Government of men

What -Gate is it going to be? I was thinking maybe we should call it Greatgate, i.e., the Great Gate of Kiev. Btw if you only know these pieces in the stylish orchestration by Ravel, you will be surprised by the mystery and emotion of Musorgsky's original piano suite.

Very depressing post from Steve M warns us not to get our hopes up because this thing of Trump putting pressure on Ukraine's new president Volodymyr Zelensky is not going to go anywhere, with which I agree, though for somewhat different reasons—I don't see the use of putting so much blame on Democrats, especially Speaker Pelosi, as they maneuver their way through an inconceivably strange situation.

It was on 25 July, the very day after Robert Mueller's less than devastating congressional testimony, note Philip Rucker, Robert Costa, and Rachael Bade in a useful WaPo piece, that Trump, having declared himself totally exonerated of any attempt to collude with a foreign government to influence a US election, made that phone call in a different attempt to collude with a different foreign government to influence another US election; "Trump's Ukraine call," say the headline writers, "reveals a president convinced of his own invincibility."


And not without reason, because it seems as if he can get away with anything, if he can figure out how to do it (which does put some very significant limitations on him), and nobody has any ideas for stopping him or, rather, there are plenty of ideas, but they require the cooperation of people who aren't willing to cooperate. The situation is well summarized in these passages from the WaPo article:

We haven’t seen anything like this in my lifetime,” said William A. Galston, a senior fellow in governance at the Brookings Institution who graduated from college just before Watergate. “He appears to be daring the rest of the political system to stop him — and if it doesn’t, he’ll go further.”...

“What we’re discovering is that the Constitution is not a mechanism that runs by itself,” Galston said. “Ultimately, we are a government of men and not law. The law has no force without people who are willing to enforce it. The ball is now squarely in the court of the Republican Party, and particularly Senate Republicans. Will they ever be prepared to say enough is enough?”

The Republican Party and the Department of Justice, which is in my view even more reprehensible; I don't see parties as having constitutional responsibilities, but DOJ certainly does, as we learned during Watergate, and the attorney general is not allowed to be the president's personal consigliere and argue that he's not subject to criminal investigation of any kind or oversight by congressional committees.

Although I guess it's getting clearer that that is what Barr was hired to do, as pointed out in a new article by former congressman (D-NC) Brad Miller in The American Prospect:

Trump and Barr alike will adopt any means necessary to defeat challenges to presidential power, which even includes false testimony under oath by senior administration officials in judicial proceedings....

as Barr has been working to do since the first term of the Reagan presidency, when he served in the Office of Legal Counsel, and was apparently shocked by Congress's success in subpoenaing documents from the Environmental Protection Agency over the protests of Reagan and the Administrator (Anne Gorsuch Burford, as it happens).

DOJ’s Office of Legal Counsel (OLC) issued an opinion that DOJ need not prosecute criminal contempt of Congress charges that the House referred, despite statutory language that they must. Armed with that opinion, DOJ refused to prosecute. It apparently dawned on Burford that the lawyers in the White House and DOJ who wanted the fight with Congress did not risk jail time—but she did. Unnamed Burford aides told reporters that Burford wanted to provide subpoenaed documents to Congress, but Reagan ordered her to stand down.

Career EPA employees leaked damaging evidence of misconduct by Burford’s leadership team. Representative John Dingell, the fiercest practitioner of congressional oversight in American history, said his committee had evidence of criminal conduct at EPA. Burford fired Rita Lavelle, the head of the Superfund program. Lavelle was later convicted of perjury in the House investigation.

Shocked that the future Supreme Court justice's mom would avoid jail by these crude means, Barr was determined to do something to prevent such outcomes in the future, and after he became OLC administrator himself in 1989 enshrined his views in a memorandum, "Common Legislative Encroachments on Executive Branch Authority":

According to Barr, the president alone decided what information Congress should have about executive functions. Statutory “dual reporting requirements” that executive branch agencies provide Congress the same budget requests and legislative proposals that agencies send within the executive branch constituted an unconstitutional “effort to insert [Congress] into the executive branch decisionmaking process.”... 

The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress's business.

Thirty years later, he's still working on that and in a position, as attorney general, to make it work, and his non-cooperation with Congress on all the issues of Trump's criminality and misbehavior from tax returns to the current whistleblower question is just breathtaking. And I'll remind you that nothing is going to come of calling the cops on witnesses who refuse to testify or provide documents to Congress because that's how Barr told them to respond, because Barr is in charge of the cops.

He can't control the judiciary (though he can influence it to favor Trump and the Trump administration has been working on that pretty successfully since long before Barr joined it by stuffing it with the most radically rightwing judges the Federalist Society can find), though. There's some real hope that courts will find in favor of congressional Democrats trying to force DOJ to obey the law, because the law and the precedents are so clear, going back to Watergate and Iran-Contra (though Nixon and the scoundrels of the Reagan administration never got punished, thanks to Ford's and old Bush's pardons, the court findings remain, however much Barr may have argued that they were all found incorrectly).

But we need to understand how glacially they proceed! Some people think Nadler hasn't issued any subpoenas, where in fact he started issuing them in April (against McGahn, for testimony and documents) and the earliest we'll get a ruling is in November. Barr will challenge and appeal every single one.

I don't think this Ukraine case is a good thing to organize an impeachment around in any case. It's too morally confusing, for one thing (Trump was bribing Zelensky by offering to do the thing Democrats and Republicans and NATO and the EU were begging him to do?). It's an opportunity for Barr to appear to compromise by offering a transcript of the phone call (which Republicans and newspapers will find to be ambiguous) and refusing to produce the whistleblower report (which I still think is at least as much about Putin as Zelensky; I stillcan't believe Trump was willing to run these risks for the sake of one stupid Biden story).

We really will have better impeachment material before too long, maybe bank records and tax returns, maybe that whistleblower going to Congress, certainly more details on domestic emoluments. We'll certainly be in so much better a position to get something political out of an impeachment in the spring, when our primary is more or less finished and Republicans haven't had one and haven't had a chance to find out how the story is registering with the public.

I wish people wouldn't freak out about this current episode. It's only an episode. As ever, we should not be looking at it in isolation, but as one more piece of a story of pervasive criminality.