Obstruction of justice in plain sight

The Washington Post recently editorialized, Trump pulls another stunt of cynical distraction:

The party in power is demanding the investigation and possible prosecution of its defeated political rival on trumped-up claims of wrongdoing. This is what happens in banana republics, not the world’s greatest democracy. Even if this is just a strategy to divert attention, it is unbecoming of the leaders of a rule-of-law state and a disservice to their oaths.

The authoritarian wannabe autocrat Donald Trump has gone full banana republic in the past few days, pressuring his Attorney General and the Justice Department to investigate and prosecute his “defeated political rival on trumped-up claims of wrongdoing” or, once again, he is threatening to fire Jeff Sessions for not using his office to pursue his political rivals. Trump breaches boundaries by saying DOJ should be ‘going after’ Democrats:

President Trump on Friday repeatedly called on the Department of Justice and FBI to investigate his Democratic political opponents, a breach of the traditional executive branch boundaries designed to prevent the criminal justice system from becoming politicized.

Trump urged federal law enforcement to “do what is right and proper” by launching criminal probes of former presidential rival Hillary Clinton and her party — a surprising use of his bully pulpit considering he acknowledged a day earlier that presidents are not supposed to intervene in such decisions.

In a flurry of accusatory morning tweets, Trump claimed there was mounting public pressure for new Clinton probes, including over her campaign’s joint fundraising agreement with the Democratic National Committee that effectively gave her some control over the party’s finances, strategy and staffing before the primaries began.

Trump invoked Sen. Elizabeth Warren (D-Mass.), who had said that she believed the Democratic primaries were rigged in Clinton’s favor based on details of the arrangement in a new book by former DNC interim chair Donna Brazile. Using his pejorative nickname for Warren, Trump tweeted: “Pocahontas just stated that the Democrats, lead [sic] by the legendary Crooked Hillary Clinton, rigged the Primaries! Lets [sic] go FBI & Justice Dept.”

Trump also called for probing the deleted emails from Clinton’s private server while she was secretary of state, as well as the sale of a uranium company to Russia and the international business of Democratic super-lobbyist Tony Podesta, the brother of John D. Podesta, who served as Clinton’s campaign chairman.

“People are angry,” Trump wrote in one tweet. “At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!”

Trump amplified his message later Friday morning, as he spoke to reporters on the South Lawn of the White House before he departed for a 12-day trip to Asia.

“I’m really not involved with the Justice Department,” Trump said. “I’d like to let it run itself. But honestly, they should be looking at the Democrats . . . And a lot of people are disappointed in the Justice Department, including me.”

Trump has long been irritated, and at times outright angry, with Attorney General Jeff Sessions for refusing to prosecute Clinton and for not better protecting him from special counsel Robert S. Mueller III’s wide-ranging probe into Russian interference in the 2016 election, the president’s advisers have said.

Trump made his displeasure clear in a Thursday radio interview on “The Larry O’Connor Show.”

“You know, the saddest thing is, because I am the president of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI,” Trump said. “I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it.”

The president said it was “very discouraging to me” that the Justice Department and FBI were not “going after Hillary Clinton.” He added, “Hopefully they are doing something and at some point, maybe we are going to all have it out.”

The White House offered no explanation for why Trump publicly pressured the Justice Department on Friday. A Justice Department spokesman also declined to comment.

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Friday’s public pressure marks the latest attempt by Trump to use his presidential megaphone to direct the criminal justice process.

Trump delivered off-the-cuff remarks this week recommending punishment for Sayfullo Saipov, the suspect accused of killing eight people with a rental truck in New York City. He at first said he was considering sending Saipov to the military prison at Guantanamo Bay, Cuba, but then reversed course and advocated a civilian trial in federal court and the death penalty for the terrorism suspect he called “an animal.”

The president’s comments complicated the work of FBI agents and federal prosecutors as they were investigating the attack and preparing criminal charges.

The Justice Department is a part of the executive branch; the attorney general is nominated by the president, as is the FBI director. So it is normal for the White House to direct the department and bureau on broad policy goals.

But unlike other executive branch agencies, the Justice Department traditionally enjoys a measure of independence, especially when it comes to individual criminal investigations. Government lawyers have long sought to enforce a clear line preventing White House officials from influencing specific investigations or prosecutions to ensure their work is not politicized.

Trump has departed from tradition when it comes to the Justice Department in other ways as well, including by talking with some candidates for some U.S. attorney jobs. Although they are presidential appointees, U.S. attorney candidates have not traditionally had personal interviews with the president before they were selected.

Sen. Bob Corker (R-Tenn.), who is not running for reelection and has become an outspoken critic of Trump’s, issued a statement:

WASHINGTON – U.S. Senator Bob Corker (R-Tenn.) today released the following statement on the importance of an independent justice system after reports that President Donald J. Trump refused to rule out firing Attorney General Jeff Sessions if the Department of Justice does not investigate what the president wishes.

“Like me, most Americans hope that our justice system is independent and free of political interference,” said Corker. “President Trump’s pressuring of the Justice Department and FBI to pursue cases against his adversaries and calling for punishment before trials take place are totally inappropriate and not only undermine our justice system but erode the American people’s confidence in our institutions.”

The wonder is that every member of Congress has not issued this same statement. Silence is consent. Tyranny must be resisted. Speak up!

The president directing a particular investigation — especially of a former political rival — would be viewed by most officials in law enforcement as improper. This, though, is not the first time Trump has suggested putting Clinton in law enforcement’s crosshairs.

During the campaign, Trump repeatedly led rally crowds in chants of “Lock her up!” that were aimed at Clinton. And during a presidential debate, Trump told Clinton he would “instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception.”

Trump’s comment sparked a torrent of criticism, including from former attorney general Michael Mukasey, who worked under former Republican president George W. Bush and was a vocal Clinton critic.

“It would be like a banana republic,” Mukasey, who could not be reached for comment Friday, said at the time. “Putting political opponents in jail for offenses committed in a political setting, even if they are criminal offenses — and they very well may be — is something that we don’t do here.”

For an excellent  discussion of how Donald Trump is engaging in obstruction of justice (18 U.S. Code § 1503) in plain sight, see this segment of All In with Chris Hayes. President Donald Trump Is Obstructing Justice In Plain Sight.

Conservative blogger Jennifer Rubin at the Washington Post makes a forceful argument for Trump’s latest impeachable actions:

At the core of President Trump’s unfitness and his malfeasance in office is his interaction with the Justice Department and the courts. This goes from the merely verbal denigration of the courts — “a joke,” “a laughingstock,” “so-called judges” — to actual actions such as firing the FBI director, reportedly imploring the FBI director to lay off of former national security adviser Michael T. Flynn, trying to meddle in the prosecution of Joe Arpaio (whom he subsequently pardoned for criminal contempt of court) and, now, directly encouraging the Justice Department to go after a political opponent for spurious, long-ago debunked claims.

In a series of tweets, he called on the Justice Department to go after the Democrats: “Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems … People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!” In remarks to reporters, he continued on in this vein. “I’m really not involved with the Justice Department. I’d like to let it run itself, but honestly, they should be looking at the Democrats. They should be looking at [John] Podesta and all of that dishonesty. They should be looking at a lot of things. And a lot of people are disappointed in the Justice Department, including me.”

There is no president in modern memory who has repeatedly and directly called on the Justice Department to investigate a political opponent in such a manner. A politician, one could imagine, upon new and actual evidence of wrongdoing, might say something like, “The appropriate authorities should look into this.” That’s not what Trump is doing here. He is both assuming guilt and applying pressure to go after an opponent based on scurrilous propaganda that he and his followers have generated. This is the conduct of a Third World dictator, and by any stretch of the imagination, an abuse of presidential power.

Trump’s latest call — following “lock her up” chants at rallies that continued after his election — is not an isolated event, but, as noted before, part of an ongoing pattern of trying to lean on the Justice Department either to pursue or not to pursue criminal proceedings against specific individuals. This certainly clears the bar of abuse of power established in the impeachment of Richard Nixon (who “merely” countenanced using the CIA to shut down the FBI’s investigation of the Watergate break-in) and goes well beyond the discrete action of Bill Clinton in lying under oath in the Paula Jones matter and to the grand jury. Trump’s conduct is pervasive, and if allowed to go unpunished will permanently distort our constitutional system. We simply cannot tolerate presidential meddling in our criminal-justice system to protect friends and persecute enemies.

“There is no bigger abuse of power than the president ordering his Justice Department to investigate his political enemies or back off his political allies, and Trump has done both,” says former Justice Department communications director Matthew Miller. “If he did it in secret, it would be treated as an enormous scandal, but because he does it in public [in plain sight], we have all gotten used to it. But it’s still the worst possible abuse of power, and the kind of thing everyone in Congress should demand end immediately — with the most serious consequences if he doesn’t.”

Republican leadership, however, has entirely abandoned its constitutional obligations and makes no effort to halt such conduct. The leaders are not acting in good faith to uphold their oaths of office — namely to defend the Constitution.

What should a conscientious member of Congress be doing? First, he or she should be condemning the president’s conduct and demanding that it stop. Second, he or she should consider whether the conduct above, if confirmed (e.g. did Trump ask former FBI director James B. Comey to drop the case against Flynn?), would rise to the level of impeachable conduct. In doing so, a member of Congress would want to consider whether, if the conduct were condoned, our system of justice would be damaged henceforth. I would suggest that this is an easy call.

Special counsel Robert S. Mueller III may come to see the president’s behavior to have been in violation of criminal statutes — witness intimidation, obstruction of justice, etc. He may seek indictments against others who he thinks conspired with Trump, for example, in the firing of Comey. It remains to be seen whether Mueller thinks a sitting president can be indicted (the current Justice Department position is that a sitting president cannot), whether he manages to get Trump named (as Leon Jaworski did with Nixon) as an “unindicted co-conspirator,” or whether he makes (again, as Jaworski did) a non-public referral to Congress (e.g. not publicly exposing grand jury testimony but including it for use by Congress for impeachment).

Whatever Mueller decides to do, however, members of Congress cannot — consistent with their oaths — remain silent. In doing so, they demonstrate their unfitness to serve and provide ample reason to replace them with representatives and senators who will defend the Constitution.

Contact your members of Congress and demand that they speak out against this abuse of power and to do their constitutional duty.