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Friday, April 10, 2020




THE ART OF POLITICS
COMPILATION AND COMMENTARY
BY LUCY WARNER
APRIL 10, 2020


HERE IS AN ANALYTICAL ARTICLE ON WHAT WENT WRONG AND SOME WAYS TO FIX IT. BELOW IT IS THE MAGAZINE JACOBIN’S COMMENTS ON FORMER VICE PRESIDENT BIDEN’S TWO ATTEMPTS, SO FAR, TO COME TO MEET BERNIE. IT CERTAINLY ISN’T AT THE HALFWAY POINT, THOUGH. WHAT WILL PROGRESSIVES DO?

After Bernie Sanders: Progressives take stock after they fall short again
By Gregory Krieg and Annie Grayer, CNN
Updated 8:01 PM ET, Thu April 9, 2020

(CNN)Bernie Sanders launched his first presidential campaign in near obscurity. He ended his second on Wednesday having inspired a movement that changed American politics.

Sanders never fully embraced the Democratic Party, even as he sought its nomination. But many in the party -- including the voters who cast a ballot for another candidate this year -- have largely embraced his ideas. Ultimately, however, Sanders' message outperformed his campaigns.

Now it's up to a new generation of progressive leaders to do what he could not: win. One of their first tasks will be to look back and determine what the next standard bearer can learn from Sanders' efforts -- identifying what worked, what didn't, and how to tell the difference.

PHOTOS: Former presidential candidate Bernie Sanders

It is a big question. New York Rep. Alexandria Ocasio-Cortez joked to CNN that you could fill a "thesis" trying to answer it. Still, she took a stab -- offering five lessons.

"The electorate is quite willing to support so-called 'radical' policies when they are properly framed and explained; there is enormous potency in movement candidacies; intersectionality is only going to get more important as the electorate diversifies; we can and should lean into building stronger, broader multiracial and intergenerational coalitions."

Visit CNN's Election Center for full coverage of the 2020 race

She concluded, pulling it all together: "Who the candidate is and when they're running shapes all of that."

Pieces of Ocasio-Cortez's outline popped up in interviews about Sanders' exit, and what it means for the movement he galvanized, with more than a dozen leading progressive activists, operatives, writers and elected officials. Like Ocasio-Cortez, they all drove -- by one route or another -- toward the same point: the importance, from the candidates to the voters, of broadening and diversifying the new progressive coalition.

Sanders, as a candidate, ultimately failed to translate the popularity of his politics into electoral success. And in a year when Democrats routinely put denying President Donald Trump a second term as their top priority, Sanders -- by his own admission -- failed to convince primary voters that he was the best positioned to do it.

A missed opportunity

PHOTOGRAPH -- Democratic presidential candidate Sen. Bernie Sanders (I-VT) and his wife Jane Sanders wave to the crowd at the end of a campaign rally at Vic Mathias Shores Park on February 23, 2020 in Austin, Texas.

Sanders the candidate often struggled to keep pace with public support for his signature policies. But for a week in late February, after he won the Nevada caucuses, the gap appeared to be closing -- the nomination coming into reach.

But the tide would turn fast, and Sanders was beaten back again from the shore.

The week between Nevada and the next primary, in South Carolina, presented an opportunity for Sanders -- whom many at the time believed was cruising to victory -- to reach out and attempt to bring on board, or at least give pause, to some of the same figures who would ultimately rally behind Biden.

Instead, Sanders doubled down on his rhetoric attacking the party establishment. A source close to the campaign, frustrated after an underwhelming showing on Super Tuesday, boiled over in frustration at Sanders' refusal to step out of his comfort zone and attempt to persuade potential allies.

"I think a big part of what it could be doing, that he's not doing, is leaning into a lot of the stuff that makes him uncomfortable, which is obviously media and politics. There's a rejection of doing, the typical political game. Calling people, doing the work that needs to be done to get endorsements, to get momentum," the source said. "We need more people involved. We need more people to feel connected to this thing."

Ahead of the South Carolina primary, Sanders did not personally ask for influential Rep. Jim Clyburn's support, which eventually -- and perhaps inevitably -- went to Biden shortly before the primary.

Asked by MSNBC's Rachel Maddow why he did not even attempt to court Clyburn, Sanders suggested it would have been a futile effort.

"Jim is a very nice guy, I like him and respect him -- his politics are not my politics," Sanders said. "And I respect him, but there's no way in God's earth he was going to be endorsing me."

The episode underscored one of the Sanders campaign's fatal flaws -- an inability to expand its base of support by means of persuasion. Though his coalition was more diverse than in 2016, due in large part to the campaign's targeted and sustained outreach to Latinos, it again fell short of its own rhetoric.

A stinging rejection

PHOTOGRAPH -- Democratic presidential candidate Sen. Bernie Sanders (I-VT) speaks during a campaign rally at the University of Houston on February 23, 2020 in Houston, Texas.

A week after Nevada, Biden stormed to victory in South Carolina by nearly 30 percentage points over Sanders, whose campaign kicked in a late half-million dollars in ad spending hoping to keep the margin in single digits. Like in 2016, black voters down South asserted themselves and rejected the senator from Vermont.

"The most urgent task for the progressive movement is to build a deeper relationship with the African-American community and leaders who have been the true agents of social change in American history," California Rep. Ro Khanna, a Sanders campaign co-chair, told CNN. "We need to sit down with people like Jim Clyburn, Karen Bass, Cedric Richmond, Bennie Thompson, Robin Kelley, Maxine Waters and Barbara Lee with humility and respect to understand how we strengthen the bonds between progressives and the black community."

Ana Maria Archila, the co-executive director of the Center for Popular Democracy, which endorsed Sanders, offered a similar prescription.

"It is possible to build a progressive, multiracial coalition of working class people of all races," Archila said. "But in order to win a national election, progressive coalitions need to resonate and have authentic and deep relationships with black communities and leaders, especially in the South. We will not win if we cannot win in black communities."

Biden's dominance with black voters underscored the persistence of a problem the new leftists will have to untangle in the months and years to come.

"The progressive wing of the party," Archila said, "needs to be more serious about nurturing and supporting women and people of color to run at all levels."

In the meantime, Biden used those shortcomings to cast Sanders' anti-establishment message as an affront to voters of color in South Carolina.

"The establishment are all those hardworking middle-class people, those African Americans," Biden said. "They are the establishment!"

Louisiana Rep. Cedric Richmond, a Biden campaign co-chair, hammered home the message: "I just did not know that African Americans in the South were considered part of the establishment," he said.

A more welcoming movement

As the Sanders campaign learned during the unraveling after South Carolina, there is no path to power without winning over open-minded moderates.

But by then, the time for aggressive outreach had long passed. Sanders was attempting to complete a hostile takeover of the party and his derisive references to its "establishment" -- an amorphous term that means different things to different people -- turned off voters who might have been willing to give him a hearing.

In a tweet on April 1, as the window was closing on the campaign's hopes, its deputy distributed organizing director, Jack Califano, zeroed in on a tendency that has undermined the left's work to grow its ranks.

"In order to win, we will need to communicate our ideas in a way that feels both safe and exciting to people who don't self identify as 'socialists,'" Califano wrote. "If we mistake that effective messaging for a betrayal of our cause, we will never expand our base, & we will never win."

Sanders himself repeatedly acknowledged that the popularity of his ideas were not translating to electoral success.

"We are losing the debate over electability," Sanders said at a press conference in Burlington, Vermont, on March 11, a day after losing five out of six contests.

"I cannot tell you how many people our campaign has spoken to who have said, and I quote, 'I like what your campaign stands for, I agree with what your campaign stands for, but I'm going to vote for Joe Biden because I think Joe is the best candidate to defeat Donald Trump,'" Sanders said. "We have heard that statement all over this country. Needless to say, I strongly disagree with that assertion. But that is what millions of Democrats and independents today believe."

Ultimately, Sanders' strengths as a political figure -- his consistency and stubbornness in support of progressive ideals -- also manifested as weaknesses on the campaign trail.

He acknowledged that his inability to "tolerate bull**** terribly well," do the common political "backslapping," or offer the most mundane "pleasantries" was a source of "self-criticism."

But the campaign's difficulty in coalition-building was also frequently outside of its control.

From the outset of the campaign, Sanders, in private and publicly, pushed for his supporters and surrogates -- especially online -- to take a more civil tone with opponents. Too often, though, they ignored his entreaties and actively sought to kick off feuds that would, over time, create a self-defeating cycle that obscured the candidate's message and alienated would-be allies.

In January, Sanders supporters angry at Warren for maintaining, over his denials, that he told her a woman could not win the presidency, launched a Twitter campaign that included hashtags like #WarrenIsASnake and filled her replies with snake emojis.

When Warren dropped out of the race less than two months later, she decided not to endorse his campaign -- or absolve Sanders of personal responsibility for his supporters' behavior.

"You know, I shouldn't speak for him," she said. "It's something he should speak for himself on."

The Sanders campaign kept a respectful distance from the endorsement question, but segments of the pro-Sanders media and high profile online supporters pilloried her for the decision -- unwilling to accept any role in poisoning the waters, while turning indignant at the suggestion that the episode might have affected Warren's thinking.

When Ocasio-Cortez sent Warren a friendly tweet after the Massachusetts senator's appearance on "Saturday Night Live," she too came under criticism from segments of the online left.

A new, immediate test

Biden, no longer competing with other moderates to establish himself as their pick, has over the past few weeks sought to make inroads with Sanders' supporters.

On Wednesday, he put out a statement -- a 758-word Medium post -- applauding Sanders ("he doesn't get enough credit") and his supporters ("I see you, I hear you") for their work. Biden's team is clearly intent on forging a peace with the left, which has already begun its efforts, independent of Sanders, to extract commitments going forward -- a key test that could, if Biden wins, allow progressives to get a toehold in the halls of power.

On Wednesday afternoon, eight leading progressive groups sent an open letter to Biden, pledged their commitment to "ending a presidency that has set the clock back on all of the issues that impact our lives," while warning the former vice president that campaigning against Trump on a "return to normalcy" message would be a loser with young voters.

They appended a corresponding list of requests focused on policy, but also personnel -- asking Biden to "appoint elected leaders who endorsed Bernie Sanders and Elizabeth Warren as co-chairs of his transition team." Reps. Pramila Jayapal and Khanna, from Sanders' camp, and Warren-backing Reps. Ayanna Pressley and Katie Porter were the specific names given.

Philip Agnew, co-founder of the Dream Defenders and a senior adviser to Sanders during the campaign, suggested that an enduring legacy of the Sanders campaigns is the normalization of ideas that had been dismissed in mainstream politics for decades.

"We now know that we are actually not in the minority. That the left and the left values are embraced and appreciated and demanded really by more than half of this country," Agnew said, pointing to the poll numbers showing the popularity of policies like Medicare for All. "So we can't unknow that now. And I think the organizing is only going to get stronger from there."

That the left is able to make credible demands of the establishment center, in this case a former vice president and presumptive Democratic nominee, is a remarkable achievement in its own right.

Micah Uetricht, managing editor of Jacobin magazine and co-author, with Meagan Day, of the book "Bigger than Bernie," argued that defeat in the primary should not overshadow a fundamental shift authored, in large part, by Sanders' successes.

"Millions of Americans got behind a grouchy, rumpled old democratic socialist who wouldn't stop talking about class struggle," Uetricht said. "Progressives, Berniecrats, socialists, and everyone who makes up the broad left shouldn't shy away from that kind of rhetoric in the future."

Sanders, too, has shown no signs that he plans to pull back from the fight over the party's platform in 2020.

When announcing his departure from the race, Sanders said he would remain on the ballot going forward as a means of amassing delegates in order to "exert significant influence over the party platform and other functions."

"He's not going to adopt my platform," Sanders said of Biden in an interview Wednesday night with Stephen Colbert. "I got that, alright? But if he can move in that direction, I think people will say, you know what, this is a guy I think who we should support and would support."



HERE IS WHAT JACOBIN MAGAZINE THINKS OF BIDEN’S ATTEMPTS TO PLACATE, MAKE PEACE, AND GET VOTES.

Biden’s First Concessions to the Left Are Pathetic
BY KALEWOLD H. KALEWOLD
04.10.2020

Joe Biden will need to win over the vast majority of Sanders supporters if he wants to defeat Trump. But his campaign’s first effort proves he’d rather risk losing than embrace even a fraction of the Sanders program.

PHOTOGRAPH -- Joe Biden speaks during a campaign event on Monday in Dallas, Texas. (Ron Jenkins / Getty Images)

Joe Biden has unveiled his first two policy concessions to Bernie Sanders supporters as part of his effort to consolidate Democratic support. And they’re pretty bad.

On health care, Biden plans changes to Medicare where “Americans would have access, if they choose, to Medicare when they turn sixty, instead of when they turn sixty-five.”

The choice of new eligibility age is baffling. Fifty-five to sixty-five year olds have the highest median incomes and sixty to sixty-five year olds have the highest household wealth. For the median worker, the period immediately before retirement represents the peak of their earnings and wealth. While this change would no doubt benefit many low-income or unemployed people in an age group that has a hard time on the labor market, it is the least progressive age group as a whole to target for free health care. Biden unveils this plan in the midst of a pandemic-induced recession that has kicked millions off their health insurance, with a recent poll finding 35 percent of those under forty-five have lost health coverage.

Lowering the eligibility age to sixty also does nothing to alter the politics of Medicare expansion. Sixty to sixty-five year olds are already only a few years away from Medicare eligibility and will have no incentive to push for further expansion. Biden proposes to finance the lower eligibility out of “general revenue,” meaning the financially most well-off age segment would receive free public insurance. Distributionally, this potentially involves significant upwards redistribution with little overall political or economic benefit.

By contrast, expanding Medicare to children — as in the Medicare-for-Kids proposed in the People’s Policy Project’s Family Fun Pack — would be progressive and politically fruitful. This proposal would ease the financial burden on states — which already insure nearly 40 percent of children through the hard-to-lose Medicaid and CHIP programs — and of course young families. This would simultaneously create a constituency to further expand Medicare as people age out while bringing tens of millions of people into public insurance at comparatively little cost.

Biden’s second proposal involves forgiving some student debt for “low-income and middle-class people for undergraduate public colleges and universities, as well as private Historically Black Colleges and Universities (HBCUs) and private, underfunded Minority-Serving Institution (MSIs).” While this is significantly better than Kamala Harris’s now infamous proposal, it fails to capture many borrowers in need of relief by opting for yet another convoluted eligibility structure. Most significantly, it excludes attendees of for-profit colleges and universities, who are among the most distressed student borrowers.

For-profit colleges enroll less than 9 percent of students, but account for 25 percent of student borrowing and nearly half of all student loan defaults. If the purpose of student debt forgiveness is to provide relief to working- and middle-class borrowers, excluding for-profit colleges seriously undermines that effort. In fact, a strong case can be made that the federal government has the greatest responsibility to borrowers who attended for-profit institutions. The entire business model of for-profit colleges involved enrolling as many students as possible and loading them up with debt, often targeting students of color, immigrants, and veterans. The government’s lax enforcement of even the barest education standards has left countless students in worse financial shape than had they not attended these institutions at all.

Sanders’s platform embraced universality and comprehensiveness across the board in his bid to transform the American welfare state. Instead of adopting one or two of his proposals, Biden seeks to introduce yet another incoherent set of means-tested programs.

Biden could have opted for popular policies like universal childcare or a child allowance, the latter of which has even been proposed by Republicans like Mitt Romney. Instead, these overtures represent nothing more than the same tortured and conservative approach of the Democratic Party to the welfare state. They end up excluding a large share of those most in need and create no political opening for further expansion — it potentially accomplishes the opposite by setting one group of wage earners against the other. If this is what Biden starts with, it would likely end up even worse as it gets dragged to the right during legislation.

Biden cannot afford to bungle his outreach to Sanders supporters. According to the latest Monmouth poll, Biden is tied with Trump for eighteen to thirty-four year olds: the demographic who supported Bernie strongest of all. The same poll this time in 2016 had Clinton up twenty-three points on Trump with that age group. It would be a mistake to think Sanders’s supporters will take whatever is offered and fall in line. Nobody expects Biden to adopt Sanders’s whole platform. But his campaign should take Sanders’s social-democratic approach more seriously than these proposals suggest.

ABOUT THE AUTHOR
Kalewold H. Kalewold is a PhD student in philosophy at the University of Maryland, College Park.



EMBEDDED IN THE JACOBIN ARTICLE ABOVE IS AN ADVERTISEMENT FOR A BOOK ON POLITICAL INTRIGUE AND WORSE AS A BASIC WAY OF ACHIEVING AND HOLDING POWER. A PROFESSOR OF MINE SAID THAT MACHIAVELLI’S CLASSIC WORK, THE PRINCE, WAS A VERITABLE TEXTBOOK ON TOOLS OF POWER FROM DIRTY TRICKS TO MURDER, AND THAT IT WAS WRITTEN BY MACHIAVELLI IN ORDER TO GET THE ATTENTION OF A NOBLEMAN WITH WHOM HE WANTED A POSITION. RELATED TO THAT FASCINATING TECHNIQUE, READ THE ARTICLE BELOW ON ATTY. GEN WILLIAM BARR’S OWN ACTIONS IN RELATION TO PRESIDENT TRUMP. https://www.lawfareblog.com/bill-barrs-very-strange-memo-obstruction-justice.

Machiavelli
The Art of Teaching People What to Fear
by PATRICK BOUCHERON
Translated by WILLARD WOOD

A NEW YORK TIMES EDITORS’ CHOICE

In a series of poignant vignettes, a preeminent historian makes a compelling case for Machiavelli as an unjustly maligned figure with valuable political insights that resonate as strongly today as they did in his time.

Whenever a tempestuous period in history begins, Machiavelli is summoned, because he is known as one for philosophizing in dark times. In fact, since his death in 1527, we have never ceased to read him to pull ourselves out of torpors. But what do we really know about this man apart from the term invented by his detractors to refer to that political evil, Machiavellianism?

It was Machiavelli’s luck to be disappointed by every statesman he encountered throughout his life—that was why he had to write The Prince. If the book endeavors to dissociate political action from common morality, the question still remains today, not why, but for whom Machiavelli wrote. For princes, or for those who want to resist them? Is the art of governing to take power or to keep it? And what is “the people?” Can they govern themselves? Beyond cynical advice for the powerful, Machiavelli meditates profoundly on the idea of popular sovereignty, because the people know best who oppresses them.

With verve and a delightful erudition, Patrick Boucheron sheds light on the life and works of this unclassifiable visionary, illustrating how we can continue to use him as a guide in times of crisis.

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DID BILL BARR DO THIS BECAUSE HE HAD READ AND ADMIRED THE PRINCE, OR BECAUSE DOING THIS IS ACTUALLY FAR MORE COMMONPLACE THAN WE KNOW? I HOPE THAT IS NOT THE CASE, BUT I BELIEVE IT PROBABLY IS. IT ISN’T ACCEPTABLE, EVEN IF IT IS “REALISTIC,” AND IF IT DOESN'T AT LEAST CAUSE A SCANDAL, WE HAVE FALLEN FAR.

FEDERAL LAW ENFORCEMENT
Bill Barr’s Very Strange Memo on Obstruction of Justice
By Mikhaila Fogel, Benjamin Wittes
Thursday, December 20, 2018, 7:04 PM

PHOTOGRAPH -- Attorney General Bill Barr and Vice President Dan Quayle with President George H. W. Bush. (Source: George Bush Presidential Library and Museum)

The memo on obstruction of justice by Bill Barr, the once and future attorney general, is a bizarre document—particularly so for a man who would supervise the investigation it criticizes.

As the Wall Street Journal first reported, Barr, whom the president has nominated to succeed Jeff Sessions as attorney general, sent the unsolicited memo—dated June 8, 2018—to Deputy Attorney General Rod Rosenstein to offer his view of Special Counsel Robert Mueller’s investigation into possible obstruction of justice by the president. The document elicited questions over whether Barr would need to recuse himself from overseeing the investigation as attorney general, along with outrage from congressional Democrats: both Senate Minority Leader Chuck Schumer and Sen. Mark Warner, the ranking member on the Senate intelligence committee, have demanded that Trump withdraw Barr’s nomination. Sen. Dianne Feinstein of the Senate Committee on the Judiciary described the memo as “troubling.”

But the legal quality of the memo itself is a different question. Over at Just Security, Marty Lederman has what he describes as a “first take” on Barr’s memo, which is to say a detailed critique of it on both constitutional and statutory grounds. On National Review’s website, by contrast, Andrew McCarthy declares the memo a “commendable piece of lawyering” and “exactly what we need and should want in an attorney general of the United States.”

Whatever Barr’s memo is, it is not that. Because whether one agrees with his view of the law (as does McCarthy) or recoils at it (as does Lederman), one thing attorneys general of the United States should certainly not do is make up facts. And ironically for a memo laying out the argument that Bob Mueller has made up a crime to investigate, the document is based entirely on made-up facts. Lederman mentions this point at the outset of his analysis:

the first huge and striking problem with Barr’s memo is that he unjustifiably makes countless assumptions about what Mueller is doing; about Mueller’s purported “theory” of presidential criminal culpability; about Mueller’s “sweeping” and “all-encompassing” “interpretation” of the statute and Constitution; about “Mueller’s core premise[s]”; . . . about “unprecedented” steps Mueller is proposing to take; about “Mueller’s proposed regime”; about “Mueller’s immediate target”; about Mueller’s presumed failure to “provide a standard” for what constitutes “corruptly” trying to impede proceedings; about Mueller’s “demands” that the President submit to interrogation; etc.

To read this memo, you’d think Barr were replying to a legal brief that Mueller had submitted in support of a prosecution of the President for obstruction of a federal proceeding. Yet as Barr concedes at the outset, he was “in the dark about many facts.” Indeed, he presumably was “in the dark” about virtually everything he wrote about. From all that appears, Barr was simply conjuring from whole cloth a preposterously long set of assumptions about how Special Counsel Mueller was adopting extreme and unprecedented-within-DOJ views about every pertinent question and investigatory decision—and that Deputy Attorney General Rosenstein was allowing him to do so, despite the fact that Mueller is required to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice” and to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.”

Indeed, it is not an exaggeration to say that Barr’s entire memo is predicated on two broad assumptions: first, that he knows Mueller’s legal theory, and second, that he understands the fact pattern Mueller is investigating. “It appears Mueller’s team is investigating a possible case of ‘obstruction’ by the President predicated substantially on his expression of hope that the Comey [sic] could eventually ‘let ... go’ of its investigation of Flynn and his action in firing Comey,” Barr writes in his second paragraph.

Neither assumption is, in our judgment, warranted. Unlike Barr, we don’t purport to know what Mueller’s obstruction theory is. It’s a subject about which one of us has been puzzling over a long period of time and in a number of articles. We also don’t purport to know what fact patterns Mueller is focusing on. But here’s a limb onto which we are prepared to venture: the reality is more complicated than the facts Barr has “assumed” for purposes of predicating nearly 20 pages of legal analysis. In fact, it’s a lot more complicated.

Barr assumes for the purpose of his memo that Mueller is only interested in presidential conduct sanctioned by Article II, specifically that his investigation revolves around Trump’s actions toward Comey. “As I understand the theory,” he writes, Mueller’s team has built their case on a novel and, in his view, unsupported interpretation of 18 U.S.C. § 1512(c)(2), the “residual clause” of § 1512, which prohibits witness tampering. § 1512(c)(2) holds that, “Whoever corruptly … otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction”—and Barr is concerned that Mueller is interpreting it to sanction an overly broad range of behavior.

Moreover, Barr takes the view that a facially lawful action taken by the president under his Article II authority cannot constitute obstruction as a matter of constitutional law. He expresses concern that allowing this interpretation to proceed could have “disastrous implications” for the executive branch and the presidency, potentially opening the door to criminal investigations of “all exercises of prosecutorial discretion.” He also writes, “if a [Justice Department] investigation is going to take down a democratically-elected president it is imperative… that any claim of wrongdoing is solidly based on a real crime—not a debatable one.” (All emphases in original).

It’s not clear why Barr adopts such a simplistic understanding of Mueller’s operating theory, but the sequence of events leading up to his submitting the memo in early June may offer some insight. At some point, probably in March or April of this year, the president’s legal team received a list of subjects that the special counsel’s office wanted to discuss with Trump in an interview. In late April 2018, the New York Times published a condensed list of those questions.

Several weeks later, on June 2, the Times published a letter from Trump’s then-lawyer, John Dowd, to Mueller, in which Dowd responded to Mueller’s request to question the president regarding 16 areas of interest—which essentially mirrored the reported list of questions. In that letter, Dowd explained to the special counsel why he is advising against the president granting the interview, including that he does not believe there is a cognizable offense for an obstruction investigation under 18 U.S.C. § 1505, which prohibits tampering with evidence and impeding legal “proceedings.” Dowd argued both that the president’s actions were authorized by Article II of the Constitution and that an FBI investigation does not count as a “proceeding.” His letter was mocked by a number of commentators on this latter point; Charlie Savage at the Times pointed out that by citing § 1505, instead of § 1512, Dowd was making things easy for himself. § 1512, unlike the statute Dowd cited, does not require that a proceeding be pending.

The Dowd letter, despite its flaws, sparked a certain amount of speculation in conservative media that Mueller lacked an actual crime to investigate—at least as to the obstruction cone of his investigation. A few days after the Times published the Dowd letter, for example, the National Review stated in an editorial that “The letter implies that these two events [the request to Comey regarding Flynn and his subsequent firing] remain the gravamen of the special counsel’s obstruction probe. If that is so, there is no obstruction case.” The editorial goes on to say that, “a prosecutor may not charge obstruction based on the president’s exercise of his constitutional prerogatives.” And it asserts that, in both instances, the president was acting within his constitutional authority:

In short, unless there is a smoking gun against the president that is lurking unseen even in the private jousting between Trump’s team and Mueller, the special prosecutor should be wrapping up the obstruction aspect of his probe rather than extending it via a court fight over the president’s testimony.

In was against this backdrop, on June 8, that Barr sent his memo to Rosenstein and Assistant Attorney General for the Office of Legal Counsel Steven Engel, a memo that shifts the discussion from § 1505 to § 1512 but also adopts the working understanding of the obstruction theory from Dowd’s letter.

The problem is that the facts are almost certainly more complicated than that.

Looking back at the New York Times list of subjects Mueller sought to discuss with Trump, many of those topics go well beyond core Article II-authorized management of the executive branch. For example, Mueller wanted to ask about what Trump knew “about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016.” Why Flynn lied about his communications with Kislyak is one of the key questions at issue in the case. And Barr himself makes clear that if a president induces someone to lie, that’s not an act protected by Article II.

Analysis of Trump’s inducing Flynn to lie would, of course, involve facts not in evidence, and it would almost certainly involve a different statute. But that’s precisely the point. How does Barr know what conduct Mueller is focused on or under what law?

There are other such examples—a number of them, in fact. Mueller wants to discuss “efforts . . . made to reach out to Mr. Flynn about seeking immunity or possible pardon.” That sounds more like a witness tampering investigation than a broad theory of obstruction under § 1512(c)(2). Mueller appears to want to discuss Trump’s efforts to get intelligence community leaders to lean on Comey to drop the Flynn matter and his “reaction to the news that [Mueller] was speaking to” those leaders. He’s also interested in the public bullying of Sessions and FBI Deputy Director Andrew McCabe, both fired. Again, why is Barr so sure this is all a broad “residual” § 1512 theory of obstruction?

It may well be that Mueller’s theory of the case involves a narrower conception of what Article II permits the president to do than that which Barr holds. But our suspicion is that Mueller is looking not narrowly at the specific acts on which Dowd and Barr focused, but on a broader pattern of activity, some but not all of which involves facially valid exercises of Article II powers.

At a press conference today, Rosenstein declared that the Mueller investigation “is being handled appropriately.” When asked to weigh in on the memo, Rosenstein said that, “Bill Barr was an excellent attorney general during the approximately 14 months that he served in 1991 to 1993” and he predicted that he “will be an outstanding attorney general when he is confirmed next year.” But he added that the department’s handling of the obstruction matter has been “informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.”

We suspect those “actual facts” will complicate the Article II analysis—both the facts under investigative scrutiny and the facts as to the range of statutes against which that evidence is being considered.

Editor's note: This piece has been edited to clarify the description of Barr's argument.

Topics: Federal Law Enforcement, The Russia Connection
Tags: William Barr, Obstruction of justice


PHOTOGRAPH -- Mikhaila Fogel

Mikhaila Fogel is an associate editor at Lawfare and a research analyst at the Brookings Institution. She previously worked as a legislative correspondent for national security and foreign affairs issues in the Office of Sen. Susan Collins. She holds a bachelor’s degree from Harvard College, where she majored in history and literature and minored in government and Arabic.
@MikhailaRFogel

PHOTOGRAPH -- Benjamin Wittes

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
@benjaminwittes



THIS VIDEO SUMMARY OF THE PRINCE IS ENTERTAINING, THOUGH VIEWS THAT RESEMBLE MACHIAVELLI’S ARE SHOCKING, NOT BECAUSE THEY ARE UNSEEN TODAY BUT BECAUSE THEY ARE RECOMMENDED PROCEDURE. I WONDER IF THERE ISN’T A SLY, DARK HUMOR IN THE ADVICE HE GIVES.       

FOLLOWING THE SCHOOL OF LIFE’S SHORT VERSION ON YOUTUBE IS A THREE HOUR VIDEO WHICH SOUNDS HELPFUL TO THOSE OF US WHO DON’T PLAN TO READ THE WHOLE BOOK. THERE IS ALSO ONE THAT LASTS FOR OVER FIVE HOURS IF YOU PREFER. FOR THE THREE HOUR VERSION, GO TO: https://www.youtube.com/watch?v=IdRxHTih-28.  

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POLITICAL THEORY - Niccolò Machiavelli
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Machiavelli's name is a byword for immorality and political scheming. But that's deeply unfair. This was simply a political theorist interested in the survival and flourishing of the state. Please subscribe here: http://tinyurl.com/o28mut7
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