. These tactics hide the government’s role in the torrent of cheap speech propaganda and attacks. Plausible deniability is always sought. This allows the Russian government to deny any responsibility for censorship or use of dark free speech attacks. Russia’s use of vicious, swarm-like attacks against critics isn’t new, but its coordination and international scope are on a scale previously unseen.

A Soviet-born journalist described Russia’s aggressive propaganda tactics like this: “What happens when a powerful actor systematically abuses freedom of information to spread disinformation? Uses freedom of speech in such a way as to subvert the very possibility of a debate? And does so not merely inside a country, as part of vicious election campaigns, but as part of a transnational military campaign? Since at least 2008, Kremlin military and intelligence thinkers have been talking about information not in the familiar terms of ‘persuasion’, ‘public diplomacy’ or even ‘propaganda’, but in weaponized terms, as a tool to confuse, blackmail, demoralize, subvert and paralyze.”

Wu notes that the Russians also use other dark free speech tactics: “Related to techniques of flooding is the intentional dissemination of so-called ‘fake news’ and the discrediting of mainstream media sources. . . . . In addition to its attacks on regime critics, the Russian web brigade also spreads massive numbers of false stories, often alleging atrocities committed by its targets. While this technique can be accomplished by humans, it is aided and amplified by the increasing use of human-impersonating robots, or “bots,” which relay the messages through millions of fake accounts on social media sites like Twitter.”

Russia and the 2016 US elections: Wu comments that members of the US Senate Select Committee on Intelligence have asserted that a force of over 1,000 paid Russians were assigned to influence the U.S. election in 2016. An unknown number of unpaid propagandists were also involved.

How the Chinese do censorship: Both China and Russia rely heavily on reverse censorship or flooding to control speech. Flooding uses a sufficient volume of dark free speech to drown out disfavored speech and/or to distort the entire information environment. The dissemination of fake news is used to distract and discredit. This technique works as a means of listener-targeted speech control. Although China has embraced the internet, predictions from the West that the flood of information will loosen Chinese Communist Party control. That turned out to be a false prediction. Communist Party control has increased, not decreased.

Western Researchers found that up to two million people are paid to post on behalf of the Chinese Communist Party. They comment: “The government fabricates and posts about 448 million social media comments a year. In contrast to prior claims, we show that the Chinese regime’s strategy is to avoid arguing with skeptics of the party and the government, and to not even discuss controversial issues. We show that the goal of this massive secretive operation is instead to distract the public and change the subject, as most of these posts involve cheerleading for China, the revolutionary history of the Communist Party, or other symbols of the regime.”

The Chinese government understands that not arguing with criticism, but instead deflecting, distracting and ignoring it is a more effective form of speech control. Wu comments: “When listeners have highly limited bandwidth to devote to any given issue, they will rarely dig deeply, and they are less likely to hear dissenting opinions. In such an environment, flooding can be just as effective as more traditional forms of censorship.” (See the quote by Achen and Bartels at the beginning of this discussion)

Given the sophistication and persuasive power of dark free speech and modern cheap speech tactics in all forms of information media, one can begin to see how First Amendment law is weak in the face of the onslaught. America’s enemies are fully aware of our structural weakness to dark free speech and they are exploiting it to their maximum advantage. The damage that causes to American society and the public interest in unknowable with precision, but it is reasonable to think it is big enough to possibly constitute an existential threat to American liberal democracy. Disturbingly, American populism and conservatism appears to have been especially seduced by the relentless flood of foreign and domestic propaganda. That is polarizing American society. In turn, that undermines our liberal democracy and the rule of law.

Wu discusses some possible actions to combat dark free speech. That is topic for a different discussion.

B&B orig: 5/27/19

Trump Attacks Climate Science, Again

The New York Times reports that Trump is launching a major attack on of what is left of environmental science by the government. The new initiative is intended to distort and obscure climate change as an issue as much as possible. The NYT writes:

Now, after two years spent unraveling the policies of his predecessors, Mr. Trump and his political appointees are launching a new assault.

In the next few months, the White House will complete the rollback of the most significant federal effort to curb greenhouse-gas emissions, initiated during the Obama administration. It will expand its efforts to impose Mr. Trump’s hard-line views on other nations, building on his retreat from the Paris accord and his recent refusal to sign a communiqué to protect the rapidly melting Arctic region unless it was stripped of any references to climate change.

And, in what could be Mr. Trump’s most consequential action yet, his administration will seek to undermine the very science on which climate change policy rests.

As a result, parts of the federal government will no longer fulfill what scientists say is one of the most urgent jobs of climate science studies: reporting on the future effects of a rapidly warming planet and presenting a picture of what the earth could look like by the end of the century if the global economy continues to emit heat-trapping carbon dioxide pollution from burning fossil fuels.

The attack on science is underway throughout the government. In the most recent example, the White House-appointed director of the United States Geological Survey, James Reilly, a former astronaut and petroleum geologist, has ordered that scientific assessments produced by that office use only computer-generated climate models that project the impact of climate change through 2040, rather than through the end of the century, as had been done previously.

Scientists say that would give a misleading picture because the biggest effects of current emissions will be felt after 2040. Models show that the planet will most likely warm at about the same rate through about 2050. From that point until the end of the century, however, the rate of warming differs significantly with an increase or decrease in carbon emissions.

Lies and morals:In essence, Trump politics will distort and deny climate science to the extent it is possible to do so. This is how authoritarian regimes do business -- anything inconvenient that gets in the way of politics will be attacked, denied, distorted or otherwise eliminated or obscured as much as possible. This is an example of dark free speech[1] in politics and how damaging it can be to countries , the fate of civilization and maybe even the human species. This is why what Trump and his enablers are doing is fairly considered to be so deeply immoral as to constitute a crime against humanity, or something akin to it.

Or, does that overstate the seriousness of what is going on here? Is Trump justified in doing this, e.g., because there is too much uncertainty in long-term climate predictions?

Footnote:
1. Dark free speech: Constitutionally protected (1) lies and deceit to distract, confuse and demoralize, (2) unwarranted opacity to hide corruption, and inconvenient truths and facts, and (3) unwarranted emotional manipulation (i) to obscure the truth and blind the mind to lies and deceit, and (ii) to provoke irrational, reason-killing emotions and feelings, including fear, hate, anger, disgust, distrust, intolerance, cynicism, pessimism and all kinds of bigotry including racism.

B&B orig: 5/28/19

Chapter Review: Constitutional Threats

In chapter 6, What's New? What's Next? Threats to the American Constitutional Order, Jennifer Hochschild (Professor of Government, Harvard) gives her view of America's current situation. The chapter is in the 2018 book, Constitutional Democracy in Crisis?, edited by Mark A. Graber, et al. The point of the book is to see how various experts diagnose America's current state of political affairs in light of history, not to offer solutions to problems. The editors write: "We do not, however, spend much energy offering cures, believing at this stage diagnosis is far more important, and not having any ready-made cures to offer."

How the right sees it: Hochschild starts out by listing reasons to think that America's situation under President Trump is very good to excellent. She quotes Nicholas Kristof: "2017 was probably the very best year in the long history of humanity." She lists areas of social progress to illustrate a basis for Kristof's optimism, e.g., decreasing gender pay gap, legalized same-sex marriage and decreased unemployment among essentially all groups and ages.

She describes the deep fears of the right like this: "If western governments can't, or won't, discharge the basic duties of providing physical safety and domestic tranquility, the question becomes whether democracies' citizens will come to regard the attributes that define their societies, such as pluralism, tolerance and civil liberties, as unaffordable luxuries. . . . . Tea Party protesters showed that 'corruption had eaten deeply into constitutional foundations, and that government was slipping beyond control of the governed'. . . . . To these analysts, a Trump presidency is a last-ditch heroic effort to save the republic, not evidence that America died on November 8, 2016."

Data discussed previously pointed to white insecurity and fears arising from social and demographic changes as the most important factor in Trump's election. The vision of America the right sees differs radically from how the left generally sees the situation.

Hochschild identifies two core factors that constitute constitutional rot and could lead to constitutional crisis. The first is the urban-rural divide and the second is hostility toward and degradation of liberalism, which she defines as a cluster of rights, norms and values.

The urban-rural divide: The urban-rural divide is described as about democracy and whether it still enables the two sides to engage to find common interests and resolve problems. She sees the right as being right about threat to the constitutional order, but for the wrong reasons. Her explanation is that "the core problem with democracy is Brexit-like: social and economic opportunities, societal institutions, individual behaviors and political attitudes are all lining up to reinforce one another such that" urban and rural areas are literally and metaphorically moving farther apart. She argues that the differences can harden into belief that one side's win necessarily means the other's loss. America's geographically based electoral order is, according to Hochschild, "poorly equipped to manage" this kind of social division.

Hochschild dives very deep into the data about Trump supporters and finds this: "They are disproportionately conservative religiously and culturally, mistrustful of elites, hostile to intellectuals, reliant on nonmainstream media, economically insecure, and fearful of downward mobility. . . . . Counties with many Trump supporters are disproportionately unhealthy, a pattern that both describes and causes growing economic and behavioral divides. . . . .'death predicts whether people vote for Donald Trump.' . . . . Affective [emotion-driven] polarization has permeated judgments about interpersonal relations, and exceeds polarization based on other prominent social cleavages. . . . . Americans not only mistrust one another, but also deeply mistrust the American national government."

Hostility and degradation challenge liberal governance: Hochschild argues that Trump is challenging liberal norms, practices and institutions. Trump attacks both people or groups of people and organizations and institutions needed for liberal politics. His attacks are grounded in dark free speech,[1] or as Hochschild puts it, "lying, ignoring unpalatable truths, and propounding obviously double standards."[2] The point is to foment unwarranted emotions including unwarranted disrespect, intolerance, distrust, cynicism and disgust.

Destruction of political norms is a major concern and imposes a constitutional risk that is hard or impossible to evaluate with any precision.

Footnotes:

1. Dark free speech: Constitutionally protected (1) lies and deceit to distract, confuse and demoralize, (2) unwarranted opacity to hide corruption, and inconvenient truths and facts, and (3) unwarranted emotional manipulation (i) to obscure the truth and blind the mind to lies and deceit, and (ii) to provoke irrational, reason-killing emotions and feelings, including fear, hate, anger, disgust, distrust, intolerance, cynicism, pessimism and all kinds of bigotry including racism.

2. Regarding hypocrisy, or Hochschild's "obviously double standard", the most recent outrageous example from congressional republicans comes from Mitch McConnell. He recently said that while he completely refused to consider Obama's Supreme Court nominee in an election year (2016), he would not hesitate to consider and consent to a Trump nominee in 2020, commenting: "We'd fill it," referring to the nomination. This blatant hypocrisy is highly polarizing, to say the least. Nonetheless, McConnell is completely nonchalant about it. That shows his utter contempt for political norms and political opposition, both of which are forms of constitutional rot.

B&B orig: 5/29/19