Monday, June 4, 2018

Pardon My Russiagate

See liberal heads explode! Someone, most likely on the Trump side, has leaked an old letter from Trumps counsel to Mueller to the New York Times stating that the President has the power to dodge subpoeanas and pardon himself and others in Russiagate, as well as end the Mueller investigation with a wave of his small fingered hand: Answering Questions Raised In Yet Another Leaked Letter In Mueller Probe. Jazz Shaw reads the NYT so you don't have to (and probably can't)
There’s yet another “bombshell” letter from the Mueller investigation in the New York Times this weekend, brought to you once again by Maggie Haberman and her band of would-be Trump prosecutors. The document in question was sent by Trump’s attorneys to Bob Mueller back in January and it deals with questions of whether or not the President can obstruct justice and if he can or should be made to answer questions before a grand jury. (You can read the full letter here, interrupted by numerous comments from Haberman and friends.) This has all the usual tongues wagging on cable news and it raises questions of how this letter was leaked, how much power Mueller actually has over the President and if one particularly juicy looking paragraph spells trouble for the President’s eldest son.
Jazz explains why he thinks the letter leaker was not one of the President's men:
I already heard a member of one panel on CNN this morning opining that it “probably” came from Trump’s team because he’s trying to make his case before the public and the letter “doesn’t look like” a legal court document. That seems unlikely on two counts. First of all, as the Times staff readily admits, there’s almost nothing in the arguments being made by Trump’s lawyers that we haven’t been hearing from them openly in interviews since the beginning. In fact, most of it can be found in Trump’s Twitter feed. The other reason I don’t think it came from Team Trump is how the origins of the letter are described in the Times article. When they get something from a leaker in the White House or Trump’s organization it’s almost always characterized as being from a White House official speaking on background or a “source familiar with the President’s thinking” or something like that. It lends more credibility to the story and works to spread the idea of chaos and dissent inside the White House.

This article merely describes the letter as having been, “obtained by the New York Times.” No indication of the source is offered. Since they don’t want to reveal their source, I’ll go ahead and say that my money is on the probability that it came from Mueller’s team yet again.
Giuliani: Sure Trump Can Issue A Pardon For Himself, which doesn't necessarily mean it's a good idea politically. Ann Althouse: The only "shock" is stating the proposition now, before it's necessary to make the argument in a legal context.
So there's really no shock at all. Giuliani breezed past the legal question without seriously answering it and use the opportunity to talk about the political forces that constrain the use of the power the President "probably" has.

I think that's quite appropriate. The President is focused on his political fate, not what might happen in a criminal case in court, and as long as he's still in office as possessed of the power to pardon, the use of the presumed power to pardon himself would undermine his political position. Better to leave his fate in a possible criminal prosecution for later and to trust that the next President will — like Ford for Nixon — save him from the ignominy of a criminally prosecuted former President. The new President won't want that riveting the country's attention, tearing us apart.

By the way, this question whether the President can pardon himself was big during the Bill Clinton administration. I remember it well because I used it for a Constitutional Law I exam, and I remember a colleague of mind scoffing at the question (without knowing I thought it was good enough for an exam). She just thought it was ridiculous because it wasn't going to happen. You can talk about the President pardoning himself, but it isn't going to happen. The political realities preclude that scenario.

You might be wondering what's the answer to the exam and assuming I have if not a firm answer at least a preferred answer. I really didn't care which way the answers went. I wanted a demonstration of understanding and skill in applying methodologies of interpretation. It would be wise to begin with the text of the particular clause — "The President... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" — and wise not to end there.
Stephen Green at Instapundit:
Former U.S. Attorney Cites Framers’ Intent in Denying Trump Self-Pardoning Power. “When in God’s name did a liberal ever care what the writers of the Constitution intended?”

When it can be used to bash Republicans, of course.
The Hill has Chucky Schumer: Trump lawyers’ argument that he can’t obstruct justice would be valid in a dictatorship. Tom Maguire at Just One Minute handicaps the chances of Trump being able to dodge a Mueller subpoena: Can Mueller Subpoena Trump?
It was relatively easy to find legal experts saying that this is a fight Trump won't win when the issue arose recently. Vox, reliably lefty, contacted nine legal experts and the general theme was pro-Resistance. Keith Whittington stood out as wondering just how clear-cut Mueller's power to subpoena would be; he provided more at Lawfare. Do let me add that all this ought to be subject to a caveat about dramatic new information from Mueller that could sway the undecided, uninterested or confused.

Also at Lawfare, Benjamin Wittes and Steve Vladek gave Mueller a strong 'definitely maybe':
The bottom line, in our view, is that Mueller would probably prevail if and when a battle over a grand-jury subpoena makes its way into court. But it is not a sure thing, and the president has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.
So, better odds of prevailing than the Cavaliers but not as good as the Yankee's chance of winning the AL East (currently 57% at FanGraphs).
. . .
And my two cents, not made in these articles (IIRC): fighting with Trump is like wrestling a hog - win or lose you get covered with mud. John Roberts et al will be very keen to stay out of this scuffle if they can find any reasonable way to do so, since - barring game-changing new information from Mueller - half the country will loathe whatever decision they make.
Sara Carter:  PANDORA’S BOX: Trump/Russia May Expose Extent of “Five Eyes” Allied Spying - A comprehensive timeline of events of the Russia investigation
If what the British and western intelligence officials are saying is true, then the investigation into the Trump campaign began much earlier than the FBI’s claims at the end of July 2016. More importantly, our allies may have been collecting more communications than we’re aware of on Trump campaign officials and volunteers. What we do know is that National Security Advisor Lt. Gen. Michael Flynn; Carter Page, a short time foreign policy volunteer for the campaign; Paul Manafort, a short-term campaign chair and George Papadopoulos, a young short-term foreign policy advisor were all caught up in the spying dragnet.
So, basically, our intelligence agencies conspired with foreign powers to effect the outcome of our election.

Jack Matlock at the The Nation? casts doubt on the Russiagate collusion delusion: Amid ‘Russiagate’ Hysteria, What Are the Facts? We must end this Russophobic insanity. You should read the whole thing. It's not that you'll see anything new that hasn't been published here through the whole process, but to see a liberal magazine admit that they got nothing on Trump is astonishing:
So what are the facts?

  1. It is a fact that some Russians paid people to act as online trolls and bought advertisements on Facebook during and after the 2016 presidential campaign. Most of these were taken from elsewhere, and they comprised a tiny fraction of all the advertisements purchased on Facebook during this period. This continued after the election and included organizing a demonstration against President-elect Trump.
  2. It is a fact that e-mails in the memory of the Democratic National Committee’s computer were furnished to Wikileaks. The US intelligence agencies that issued the January 2017 report were confident that Russians hacked the e-mails and supplied them to Wikileaks, but offered no evidence to substantiate their claim. Even if one accepts that Russians were the perpetrators, however, the e-mails were genuine, as the US intelligence report certified. I have always thought that the truth was supposed to make us free, not degrade our democracy.
  3. It is a fact that the Russian government established a sophisticated television service (RT) that purveyed entertainment, news, and—yes—propaganda to foreign audiences, including those in the United States. Its audience is several magnitudes smaller than that of Fox News. Basically, its task is to picture Russia in a more favorable light than has been available in Western media. There has been no analysis of its effect, if any, on voting in the United States. The January 2017 US intelligence report states at the outset, “We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election.” Nevertheless, that report has been cited repeatedly by politicians and the media as having done so.
  4. It is a fact that many senior Russian officials (though not all, by any means) expressed a preference for Trump’s candidacy. After all, Secretary of State Hillary Clinton had compared President Putin to Hitler and had urged more active US military intervention abroad, while Trump had said it would be better to cooperate with Russia than to treat it as an enemy. It should not require the judgment of professional analysts to understand why many Russians would find Trump’s statements more congenial than Clinton’s. On a personal level, most of my Russian friends and contacts were dubious of Trump, but all resented Clinton’s Russophobic tone, as well as statements made by Obama from 2014 onward. They considered Obama’s public comment that “Russia doesn’t make anything” a gratuitous insult (which it was), and were alarmed by Clinton’s expressed desire to provide additional military support to the “moderates” in Syria. But the average Russian, and certainly the typical Putin administration official, understood Trump’s comments as favoring improved relations, which they definitely favored.
  5. There is no evidence that Russian leaders thought Trump would win or that they could have a direct influence on the outcome. This is an allegation that has not been substantiated. The January 2017 report from the intelligence community actually states that Russian leaders, like most others, thought Clinton would be elected.
  6. There is no evidence that Russian activities had any tangible impact on the outcome of the election. Nobody seems to have done even a superficial study of the effect Russian actions actually had on the vote. The intelligence-community report, however, states explicitly that “the types of systems we observed Russian actors targeting or compromising are not involved in vote tallying.” Also both former FBI director James Comey and NSA director Mike Rogers have testified that there is no proof Russian activities had an effect on the vote count.
  7. There is also no evidence that there was direct coordination between the Trump campaign (hardly a well-organized effort) and Russian officials. The indictments brought by the special prosecutor so far are either for lying to the FBI or for offenses unrelated to the campaign such as money laundering or not registering as a foreign agent.
  8. So, what is the most important fact regarding the 2016 US presidential election?

The most important fact, obscured in Russiagate hysteria, is that Americans elected Trump under the terms set forth in the Constitution. Americans created the Electoral College, which allows a candidate with a minority of popular votes to become president.

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