Cutting through Mueller’s legalese to draft articles of impeachment

The problem for the Trump impeachment is not a shortage of impeachable behavior, it’s an overwhelming ongoing pattern of high crimes and misdemeanors.  The challenge is putting the worst of it into a few easy to understand sentences, articles of impeachment subject to proof based on irrefutable evidence. 

The Mueller report, contrary to Bill Barr’s deliberately misleading PR campaign and his authoritative-sounding legal pronouncements about “insufficient evidence” and exoneration, contains a large amount of sworn testimony about presidential abuses of power.   

The detailed pattern of corrupt acts, the terrible stories recited in the prosecutorially noncommittal, balletic legalese of the Mueller report, needs to be incorporated into the articles of impeachment.  The president’s reflexive pattern of corrupt behavior must be set out in all its dramatic detail, (he does exactly the same thing every time so it’s very easy to picture him doing all this). Two or three similar, dramatic instances of his ongoing abuse of his office should be offered to stand in for the rest.

There should be an article of impeachment about his ongoing obstruction, his blanket refusal to provide any information and his demand, using flagrant, inflammatory public social media and mass media intimidation, that  all subordinates continue to defy subpoenas and refuse to testify.   Floating pardons to those willing to persist in giving false, helpful testimony and attacking and threatening those “rats” who threaten to testify truthfully. 

These larger charges, along a host of others, recited for the consideration of the Senate jury:  the hiring of his children, getting them illegal security clearances, vindictively firing a subordinate to prevent, by a single day, the vesting of his fully earned civil service pension, his brutal policies toward migrant children, his violent twitter attacks particularly vicious when attacking women and black people, especially black women, his seamless mendacity about things large and small, his vengefulness and using his office to mete out  revenge,  his refusal to put his assets into a blind trust, his monetizing of the office, his misuse of the Justice Department, his overruling military leaders about the scope of their authority, his beterayal of his oath of office,  etc., need to be incorporated into the articles of impeachment, or featured prominently during the impeachment trial, if Nancy Pelosi is the political genius she’s being touted as at the moment.

The president’s admitted shakedown of new Ukrainian president Volodymyr Zelensky for dirt on Trump’s political rival is one easy to understand instance of the president’s abuse of presidential power for his own corrupt ends.   Bear in mind, we only know about the president’s July 25 call, records of which were immediately hidden in a secure, secret server, because the whistle blower hired a lawyer who succeeded in getting the report to Congress, over corrupt AG Bill Barr’s best attempt to illegally bury a whistle blower report improperly forwarded to him and already vetted by the Inspector General and deemed “credible” and “urgent”.  Had Trump and Barr succeeded in burying the whistleblower complaint they attempted to make disappear, nobody would have even known of this.  That was part of the cover-up.     The only reason Zelensky’s end of the deal (the quid pro quo) wasn’t consummated (Zelensky was scheduled to appear on CNN to make the announcement on September 13) was that the whistleblower report was made public before then and the bipartisan approved military aid was released on September 11.

There is debate over whether, standing alone, the withholding of military aid to embattled Ukraine until Zelensky made a public announcement that Biden’s alleged corruption was under investigation is an impeachable offense.  There is the “perfect” July 25th call itself, which followed a coordinated”back-channel” smear campaign that removed the US  ambassador: and then the attempted cover-up of this “inappropriate” call, its improper hiding  in a top secret server, the irregular forwarding of the Inspector General’s report on the whistleblower complaint to the DOJ and the DOJ’s improper attempt to bury the whistleblower complaint.  These actions are all part of the president’s impeachable conduct in relation to shaking down the Ukrainian president.  All typical actions by Mr. Trump, things we’ve all seen him do publicly many times.  Trump’s fact-twisting defense of these actions is only a further demonstration of his unfitness for office.  It’s worked for him so far, and it’s the only wayhe knows how to do things.

It’s debatable, perhaps, whether Trump’s unethical efforts in connection to Ukraine, standing alone, are an abuse of power that rises to the level of an impeachable offense.  Add in the hiding of the original call, the illegal attempt to squash the whistleblower’s credible and urgent request, the release of a doctored summary transcript of the perfect call, the obstruction of witness testimony and there is not much room for an intelligent debate against the proposition that these were corrupt acts and part of a long pattern of corrupt acts.  As a vivid, easy to understand example of more than a dozen, or maybe fifty, similar abuses of power, the Ukraine shakedown is only the clearest illustration of the pattern.   The president does this exact kind of thing, the fallout ensues and then he reacts with almost comic predictability (it might be funny if he wasn’t one of the most powerful men in the world), time after time.   

There is a very strong case that the constantly attacking president, a reflexively lawless, compulsively lying man, ready to use any means necessary to serve the pressing needs of his own roiling ego is unfit for office. Unfit for the supremely important office he holds —  leader of the world’s most powerful, most influential nation, at the moment when the world is heading toward a climate catastrophe of unimaginable destruction.

Use Plain English

In law school students are urged to write in plain English.  Make your story clear to the judge, to the jury, the non-lawyer, the high school kid.  Argue plainly and concisely, using strong, active words everybody understands.   I’m thinking about plain English after wrestling with a few of the deliberate, agile contortions in Mueller’s careful, precise legalese.  Mueller should have written his dramatic, troubling stories in plain English if he wanted Americans to really know about them.  More about that below.

I’ve been thinking of Brian Lehrer’s challenge to listeners to draft an article of impeachment.   I plan to draft one that indicts the president for a continuous course of corrupt conduct detrimental to citizens’ faith in the government and in the administration of justice.   

While mulling over how to write a crisp, irrefutable short article of impeachment for the most openly corrupt president in living memory, I’ve been listening to a great dissection of the Mueller report by a group called Lawfare, who introduced the project like this:

For the past several weeks, a group of us has been working on a project to tell the story of the Mueller Report in an accessible form. The Mueller Report tells a heck of a story, a bunch of incredible stories, actually. But it does so in a form that’s hard for a lot of people to take in. It’s very long. It’s legally dense in spots. It’s marred with redactions. It’s also, shall we say, not optimized for your reading pleasure.

They set out to make plain, in their colorful audio version, some of the many dramatic findings of the investigation, quoting the report extensively along with the media’s, lawyers and the president’s reactions to those revelations.  The podcast is excellent and highly recommended.   Hearing the vivid illustrations of a course nefarious conduct from Mueller’s own investigation made me wonder why Mueller didn’t lay out his findings nearly so forthrightly.   There are some fucking great stories in there.

You can check out the excellent podcast here.   The following paragraphs are  largely based on their second to last episode, The Fixer Flips  [1].  

There are countless examples of the president’s continuous course of corrupt conduct since beginning his campaign for the presidency.  Many are detailed in the hundreds of pages of the Mueller report.   Let’s look at the course of corrupt conduct that flows from Trump’s actions regarding a single close associate, Trump’s long time “fixer” Michael Cohen. [2]  

Michael Cohen, encouraged by Trump, agreed to a false story with Trump and their lawyers (they had a joint defense agreement at first) and lied, under oath, to Congress about the status of Trump’s long pursued billion dollar Trump Tower Moscow project.

The development signaled legal peril for Trump, whose presidency has been besieged by special counsel Robert Mueller’s inquiry into whether his campaign team colluded with Russia’s interference in the 2016 US election.

Cohen made his disclosure as he pleaded guilty to lying to Congress about the Moscow project. He said he made false statements to hinder the Trump-Russia investigation and to protect Trump, who was identified in court as “Individual 1”.

“I made these statements to be consistent with Individual 1’s political messaging and out of loyalty with Individual 1,” Cohen told the federal court in Manhattan on Thursday morning, after signing a plea agreement with Mueller. He did not say if Trump directed him to lie.

Mueller said Cohen had specified that he lied “to give the false impression that the Moscow project ended before the Iowa caucus” which took place on 1 February – the critical first vote in Trump’s presidential primary contest in 2016.

Outside the White House, Trump told reporters that Cohen was “a weak person and not a very smart person” and claimed without evidence that Cohen was lying to secure a reduced punishment for other crimes.

source

Rudy Giuliani, the president’s longtime associate and personal lawyer, by the way, nonchalantly told a TV interviewer at the time that the Trump Tower discussions with Russia had continued until right before the 2016 election.  He strenuously retracted that statement the following day.  Which is highly suspicious, of course, but also increasingly typical of admissions by Trump associates.

After Cohen became a cooperating witness (“rat” in Trumpspeak) he recanted the lies he’d agreed to tell to Congress, to protect the president.  He corroborated evidence of  damaging facts he’d been actively hiding, out of personal loyalty to the his longtime boss, the president and to cover-up their work with Russians up to and through the 2016 election.

The pertinent facts reported in this section of the Mueller report, what Mueller might have written, in plain English: 

There is substantial evidence that Mr. Trump encouraged Cohen to give false sworn testimony to Congress and that they coordinated their false story.   When Cohen agreed to cooperate with the government Trump did everything possible to dissuade Cohen from cooperating.   During their joint defense agreement, Mr. Trump and Mr. Cohen were able to freely share information about the Mueller investigation and shape their legal narratives together.   After the joint defense agreement between Trump and Cohen ended, Trump continued to pay Cohen’s mounting legal defense bills and praise him publicly as a good and loyal man who would never “flip”. 

Attorney Robert Costello, a close associate of the president’s personal lawyer Rudy Giuliani, contacted Cohen and informed him of a Giuliani back-channel to the president.  Costello stressed to Cohen the importance, in the absence of the joint defense agreement, of using Giuliani as a back -channel in all communications with Trump and his legal team. 

Costello sent Cohen an email reporting that he’d talked to Giuliani and that the conversation was “very, very positive.  You are loved.  They are in your corner. Sleep well tonight, you have friends in high places.”   

During this time Trump publicly praised Cohen and touted his loyalty, saying Cohen was a good man who would never “flip”, suggesting publicly and in private that he could use his pardon power to shield Cohen if his former fixer stayed on message.   Trump continued to pay Cohen’s legal defense bills amid media reports of pardon discussions between the parties.

After Cohen announced his intent to cooperate with the government, Mr. Trump stopped paying Cohen’s legal bills, repeatedly attacked Cohen as a “rat”, suggested that ‘flipping’ (cooperating with the government, in mobster shorthand) should be illegal and publicly threatened Cohen’s father-in-law with criminal prosecution. 

In a good example of why lawyers have long been reviled, Mueller writes of the question of Trump’s clear intent to prevent Cohen from testifying truthfully:

In analyzing the president’s intent in his actions toward Cohen as a potential witness there is evidence that could support the inference that the president intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the president’s campaign period conduct and statements.

“there is evidence that could support the inference that…”

Instead of writing this, about the president’s public witness tampering:

Our investigation uncovered substantial evidence that the president intended to discourage Cohen from cooperating with the government.  Fearing Cohen’s truthful testimony would be damaging to him, the president repeatedly called Cohen a “rat”, repeatedly and publicly attacked his credibility, publicly stated that ‘flipping” (cooperating with the government) should be illegal and intimidated Cohen by publicly threatening his father-in-law  with a criminal investigation.

Mueller, as throughout the report, bending over backwards to appear scrupulously fair and even-handed,  drafts this opaque chunk of elegant,  accurate, nonjudgmental legalese, which says the same thing:

Before Cohen began to cooperate with the government the president publicly and privately urged Cohen to stay on message and not “flip”.  After it was reported that Cohen intended to cooperate with the government, however, the president accused Cohen of “making up stories to get himself out of an unrelated jam.”   He called Cohen a “rat” and on multiple occasions suggested members of Cohen’s family had committed crimes.    The evidence of this sequence of events could support an inference that the president used inducements in the form of positive messages in an effort to get Cohen not to cooperate and then turned to attacks and intimidation to deter the provision of information and to undermine Cohen’s credibility once Cohen began cooperating.

“The evidence of this sequence of events could support an inference that…”

There are literally dozens of similar detailed, dramatic illustrations of Trump’s many abuses of power in the report (and in Trump’s ongoing behavior), of the president’s singular focus on protecting himself above all else, manipulating subordinates using public praise, public attacks, his full presidential powers to coerce and intimidate witnesses from speaking truthfully, or at all.   His ongoing liberal use, and dangling, of the pardon power, (starting with his unpardonable pardon of Sheriff Joe Arpaio, for contempt of a federal order to stop operating his open air, self-proclaimed “concentration camps” for prisoners in the Arizona desert, and continuing through his recent overruling of the Navy’s intended expulsion of a Navy SEAL who it strongly appears committed vicious war crimes and was turned in by his fellow SEALS) is characteristic of his nonchalant, regular  abuse of his presidential power. 

The Ukraine shakedown, once more using unofficial back-channel private citizen and personal lawyer Rudy Giuliani to smear a well-respected career diplomat prior to her removal from Ukraine, suggests that there are many more guiltily hidden instances where Giuliani has performed such “deniable” work for the president’s reelection campaign.  The smear campaign and removal of Marie Yovanovitch were part of a long campaign to get dirt on Biden that preceded Trump’s July 25th call to Zelensky to directly make his offer of military assistance for a corruption investigation into Burisma, the company Biden’s son worked for.

The president’s recent real-time twitter attack on Marie Yovanovitch, the vilified ambassador he dismissed from her post in the Ukraine, as she was testifying in the impeachment inquiry, is consistent with his constant attacks and attempts to intimidate anyone he perceives as a threat to his presidency and/or business interests.

Trump is a man who continues to embrace the disgraced Roy Cohn as his ideal of a great lawyer.   Cohn, Trump’s unscrupulous mentor, felt the full measure of his protege’s famed loyalty as he was dying; Trump turned his back on Roy Cohn.   Rudy “Back-channel” Giuliani, the long-time Trump friend who would be Attorney General, and sometimes works, unofficially, in harness with the actual appointed A.G., appears poised for a similar send-off by the “most transparent president in history”.   A man who’d never be a rat, a man of the highest loyalty and moral standards.  A man who needs to be impeached for high crimes and misdemeanors, removed from office and criminally prosecuted for just a few of his more ordinary crimes.

 

 

[1]   All quotations from the Mueller report (including the email of Giuliani’s associate who offered the Fixer a back channel to the president when he was about to “flip”), are transcribed from that podcast.

From Lawfare:

This episode covers Trump’s attempts to influence another potential witness to his conduct: his former lawyer Michael Cohen. When Cohen is called to testify before Congress, with the help of Trump’s attorneys he drafts a false statement that repeats the Trump team “party line” about the Trump Tower Moscow project.

The president knows that Cohen, more than almost anyone else, has had a front-row seat to Trump’s conduct. Congress wants to hear from Cohen and the President’s lawyers take the lead in workshopping a statement to give to Congress that minimizes the Trump campaign’s missteps. Cohen goes before Congress and regurgitates the lies endorsed by Trump’s team. But Cohen is not out of trouble yet. The fixer finds himself in serious criminal trouble with federal law enforcement in New York and Trump is nervous. A host of Trump affiliates get in contact with Cohen and make allusions to a powerful weapon in Trump’s arsenal: a presidential pardon.

But Cohen then begins to cooperate with the government and the president sours on his beloved fixer. With Cohen no longer on the team, the president unleashes a storm of tweets assailing Cohen and threatening his family.

source

[2] We will leave aside, for the moment, Individual One’s secret October 2016 $130,000 payment to a porn actress to keep quiet about a sexual liaison Trump had while married to his third wife.   

The New York Times notes that the President denies he ever had a sexual affair with porn actress “Stormy Daniels”, after mentioning the $130,000 N.D.A. he had his “fixer” enter into with her.   The ‘fixer’ later testified under oath that he’d paid off the porn star right before the 2016 election, with funds not directly traceable to Trump,  at the direction of  “Individual One”.  Individual one, of course, denies everything.  Not his fault, none of it!  Never!  God forbid!

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