Saturday, February 4, 2023

From the Gerth to the Moon


Jules Verne's From the Earth to the Moon in the Greek animated version by Angelos Spartalis.

Jeff Gerth opens his massive report on "The Press Versus the President" (24,000 words, according to David Corn of Mother Jones) novelistically:

The end of the long inquiry into whether Donald Trump was colluding with Russia came in July 2019, when Robert Mueller III, the special counsel, took seven, sometimes painful, hours to essentially say no.

“Holy shit, Bob Mueller is not going to do it,” is how Dean Baquet, then the executive editor of the New York Times, described the moment his paper’s readers realized Mueller was not going to pursue Trump’s ouster.

Actually it was Baquet (speaking that August to a group of staffers angry at the paper's restrictions on words like "racist" and "lie") who was fictionalizing: it doesn't seem particularly important, but the hearings in which Mueller testified under subpoena on July 24 2019, House Judiciary in the morning, House Intelligence in the afternoon, were not when the New York Times readership learned that the special prosecutor would not be prosecuting the president; they'd learned that exactly four months earlier. March 24, when Attorney General Barr issued his four-page report on Mueller's report. Mueller's report itself was released to the public, in redacted form, on May 18. What Mueller said no to on July 24 was any questions, more or less, asking him to say anything beyond what was in the report—he was really determined not to say anything that wasn't already public. 

Though he did confirm his reasons for not charging Trump (or declining to charge him either) with obstruction of justice at the outset of Volume II (p. 213), prior to outlining the various ways in which Trump had committed obstruction of justice during the FBI and special counsel investigations of Russian interference in the 2016 presidential campaign and election:

a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”

but the OLC opinion would not have prevented Mueller from exonerating Trump—it was the evidence that stopped him from doing that:

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. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.

If the members of the Judiciary Committee and the Intelligence Committee wanted to know whether Trump had obstructed justice, in other words, which Mueller refused to use, the evidence would have to be put to the test in a trial, and since the Justice Department believed it couldn't do that, the members would have to do it themselves, as provided for in the Constitution, by impeaching him.

Baquet was mainly annoyed with the paper's customers, as usual, and employees, for their failure to appreciate his zealous refusal to let it be polluted with a differentiation between right and wrong:

“What I’m saying is that our readers and some of our staff cheer us when we take on Donald Trump, but they jeer at us when we take on Joe Biden,”

But the story of the investigation wasn't, in fact, over, and it still isn't. That impeachment never took place, the facts of the indictment were never tried. Gerth (in part IV) tries to suggest that the case was weak—nobody ever thought Trump was really serious when he was obstructing justice, including the primary witness

Barr, in an interview, said that “a lot of witnesses, including McGahn and others, tried to convey that no one took a lot of Trump’s bloviating seriously. They thought that he was letting off steam.” McGahn himself had told Mueller’s investigators “he believed the president never obstructed justice,” the Times would later report.

when he tried to persuade Comey to shot down the Flynn inquiry, claimed not to know anything about the Flynn-Kislyak calls of December 2016, asked Coats, Pompeo, and Rogers to stop the Russia investigation, fired Comey, ordered McGahn to fire Mueller, ordered Sessions to switch Mueller's remit to the investigation of future interference, tried to force Sessions to unrecuse himself, ordered McGahn to testify falsely that Trump had not ordered him to fire Mueller, and asked witnesses like Cohen, Flynn, and Manafort to give false testimony (later giving presidential pardons to the two who testified the way he wanted). Just "letting off steam".

And that House Judiciary was depending on Mueller to make a case that Mueller wasn't good enough at show business, maybe too old, for the press Gerth is presenting as Trump's irreconcilable enemies

Mueller’s “halting” testimony, as noted by the Times and many other outlets, was likely the final chapter in his lengthy public life. Woodward told me the Mueller report was a “fizzle” but reporters were “never going to declare it’s going to end up dry.” 

I don't know but none of these arguments convinces me that Trump wasn't guilty. A more important moment, in my view, comes a couple of days after the Mueller hearings, when Trump makes that phone call to President Zelensky, and Colonel Vindman is so appalled that he has to turn whistleblower, or, as Gerth says,

a more confident Trump had his phone call with Ukrainian president Volodymyr Zelensky in which he asked him for help in digging up dirt on Joe and Hunter Biden [and] What Trump thought was a “perfect” phone chat turned out to be the impeachment vehicle Democrats so desperately wanted after Mueller’s far-from-perfect performance.

I'm not sure that was the best decision. Not that the abominable Ukraine behavior didn't need to be called out. of course it did. but because every obstruction of justice is a key to the underlying criime, and it's the underlying crimes of the collusion with Putin that we really need to understand. From which Gerth is simply dancing away.

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