Obstruction of Justice 101

I buried the lede yesterday in writing about the Trump-appointed Federal Election Commission quorum voting 2-2 not to recommend prosecution of Donald Trump for the federal campaign-finance crime he ordered Michael Cohen to commit. The lede should have been:

Donald Trump successfully obstructs justice, again. Add another count to his federal indictment for obstruction of justice.

I laid out the mechanics of Trump’s latest daring escape from prosecution in the previous post. The rest of the story is the largely successful war Trump has been fighting, to this point, against all accountability for himself and, more scary still, against objective reality. The election that he lost, and fought and lost dozens of increasingly desperate fights over in court — and then incited a riot to try to overturn? He won that election in a landslide.

That millions of our fellow citizens now believe the deranged, conspiratorial myth that a powerful, bipartisan cabal of monsters, including diehard Trump supporters in various states Trump lost, stole the election from the beloved Trump is very troubling. I don’t know what the solution to that kind of mass delusion is. The only remedial action I can think of is a public accounting of Trump’s seamless obstruction of justice, conviction of which should land him locked up (“Lock him up! Lock him UP!”) and finally unavailable to terrorize his craven supporters and enablers in the upcoming national elections.

Obstruction of justice is the federal crime Trump must be tried for, in order to reaffirm the rule of law. Trump’s mouthpieces have regularly insisted that nobody is above the law, with the obvious exception, of course, of their peerless leader, and any one of his associates who has incriminating information about Mr. Trump.

Trump may have been “morally and practically responsible” (Mitch McConnell) for sending a tsunami of rioters down to the Capitol to violently disrupt a joint session of Congress and prevent the certification of Joe Biden’s “victory,” and that might be solid grounds for bipartisan impeachment, but as McConnell also made clear, the Democrats missed their deadline for legally filing the articles of impeachment (under a rule he just made up and guaranteed they’d violate by his refusal to take the articles sooner) and, since the shit don’t fit, we must acquit!

Any unbiased observer who has followed current events knows that the compulsively untruthful Trump engaged in a seamless pattern of obstruction of justice for his entire presidency, and beyond. He accomplished much of his obstruction, and escaped accountability for his violations of laws and norms, by terrifying anyone who challenged him in any way. He has an impressively consistent record of publicly and vitriolically punishing those he feels lack sufficient personal loyalty to him. Let’s look at that pattern and practice a bit.

Trump had a clear legal right to fire the FBI director, for example, unless he did it with a corrupt motive. It was the appearance of an attempt to obstruct the investigation into Flynn and collusion with Russia that led to Mueller’s appointment to investigate. The qualm some legal scholars expressed in bringing legal action against Trump for actions that appeared designed to obstruct justice, was the difficulty of proving an essential element of the crime of Obstruction of Justice, a corrupt intent behind any of Trump’s otherwise legal exercises of power.

A consistent pattern or practice of behavior in response to an ongoing situation can be used to show intent. Trump has been 100% consistent in his behavior, has, in fact, shown himself capable only of one set of reactions to anything he feels is a threat, criticism, or, worst of all, disloyalty. He reacts with rage and takes swift and brutal revenge. Here is a small sampling of his consistent pattern of behavior showing his ongoing intent to obstruct justice.

His expressed intent in firing Comey, to end the FBI investigation and conceal Flynn’s connections with Putin (a “fix” he promptly celebrated with Russians in the Oval office), was shown again when he made numerous attempts to fire Mueller, who was investigating the many ties between the Trump campaign and Putin. As Mueller’s “witch hunt” heated up Trump forced the “weak” AG Sessions to resign and replaced him with former short-time Bush 43 AG, crime cover-up expert Bill Barr (he put the Iran-Contra affair to bed forever), who wrote, in auditioning for the job, that the Mueller probe was an illegal incursion onto the powers of the Executive.

As soon as Mueller sent Barr his report, Barr immediately lied about the contents of the Mueller report as to Obstruction of Justice (the federal judges who later found that Barr had deliberately misled the public in relation to his dismissal of Mueller’s findings and the false classification of a DOJ memo to hide it from scrutiny, used “lacked candor” and “disingenuous” [1] to describe Barr). Barr supported Trump over and over, announcing investigations into the investigators who had “exonerated” Trump, declining to prosecute Trump allies, spreading unfounded lies about the likelihood of election fraud, authorizing (and lying about authorizing) the use federal riot troops to break up peaceful demonstrations.

Trump fired inspectors general (like the one investigating Mike Pompeo), intimidated witnesses (in real time) as they testified in the House against Trump allies and took swift, public revenge against several of those witnesses. Trump also rewarded several of his top campaign advisors with pardons, an open, facially legal, quid pro quo in exchange for them dummying up for Mueller investigators, withholding evidence Mueller would have used to make a criminal conspiracy case.

Facts have come out since Mueller submitted his report that provide several of the missing evidentiary links that forced Mueller to conclude he didn’t have a chargeable criminal conspiracy between Trump operatives like Paul Manafort and Vladimir Putin. That Mueller didn’t get the facts because Trump loyalists withheld information is another obstruction of justice, and these loyalists getting the pardons Trump held out to them as motivation to stay quiet, and lie if necessary, are also clear examples of obstruction of justice. We also have Trump’s assertion of an absurdly broad blanket protective privilege that Bill Barr made up to allow Trump to refuse all subpoenas for anyone who’d ever worked with him and to defy various court orders.

I am only touching the basics, which include the ten damning incidents laid out by Mueller in the report that Barr falsely claimed “exonerated” Trump, incidents set out in the short summary Bill Barr substituted his own disingenuous summary for the day after Mueller turned over the massive two-volume report. Mueller immediately objected, by letter, to Barr’s mischaracterization of the report, which he called “misleading,” but Americans were not told about Mueller’s objection until weeks later, once Barr’s lying characterization of the findings, and Trump’s continual lying about the “witch hunt,” and his “exoneration” had become the last word on the matter. Now, it turns out, Barr was lying about a confidential memo he claimed was a privileged part of his deliberations on whether or not to keep his promise to Trump and make the Mueller findings go bye bye.

The ease with which Trump evaded all responsibility for open and continuous obstruction of justice, including crushing numerous investigations into himself, top cabinet officials and allies, underscores the weakness of an idealistic belief in democracy.

A system that depends on the ethical behavior of government officials to carry out its functions is easy for unethical types to exploit, as we have seen here, increasingly, during the last decade, especially during the Age of MAGA. Look no further than McConnell’s refusal to allow Antonin Scalia’s seat on the Supreme Court to be filled by an Obama appointee, or that well-qualified, moderate nominee even getting a hearing, as the Constitution requires.

If ethics oversight is cast aside, as it was repeatedly by Trump and his officials (Sessions, a Trump outlier who followed the sound legal advice of his ethics advisors, was cursed as a weakling and traitor and punished for following ethics advice) we’re in open seas. If ethical norms are routinely ignored, the field is clear for any corruption imaginable. Mike Pence’s crime, for which he was hunted to be strung up, was his “weakness” in following the law and not exercising a power he didn’t have by refusing to count the Biden Electoral College votes.

Trump raised the bar for bad Executive branch behavior from the standard “avoiding even the appearance of impropriety” to the almost insurmountable “incontrovertible proof of criminal wrong-doing that no jury anywhere could deny. Proof beyond a shadow of a doubt!” The matter of Trump’s guilt or innocence for violating the law (see, e.g. repeated Hatch Act violations during the 2020 campaign) longstanding customs and norms is as immaterial to Trump as the felony lies Mike Flynn pleaded guilty to telling the FBI were, in the end, to disingenuous Trumpist Bill Barr when he attempted to quietly bury the Flynn prosecution and conviction.

Hitler and his colleagues exposed the vulnerability of an idealistic democracy when they exploited and unseated the liberal Weimar Republic, high-minded in its “supine passivity” when actual fascists violently attacked it. The Weimar constitution, the most enlightened of its day, extended every civilized right to the accused, including those accused of waging violent revolution against the government, and a smart revolutionary could take advantage of these liberal rights.

Because the right-wing German judge who tried Hitler for his failed Beer Hall Putsch admired him, the future Fuhrer was given a platform to speak to the German people from the courtroom hours a day during his trial. Adolf emerged from the well-publicized treason trial a martyr for Germany, a patriot, and famous, particularly after writing his little read best-seller during his brief stay in comfortable quarters in Landsberg Prison [2].

So far, mostly, we still have the rule of law here in the USA. Even if some powerful criminals seem to constantly escape its reach, systemic injustice is widespread, and the wealthy have a tremendous advantage in court over everybody else, the rule of law has so far held here.

Things like the Federal Rules of Evidence prevent a judge from pulling a decision not based on evidence out of his partisan ass, except in the rare case (like the 10% of controversies in which Kavanaugh voted differently from Merrick Garland on the DC Court of Appeals) where judicial discretion can result in the desired partisan outcome.

You can have Trump-appointed, Federalist Society vetted, federal judges rule on cases involving Trump, but, to this point, they have not felt free to make up the law, except in rare cases.

When Judge Neomi Rao, the rabid Trumpist who was elevated to fill Boof Kavanaugh’s seat on the DC Court of Appeals, ignored existing law and invented a new legal doctrine to uphold Bill Barr’s decision to obstruct justice by attempting to throw out the Flynn guilty pleas, without a hearing, she was overturned by the full panel of appeals judges on her court.

When Trump lifetime appointee J. Nicholas Ranjan was asked to make a counterfactual finding in a case brought to severely limit mail-in voting in Pennsylvania, he dismissed the case not only for lack of credible evidence of potential fraud (or any evidence, actually, as he showed in detail) he spent 140 pages making his decision appeal-proof, giving endless legal and factual grounds that would instantly extinguish any chance of a successful appeal.

No matter how much Trump partisans in positions of public power may have wanted another result, in those voter suppression cases, in the 2020 election, they all, in the end, followed the law. Which is why the law in state after state is being changed to comply with what Trump wished had been existing law, which would have enabled him to stay in office regardless of election results, as far as his supporters can tell.

Which is why this latest obstruction of justice by Trump (disabling the FEC from performing any oversight function over elections or electoral campaigns until after he lost the election he “won in a landslide”) should be added to the long list and left to a jury, and the judges, to rule on, and without delay.

Anything less would amount to Obama’s “we, uh, tortured some folks” after Dick Cheney dragged America on his long, brutal trip to the Dark Side, cheered on by his lovely, torture-loving daughter Liz.

[1]

among the synonyms/common definitions for disingenuous:

insincere, calculating, deceitful, underhanded, hypocritical, duplicitous, sly, dishonest, pretending that one knows less about something than one really does, being a lying sack of shit, etc.

[2]

Landsberg, which was used for holding convicted criminals and those awaiting sentencing, was also designated a Festungshaft (meaning fortress confinement) prison. Festungshaft [de] facilities were similar to a modern protective custody unit. Prisoners were excluded from forced labor and had reasonably comfortable cells. They were also allowed to receive visitors. Anton Graf von Arco-Valley who shot Bavarian prime minister Kurt Eisner was given a Festungshaft sentence in February 1919.

In 1924 Adolf Hitler spent 264 days incarcerated in Landsberg after being convicted of treason following the Beer Hall Putsch in Munich the previous year. During his imprisonment, Hitler dictated and then wrote his book Mein Kampf with assistance from his deputy, Rudolf Hess.

source

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