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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PRIVACY POLICY
| SITE BY being wicked
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
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