Three Dimensional Chess
(I took a little break last week, heading to North Carolina for Merlefest – a Bluegrass Festival – with three of my favorite people. Back home now and a lot’s gone on – time to get back to work!)
This week the President’s team leaked a summary of notes taken in a meeting with the Mueller team. The topic: will the President answer questions from Special Counsel Mueller. Further leaks reveal that when negotiations over the “interview” (shades of a movie about North Korea – maybe there are more similarities than we think) got tough, the Mueller team suggested they would subpoena the President. This would be unprecedented.
John Dowd, then the lead counsel for the President and since resigned, stated: “This isn’t some game – you are screwing with the work of the President of the United States.”
But in a sense, it is a game: a game with the most serious consequences. The subject of the investigation is ultimately the President of the United States, Donald Trump, who in reality, is accused of conspiring with the Russian Government to change the results of the 2016 election. While the legal niceties suggest that the President is a “subject” not a “target” of this investigation, that distinction has more to do with the consequences of a criminal indictment of a sitting President than the actual evidentiary outcomes.
The opposition: currently Robert Mueller, Special Counsel of the Department of Justice, who has been charged with determining what happened between the Trump campaign and the Russian Government during the 2016 election. Mueller is supervised by the Deputy Attorney General Rod Rosenstein; put in that role by the recusal of Attorney General Jeff Sessions who was involved in the Trump campaign.
What could be the outcome of this game? The Mueller team could issue a report, essentially an indictment, to the House of Representatives, stating that the actions of the President should result in criminal charges, and only the Constitution prevents him from being dragged “before the bar.” Since the judicial system isn’t available, the Constitution calls on Congress to deal with a President who committed “…high crimes and misdemeanors.” Mueller could call for the impeachment and removal of the President.
This is the ultimate consequence.
The leak of the possible questions originally looked like it came from the Mueller team. As such it would be a first, as Mueller has been completely tight lipped about the progress of the work, communicating only in court through filings. The only reason it seemed like a Mueller leak, is the questions were limited to directly Russia and election related issues. There were no questions about Trump’s taxes, previous investments, or business affairs. The topics all were “within the lane” of the Russia investigation, and didn’t cross the “red lines” that Trump himself had stated might serve as grounds for firing Mueller.
But it was leaked by the President’s side. While we don’t know the direct source, it has been established that these were questions developed by the President’s attorney Jay Sekulow from the topics of the Mueller meeting. And while the leak didn’t seem to serve the President’s cause, it did provide two new items of information about the investigation.
First, the topics and questions implied that there was evidence that Trump campaign manager Paul Manafort was in direct contact with the Russian Government looking for aid to the Trump campaign. This would be a direct sign of conspiracy (collusion is the President’s term, but it has no legal consequence.)
And second, the Mueller team was looking at the use of possible Presidential pardons to obstruct the investigation, particularly with General Mike Flynn. This “dangling” of pardon in order to keep Flynn from cooperating with the Mueller team, was supposedly done by lead Presidential counsel John Dowd, who resigned from the White House team shortly after the March meeting with Mueller.
So if Mueller didn’t leak this information, and it seems to benefit the Mueller case, then what was the “President’s team” thinking by putting it out there?
President Trump, using his preferred means of mass communication, has called the investigation a “witch hunt” or stated that there was “no collusion” six times in the past day. The Presidential team, stating that Trump is a “subject” not a “target” of the investigation, asks why there are questions about Trump’s direct actions involving the campaign and Russia. If he’s not a target, then why are they asking these questions?
It’s a call to their base, who already have concluded that the investigation is a “witch hunt” and that there was “no collusion.” Fox News has made it very clear, and the set of “facts” the Trump base uses supports that claim. So when the President refuses to be questioned, or perhaps even invokes his Fifth Amendment right against self-incrimination, his base will accept his actions as necessary and proper for a man being hounded by the “deep state” and “Clinton/Obama Democrats.”
In the meantime, the leaked topics will lend further fire to the radical Republican Freedom Caucus members, who already have drafted articles of impeachment – for Rod Rosenstein. If they can involve him in a hearing defending himself, they can then call for his removal from supervision of the Russia investigation. The President doesn’t have to fire Rosenstein, an impeachment hearing will force his recusal.
Rosenstein himself has responded, calling out the Freedom Caucus for leaking the impeachment articles anonymously. He has made it clear that as the Deputy Attorney General he will continue to “…protect and defend the Constitution” and follow the facts to their conclusion.
Paul Ryan, the lame-duck Speaker of the House, could put an end to the Freedom Caucus foolishness. But he probably won’t, as it might trigger an inside battle for the Speakership, a job Ryan wants to “gracefully leave” next January. It’s about Ryan staying under the radar, and not taking a stand.
So what’s the next move in this game.
New Presidential attorney Rudy Guiliani, far more politician than legal scholar at this point, will try to manipulate the public perception of the investigation. While for everyone else there are serious legal consequences to federal charges, to Guiliani’s client, the President, there are only political ones. Impeachment is a political process in the Congress, and subject to the “whims” of the voters as much as the facts of the case. Keeping the Trump base activated and voting keeps the pressure on Republican Congressmen, and ultimately Senators, to avoid impeachment and trial.
The leak also puts emphasis on impeachment, a goal for Republican campaign strategists. They believe that if Democrats can be forced to run on the question of impeachment, it will energize the Trumpian base to come out and vote to defend their man. Since he isn’t on the ballot, voting for the Republican candidate for the House or Senate is the next best thing, and keeps Trump from facing Congressional consequences.
Democrats recognize this strategy as well, and are trying to keep the investigation at arms length while they campaign on the impact of the tax cuts and other cultural issues. They aren’t much help to Mueller, but would be should they gain control of one or both houses of Congress.
And the Mueller team: they will continue to do what they’ve always done, keep their heads down and proceed with the investigation. Regardless of the political consequences, they will conclusively let the nation know what happened between Trump and the Russians, particularly in the 2016 election. And ultimately, it will be up to the people of the United States to provide the political will to go from there.
