Bill Of Impeachment: Article I, Obstruction Of Justice

[wesw]

correct.

[ex-khobar Andy]

Mueller is a longtime prosecutor. A prosecutor does not indict unless pretty sure of the outcome: the evidence is strong and s/he thinks that a jury can be persuaded. Whether the jury is 12 random citizens or the Senate, even the obstruction of justice stuff was probably never going to be enough. Don't forget that Nixon's downfall was the existence of the tapes, and then the Rs in the Senate told him that they did not have the votes to quash an impeachment. Without the tapes he would not have been impeached and he would not have resigned.

Mueller was thinking like a prosecutor. He says so in the summary: "The standard set forth in the Justice Manual is whether the conduct constitutes a crime ; if so, whether admissible evidence would probably be sufficient to obtain and sustain a conviction; and whether prosecution would serve a substantial federal interest that could not be adequately served by prosecution elsewhere or through non-criminal alternatives."

That's why from the beginning my point has been that the focus of Mueller's investigation should have been, in this order:
a) did the Russians (or anyone else for that matter) seek to influence the outcome of the 2016 election?
b) if yes, were they successful?
c) can we make an educated assessment of the extent of that success - number of popular votes, EC votes?
d) did Trump or any of his posse conspire either actively or passively (i.e., by assisting or failing to hinder) this effort?
e) most important of all but you wouldn't know this either from the report or the discussion, on both sides, since the report - what do we do to stop it from happening again? Election Day is November 3, 2020 - now less than 17 1/2 months away.

To me, as a non citizen and therefore non voter, (e) is the most important. The anti-fascists mounted the Manhattan Project to defend democracy, and my view is that democracy, or what might be called The Open Society, needs another such to protect it from its enemies.

[Econoline]

An interesting suggestion from Jonathan Chait in New York Magazine:

• Congress Should Impeach William Barr
  By Jonathan Chait | 3:33 P.M.
  
  House Democrats are going to face a difficult decision about launching an impeachment inquiry into President Trump. Balanced against the president’s impressive array of misconduct is the fact that several more criminal investigations that may add to the indictment are already underway, and that impeaching the president might jeopardize the reelection of red-state Democratic members. But in the meantime, Attorney General William Barr presents them with a much easier decision. Barr has so thoroughly betrayed the values of his office that voting to impeach and remove him is almost obvious.
  
  On March 24, Barr released a short letter summarizing the main findings of the Mueller investigation, as he saw them. News accounts treated Barr’s interpretation as definitive, and the media — even outlets that had spent two years uncovering a wide swath of suspicious and compromising links between the Trump campaign and Russia — dutifully engaged in self-flagellation for having had the temerity to raise questions about the whole affair.
  
  Barr had done very little to that point to earn such a broad benefit of the doubt. In the same role in 1992, he had supported mass pardons of senior officials that enabled a cover-up of the Iran–Contra scandal. Less famously, in 1989 he issued a redacted version of a highly controversial administration legal opinion that, as Ryan Goodman explained, “omitted some of the most consequential and incendiary conclusions from the actual opinion” for “no justifiable reason.”
  
  And while many members of the old Republican political Establishment had recoiled against Trump’s contempt for the rule of law, Barr has shown no signs of having joined them. He met with Trump to discuss serving as his defense lawyer, publicly attacked the Mueller investigation (which risked “taking on the look of an entirely political operation to overthrow the president”), called for more investigations of Hillary Clinton, and circulated a lengthy memo strongly defending Trump against obstruction charges.
  
  The events since Barr’s letter have incinerated whatever remains of his credibility. The famously tight-lipped Mueller team told several news outlets the letter had minimized Trump’s culpability; Barr gave congressional testimony hyping up Trump’s charges of “spying,” even prejudging the outcome of an investigation (“I think there was a failure among a group of leaders [at the FBI] at the upper echelon”); evaded questions as to whether he had shared the Mueller report with the White House; and, it turns out, he’s “had numerous conversations with White House lawyers which aided the president’s legal team,” the New York Times reports. Then he broke precedent by scheduling a press conference to spin the report in advance of its redacted publication.
  
  It is not much of a mystery to determine which officials have offered their full loyalty to the president. Trump has reportedly “praised Barr privately for his handling of the report and compared him favorably to former Attorney General Jeff Sessions” —whose sole offense in Trump’s eyes was following Department of Justice ethical protocol. Trump urged his Twitter followers to tune in to Barr’s conference, promotional treatment he normally reserves for his Fox News sycophants.
  
  The press conference was the final disqualifying performance. Barr acted like Trump’s defense lawyer, the job he had initially sought, rather than as an attorney general. His aggressive spin seemed designed to work in the maximal number of repetitions of the “no collusion” mantra, in accordance with his boss’s talking points, at the expense of any faithful transmission of the special counsel’s report.
  
  Barr’s letter had made it sound as though Trump’s campaign spurned Russia’s offers of help: “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign,” he wrote. In fact, Mueller’s report concluded, “In some instances, the Campaign was receptive to the offer,” but that the cooperation fell short of criminal conduct.
  
  Where Mueller intended to leave the job of judging Trump’s obstructive conduct to Congress, Barr interposed his own judgment. Barr offered this incredible statement for why Trump’s behavior was excusable: “[T]here is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said. “Nonetheless, the White House fully cooperated with the Special Counsel’s investigation,” and credited him further with taking “no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.”
  
  Sincere? How can Barr use that word to describe the mentality of a man whose own staffers routinely describe him in the media as a pathological liar? Trump repeatedly lied about Russia’s involvement in the campaign, and his own dealings with Russia. And he also, contra Barr, repeatedly denied the special counsel access to witnesses by dangling pardons to persuade them to withhold cooperation.
  
  It is true that many of Trump’s attempts to obstruct justice failed. As Mueller wrote, the president’s “efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
  
  This is a rather different gloss on the facts than the happy story Barr offered the press. What’s more, it is a pressing argument for Barr’s own removal. Next to the president himself, the attorney general is the most crucial actor in the safeguarding of the rule of law. The Justice Department is an awesome force that holds the power to enable the ruling party to commit crimes with impunity, or to intimidate and smear the opposing party with the taint of criminality.
  
  There is no other department in government in which mere norms, not laws, are all that stand between democracy as we know it and a banana republic. Barr has revealed his complete unfitness for this awesome task. Nearly two more years of this Trumpian henchman wielding power over federal law enforcement is more weight than the rickety Constitution can bear.

[Scooter]

Loretta Lynch had Republicans foaming at the mouth because she ran into Bill Clinton for 30 seconds on an airport tarmac. What's their excuse for not setting their hair on fire over Barr's disgraceful conduct?

[Lord Jim]

The Virginia GOP blackface officials are old news.

Uhh, SG...

Those Al Jolson wannabes are both Democrats...

(The accused rapist Lt. Governor, too....)

correct.

Thanks for verifying that my information was accurate, wes...

You're definitely the gold standard go-to guy around here for fact checking...

[Econoline]

Another good article, this one from The Atlantic:

The Mueller Report Is an Impeachment Referral
The special counsel has concluded he can neither charge nor clear the president. Only Congress can now resolve the allegations against him.

I won't quote the whole thing this time (^^link above^^), but here are the final 3 paragraphs:

In 1826, Vice President John C. Calhoun sent a remarkable letter to the House of Representatives, “in its high character of grand inquest of the nation.” He complained that claims of “impeachable offenses” had been lodged against him in an executive agency. Because he was “conscious of innocence,” he explained, he could “look for refuge only to the Hall of the immediate representatives of the people.” He asked the House to convene impeachment proceedings against him, so that he would have the chance to clear his name. The House agreed and, after an investigation, effectively cleared Calhoun.

Mueller has now delivered 10 credible allegations of obstructive behavior on the part of the president. For all of Trump’s bluster, those claims are now a matter of public record, and will hang over his presidency, despite the decision of his own appointee to clear him in the matter.

The constitutional mechanism for resolving this situation is impeachment. The president, no less than Calhoun, deserves a chance to clear his name. The public deserves a chance to examine the evidence against him. And his supporters and opponents alike deserve the clarity that only convening impeachment hearings can now provide.

[MajGenl.Meade]

Cries and Whispers . . .

Sen. Mitt Romney, R-Utah, said Friday that he was “sickened” by what he read in special counsel Robert Mueller’s report on Russian interference in the 2016 election and Donald Trump’s attempts to cover it up.

. . . “If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state,” Mueller wrote. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”

Romney had been sharply critical of Trump’s business practices, temperament and foreign policy proposals during the 2016 primaries. But when Trump endorsed him for his Senate bid last year, Romney happily accepted.

[ex-khobar Andy]

What a weird world. I never could have dreamed that I would one day welcome Romney as a Senator.

You go, Mitt!!!

[Burning Petard]

The job of Senator is so very different from that of POTUS. Not surprising Mitt could be a good Senator. If I had the chance, I (a yellow dog democrat) would have voted for his mother for President.

snailgate

[Econoline]

[Lord Jim]

Not exactly the same as "No Collusion"....

Mueller Confirms: Don Jr. Was Too Stupid to Collude

The special counsel couldn’t prove Junior knew he might be committing crimes.



For the entirety of the special counsel’s investigation into possible collusion between Russia and the Trump campaign, and obstruction of justice by the president, one question consistently on people’s minds was: will Donald Trump Jr. go down for this?

It was Donald Trump’s namesake, after all, who received an e-mail from British publicist Rob Goldstone on behalf of Russian pop star Emin Agalarov promising dirt on Hillary Clinton—to which he responded “If it’s what you say . . . I love it, especially later in the summer”—and, after follow-up calls with Agalarov, set up the infamous Trump Tower meeting in June 2016, attended by Jr., Jared Kushner, campaign manager Paul Manafort, an employee of Russian billionaire Aras Agalarov, Russian lawyer Natalia Veselnitskaya, former Russian counter-intelligence officer Rinat Akhmetshin, and a translator.

He also apparently made a big show of telling everyone the Russians were coming, announcing in the regular morning meeting of senior campaign staff and Trump family members that he had “a lead on negative information about the Clinton Foundation” that he was taking a meeting to investigate, according to testimony from Manafort deputy Rick Gates, which makes an appearance on page 115 of the newly released Mueller report.

Obviously, all this only added to the question of Donny’s legal liability. In fact, as the redacted report states, the special counsel’s office “considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting.” But luckily for the president’s eldest son, he ended up getting off scot-free—not because he hadn’t done anything sketchy, but because Robert Mueller concluded he was too stupid to know what he was doing. Mueller writes:

This series of events [surrounding the June 9 meeting] could implicate the federal election-law ban on contributions and donations by foreign nationals . . . Specifically, Goldstone passed along an offer purportedly from a Russian government official to provide “official documents and information” to the Trump campaign for the purposes of influencing the presidential election. Trump Jr. appears to have accepted that offer and to have arranged a meeting to receive those materials. Documentary evidence in the form of e-mail chains supports the inference that Kushner and Manafort were aware of that purpose and attended the June 9 meeting anticipating the receipt of helpful information to the Campaign from Russian sources.

The Office considered whether this evidence would establish a conspiracy to violate the foreign contributions ban . . . solicitation of an illegal foreign-source contribution; or the acceptance or receipt of “an express or implied promise to make a [foreign-source] contribution” . . . There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e. with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation.

Elsewhere, Mueller notes that his investigation “has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context.” While most people would obviously be happy to avoid prison time, they might also think twice about doing a victory lap after it came out that their actions bordered on criminal and it was only their obvious ignorance that saved them. And yet!

https://www.vanityfair.com/news/2019/04 ... ith-russia

So collusion yes, but criminal conspiracy no, because you're so stupid and ignorant that we don't think we could convince a jury beyond a reasonable doubt that you knew what you were doing...

And while we're on the topic of collusion...

Robert Mueller’s Six Cases for Collusion

A closer reading of the Mueller report reveals a series of episodes that are, if not criminal, deeply corrupt.

Nowhere in the sprawling first volume of Robert Mueller’s report does the special counsel exonerate Donald Trump of “collusion.” And yet, there is an obvious tension between the contents of the report and the breezy, seemingly exculpatory introduction given by Attorney General William Barr on Thursday morning, some 90 minutes before the 448-page document was released online. While it’s true that Mueller’s investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election-interference activities,” as we have known for weeks, the actual report is brimming with incidents and behavior that appear, at the very least, deeply corrupt.

The trouble, as former F.B.I. counter-intelligence agent Asha Rangappa explained to me last year, is that “collusion does not necessarily have to be criminal.” Mueller himself writes, “in evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of ‘collusion.’” So while the special counsel may not have found that anyone associated with the Trump campaign conspired with the Russians to hack the 2016 election, that doesn’t mean he didn’t outline a case for collusion. In fact, a closer reading of the Mueller report reveals a series of significant interactions involving Trumpworld and the Russians. In total, these six episodes paint a damning portrait of borderline criminality...

https://www.vanityfair.com/news/2019/04 ... -collusion

[ex-khobar Andy]

I didn't see the VF article, but I saw one somewhere making approximately the same point. What did bother me was this sentence:

the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e. with general knowledge of the illegality of their conduct;

There are, to me, two usually conflicting views of the law which have always bothered me. The concept of 'mens rea' - guilty mind - implies that if you don't know that what you are doing is illegal, then it is exculpatory. On the other hand, 'ignorance of the law is no excuse' implies, as far as I can tell, tough shit.

Maybe one of our legal beagles can help me here.

Too often the Trumpista have dragged out the 'these guys are not Washington insiders so they don't understand all the ins and outs of the laws' excuse for any transgression, while anyone who has picked up a newspaper in the last 30 years would instantly know - you can't do that.

[Lord Jim]

The concept of 'mens rea' - guilty mind - implies that if you don't know that what you are doing is illegal, then it is exculpatory. On the other hand, 'ignorance of the law is no excuse' implies, as far as I can tell, tough shit.

I think it depends on the particular law...

Some laws are worded in a way that requires consciousness of guilt (or "willfully") as an element of the violation.

[Big RR]

I don't practice criminal law (maybe BSG can help here) but my recollection is that mens rea goes to the volition in committing the act, knowledge of the illegality of it is immaterial. So if I write a check without knowledge (or not caring) if I have funds to cover it, I have the mens Rea to pass a bad check, whether I know that is illegal or not (or even if I believe the bank will deposit it twice and the money will be there then. It does not matter whether I realize it is illegal or not.

Some crimes, as Jim say, do require willfulness to commit the crime (like certain types f murder), but even then which raises this to a higher degree; I may have the mens rea to kill someone if I shoot randomly into a crowd (as the death was reasonable outcome of my action), but it may lack the willfulness to kill someone if I was just being negligent in where/how I shot.

[Lord Jim]

Nearly two more years of this Trumpian henchman wielding power over federal law enforcement is more weight than the rickety Constitution can bear.

That has been a central concern of mine; just what will Trump expect Barr to do next as his personal lawyer running the justice department?

Trump's made pretty clear that he wants both independent investigators and his political opponents not just investigated, (which absent sufficient evidence to justify investigation would be in and of itself improper) but prosecuted. (He wont be happy with any investigation that results in anything less.)

The fear that William Barr will now become an active accomplice in this grotesque abuse of power is certainly a legitimate one, based on his performance to date...(It's one I definitely share; I've been pretty scathing in my condemnations of Barr...)

However, that being said...

I'd like to take a moment to put forward an alternative theory to explain Barr's behavior; a theory that I'm not sold on, but that I believe has enough going for it to at least deserve an airing...

What if Barr has played Trump? What if all of Barr's audience-of-one Trump butt-sucking was designed to lull Trump into a false sense of security so that he would trust Barr to completely have his back regarding what portions of the Mueller Report to release so that he (Trump) wouldn't get personally involved. So Trump wouldn't try to prohibit the report from being released period, or claim "Executive Privilege" over just about everything in it?...

The strongest evidence for this theory is the sweeping and detailed content in the redacted report itself. Despite all the effusive praise he ladled on Barr prior to the reports release, I'd lay a bet that he ain't particularly happy with him at the moment, given what was released. I suspect in the next few days we will see this start to leak out in press reports of Trump expressing his displeasure.

Also, despite well-founded fears (given Barr's behavior) regarding what the extent of the redactions would be, most of them appear to be in the sections where one would legitimately expect them; regarding the information gathering process involved in establishing the Russian's actions, and the names of the targets of the 12 on-going investigations.

And in the event, the concern that Barr would use his self-declared "reputation protection of peripheral actors" category as a wedge to gut the report and redact anything related to anyone who wasn't indicted (including Trump's family members, and possibly even Trump himself) did not materialize...

Given what was released, and the areas of redaction, I am not among those who believes there is some additional "smoking gun" of misdoing on Trump's part hidden in the redactions. The report in it's present form, paints an extremely damning portrait of Trump and many close to him (especially his eldest son) in clear and unmistakable language...

The second volume alone presents a 182 page richly detailed evidence-rich roadmap for an Impeachment proceeding on Obstruction Of Justice...much of it reads just like a prosecution brief.(Among the many things in that section are Mueller's complete demolition of Barr's arguments regarding a President's near immunity from being charged with obstruction, and the argument that an underlying crime is required for prosecuting him.)

When one looks at just how enormously damaging to Trump the released report is, it's legitimate to argue that the person who released it, (especially when they had the option to release a lot less or even nothing at all, without a long drawn-out court fight) didn't really have Trump's best interests as his guiding concern...(Assuming that the person in question is intelligent and knowledgeable enough to understand the meaning and impact of what the report contains, which Barr certainly is.)

Whether or not this theory has legitimacy will depend on how Barr behaves going forward regarding all the grossly improper (and even illegal) things Trump is now sure to try to get him to do...

[Burning Petard]

"Trump is accused of gross abuse of his office. We’re not talking about the Mueller report." Headline in WaPo today

https://www.washingtonpost.com/opinions ... 235095960d

IMNSHO, do not impeach. Get all this stuff out in public and hang it tightly to the tails of every Republican who ever said a kind word about Trump. Shrink the GOP until it is small enough to be able to drown it in a bathtub. Make the 21at century GOP party a forgotten footnote in history along side the American party and the Know-Nothing party.

snailgate

[Econoline]

From David Gerrold on Facebook:

• Here is — in my never-humble opinion — the best possible game plan.
  
  The House of Representatives must accelerate the seven ongoing investigations into the Failure-in-Chief.
  
  They must demand the unredacted Mueller Report.
  
  They must investigate the issues raised in the unredacted Mueller Report.
  
  They must reveal their findings to the nation.
  
  Among these are the Failure-In-Chief's very dubious tax returns. These are likely to reveal the depth of the criminal conspiracy that has corrupted the workings of our government.
  
  These investigations should be deep and thorough — but they should also be seen as the compilation of evidence for further action by the Congress.
  
  When sufficient and compelling evidence has been gathered and made public — regardless of the timing, regardless of any imagined political consequences — when the House of Representatives has made a compelling case, the House Judiciary Committee should hold the necessary hearings and then present Articles of Impeachment to the House of Representatives for a vote.
  
  Regardless of the Senate's willingness to convict, the Articles of Impeachment must be read out — so that the American public can hear the evidence against the man who currently lives in our White House. Regardless of the outcome, the evidence must be made public.
  
  If there is a political consequence —
  

  • (SIDEBAR: Do not comment that the Senate will not convict, you are not precognitive. Do not comment that Pence will be worse, we've had that conversation, it's been beaten to death. Do not comment that this will get the asshole reelected, you don't know that either. This post is not about those things and the comment thread is not for "whatabout" dicsussions.)

  
  
  — yes, there will be a political consequence. Both sides will take a hit. There will be polarization, there will be upset, there will be ferocious exchanges. So what?
  
  Here's the only question that matters:
  
  Do we uphold the rule of law in this nation or not?
  
  Our Constitution is designed to create a system of checks and balances among the three branches of government. Congress is charged with oversight on the Executive Branch.
  
  Do we want Congress to do its duty? Or surrender to a false perception of political practicality?
  
  If we are to restore America, if we are to recover and rebuild what has been dismantled and destroyed, then we have no choice but to demand that Congress proceed with investigations, and if necessary, a bill of impeachment.
  
  I believe that the Mueller Report is a directive to the House of Representatives that there is evidence to be investigated, that a compelling case can be made, and that the House must move toward impeachment.
  
  I also believe that the investigations must be deep and thorough and compelling.
  
  It may take time, and the job will not be pleasant — it will be a disturbing effort — we will have to delve into the darkest parts of the criminal corruption. But that's how you clean up a mess. You have to be committed to the results, no matter how uncomfortable the journey.

The only thing I would add is that the House committees should not make receiving the unredacted report too high a priority, because harping on this point might be a political liability — and unnecessary. Yes, they're entitled to it, but I agree with what Jim posted* above:

• Given what was released, and the areas of redaction, I am not among those who believes there is some additional "smoking gun" of misdoing on Trump's part hidden in the redactions. The report in it's present form, paints an extremely damning portrait of Trump and many close to him (especially his eldest son) in clear and unmistakable language...

* (except for the "it's" which should be "its")

[Lord Jim]

The only thing I would add is that the House committees should not make receiving the unredacted report too high a priority, because harping on this point might be a political liability — and unnecessary.

I completely agree...

It's entirely appropriate for the House to continue to press for a completely unredacted version of the report but that should not in any way delay the ongoing investigations...There's way more than enough in the redacted version to proceed on; as the old saying goes, "The perfect should not be made the enemy of the good"...

It's not really necessary for the HJC to call their investigation an "Impeachment Inquiry" yet, so long as they proceed with all deliberate speed to do everything they would do if a formal impeachment inquiry were to be declared...

May should be a very busy month for witnesses in public hearings...

For starters, in addition to Barr and Mueller they should bring in every person who it was revealed Trump attempted to use in his efforts to obstruct justice, (starting with Don McGahn) so the American people can hear and see the full import and extent of the corrupt and criminal behavior revealed in the report laid out for them...

[Lord Jim]

Also, under NO circumstances should the standard "We shouldn't begin an impeachment inquiry in the House until and unless we have the votes in hand for removal in the Senate" (which looks to me like Nancy Pelosi's preferred approach) be applied...

If that approach had been taken in the spring of 1974, Richard Nixon would have finished his term...

[Scooter]