Yeomans Work

As the scheduled start of Brett Kavanaugh’s confirmation hearing approaches, Republican leaders have rejected calls for delay pending resolution of the Mueller investigation, responding that Trump is president and can exercise all of the powers granted to him by Article II of the Constitution. Fair enough, but then there’s Merrick Garland. Mitch McConnell never disputed President Obama’s Article II authority to nominate Merrick Garland, but he invoked a special circumstance – the election in seven months – to justify his refusal to process the nomination. McConnell’s stated reason was nonsense. His true reason was to keep the seat open for a Republican nominee at any cost, even if that meant refusing to consider a President Hillary Clinton nominee. He had no constitutional grounding for his inaction, but he had raw power and he established a new norm: that special circumstances justify the Senate’s thwarting of an exercise of Article II power, namely appointment of a Supreme Court justice. There exists, therefore, in Mitch McConnell’s Senate, no constitutional impediment to delaying – temporarily or permanently – the confirmation of a justice in the face of special circumstances.

Read more

In recent days, the rumor has zinged around Washington that Trump will fire Mueller on December 22, as Congress leaves town for the holidays.

The speculation is fueled by the notion that the investigation is nearing a crescendo that requires Trump to act now or face dire consequences. The accumulating evidence against Trump, his family, and his allies, complemented by a barrage of right-wing media and Congressional assaults on the legitimacy of Mueller and the FBI, buttress the notion that Trump’s allies are preparing the ground for imminent bloodletting.

I don’t buy it. Predicting Trump’s behavior is a fool’s errand. He acts impulsively, and often seems not to know in the morning what he’ll do in the afternoon. But, firing Mueller would provoke an existential crisis for Trump’s presidency. Politicians on the left and right have cited Mueller’s firing as a red line that Trump cannot cross without provoking a constitutional crisis that will put him on the path to impeachment. Trump may calculate, with some reason, that many on the right will back down, and that Republican leaders in the House will not follow through on impeachment proceedings. Regardless, firing Mueller would constitute a declaration by Trump that he is above the law. It would give the public reason to rally even more furiously in opposition to him. Firing Mueller, therefore, would be a high-stakes roll of the dice. Read more

Today’s announcement’s that Paul Manafort and Rick Gates have been indicted by a grand jury on tax, money laundering, foreign agent registration, and lying charges rocked D.C. The White House predictably responded that none of the charges involved conduct during the Trump campaign. In reality that should be one of the most chilling parts of today’s announcement for the White House.

The Manafort and Gates indictments show that Mueller interprets his charge as going well beyond punishing conduct directly connected to campaign activity. His willingness to seek tax and money laundering charges based on conduct that occurred before the campaign lets Trump know that his past financial and business operations are subject to investigation. A man who has made millions by selling wildly overpriced properties to Russian oligarchs and has bragged about his ability to stay one step ahead of the IRS should now be rethinking the wisdom of running for president. It’s not looking as if it will end well. Jared Kushner’s financial life is also under Mueller’s microscope. Read more

Every day that President Trump occupies the Oval Office brings new threats to our democracy.

Whether he is tweeting us toward nuclear war, undermining the freedom of the press, assaulting the environment, abusing civil rights, or nominating yet another irresponsible, far-from-the-mainstream candidate to the federal judiciary, the sense of urgency to remove him from his perch grows. Reasonable people grow impatient, which encourages journalists to hype events that we might all like to see, but are very unlikely to occur. This is not the dreaded fake news; just wishful reporting and analysis.

Two events this week triggered this reflection. First, Carter Page announced that he would not cooperate further with the Senate Intelligence Committee’s investigation and would plead the Fifth Amendment in response to efforts to compel him to do so. Page complicated his posture by demanding an opportunity to appear at a previously scheduled hearing on November 1. That demand is most likely public posturing. If he were subpoenaed to appear, he would surely plead the Fifth. Read more

As the Russia investigations advance, it becomes important to think about the denouement.

There will be time to discuss the merits of indictments and impeachment. For now, though, it is essential to think about preparing the public to absorb what emerges from Special Counsel Mueller and Congress. Most of this burden rests with Congress.

A troubling scenario holds that shockingly bad things emerge from the investigations and an uninformed, ill-prepared and overwhelmed public simply shakes them off as more noise in this already loud era. Trump has been working to make this happen by demeaning regularly the entire Russia enterprise as a hoax and a witch-hunt. His strategy seems clear: undermine the legitimacy of the investigations in preparation for the bad news to come. Read more