Saturday, March 30, 2019

Investigations and elections

I am withholding any comment on the Mueller report in the hope that we will in fact get to see it.  In the meantime I could speculate a great deal about what it might and might not say, and I could return to things I have said previously about what available evidence seems to show about relations between the 2016 Trump campaign and Russia, but I think that would be irresponsible, since nothing I said would be based upon the best evidence that may become available.  The end of the Mueller investigation, however, may in any case mark a very significant milestone in US history, as do many of the steps being taken by the Republican Administration and the court system.  The age of government by bureaucracies established to serve the public good may be coming to an end.

The Mueller investigation was the fifth in a series of prosecutorial investigations of sitting Presidents and their administrations or campaigns, following those of Watergate (1973-4), Iran-Contra (1986-93),  Whitewater (1994-2000), and the leak of a CIA operative's name (2003-7).  While Congress had probed wrongdoing within earlier or current administrations on a number of occasions in the past, I cannot at the moment recall any cases of the federal criminal justice system investigating the administrations, campaigns, or personal and financial behavior of sitting Presidents that compare to those four.  The government, in the person of Attorney General Elliot Richardson, handled Watergate in 1973 like the unprecedented event that it was, appointing the first Special Prosecutor, Archibald Cox, after the initial round of Watergate convictions and investigations led to revelations of wrongdoing at the highest levels of the Nixon campaign, the Justice Department, and the White House.  In October 1973 Nixon arranged for the firing of Cox after Richardson and his deputy resigned, but public pressure forced him to replace him with Leon Jaworski, who eventually convicted a number of the President's closest advisers of various kinds, and would have moved to indict Nixon himself after his resignation had President Ford not pardoned him.  The Watergate controversy also led to the passage of a law providing for the appointment of a special counsel whenever an executive branch official was accused of serious wrongdoing, and numerous investigations resulted for the next thirty years.  Almost fifteen years later, the Iran-Contra investigations also led to some convictions at the highest levels of the Reagan Administration, but President George H. W. Bush eventually pardoned the convicted men, and his own involvement, well documented, in the abuses under investigation did not prevent his being elected President in 1988.  The Whitewater investigation continually broadened its mandate and eventually resulted in the impeachment of President Clinton for lying about his relationship with Monica Lewinsky, but did not convict any government officials of wrongdoing.  The investigation of the leak of CIA operative Valerie Plume by the George W. Bush Administration led to the conviction of Scooter Libby in  Bad feeling over these various investigations eventually led to the Congress allowing the special counsel law to lapse.   Robert Mueller's investigation has indicted more than a dozen Russians for interference in our election by computer hacking and secured convictions of a number of campaign officials.  Watergate, Iran-Contra, and Whitewater also provoked intense and often televised Congressional hearings, but since the Republicans controlled both houses of Congress in 2017-8, there has been no parallel investigation of the Trump campaign and Russia yet.  The House Intelligence Committee, now controlled by Democrats, may undertake one.

Beginning with Watergate the continuing through the three subsequent administrations, defenders of the administration under attack have complained that these investigations were fishing expeditions or witch hunts that threatened the legitimate powers of the executive branch, or, as Republicans like to claim, turned policy differences into crimes.  (The case of Whitewater, which did not involve the exercise of governmental authority, was different, but it struck most Democrats as a hopelessly partisan investigation into trivial financial matters and personal matters that were no one else's business.)  Given that these investigations threatened sitting Presidents, the possibility of presidential pardons hung over them, and such pardons did save Nixon from prosecution and eventually wiped out the convictions of several Iran-Contra figures. Donald Trump has now pardoned Scooter Libby, and he may well pardon some of the people whom the Mueller investigation successfully prosecuted.

Taking a very broad view of this history, I think, hardly anyone could argue that this process has worked well.  It has generated an enormous amount of media coverage and stoked partisan feeling, but it has not resulted in very many convictions for actual wrongdoing related to the offenses charged, at least since Watergate.  The convictions of American citizens secured by Mueller's office almost all relate to other kinds of offenses, not conspiring with a foreign power to affect the election.  It seems to me that these episodes have been confrontations between, on the one hand, our relentless criminal justice system--which, as another author and friend of mine has argued, could convict almost anyone of something, if it devoted substantial resources to doing so--with a highly and increasingly partisan political environment.  The Watergate investigation obviously had the most striking results of these four, and it took place when the GI generation still ruled Washington and partisanship was not nearly as all-encompassing as it later became.  It clearly dealt with serious crimes, including burglary, wiretapping, and obstruction of justice, all deployed to affect an election result.  The most important illegalities in Iran-Contra, while very serious, in my opinion, from a constitutional point of view, were much harder to translate into personal criminal liability.  In Whitewater there were few, if any, real crimes involved at all on the part of anyone but the actual developer of the resort.  Regarding the Mueller investigation, I will remark that while it seems quite clear that several high officials discussed lifting sanctions on Russia with Russian officials, that in itself would not be a crime either.

In general I think these cases (except for Watergate, which, interestingly, also wrapped much more quickly than any of the others) accomplished more harm than good, insofar as they distracted politicians, the press, and the public from the real business of government and increased partisan rancor.  The conclusion of the Mueller probe, managed partly by the President's new Attorney General, has left the Democratic party and its media allies in the position of having brought a knife to a gun fight--they evidently depended on it to destroy the Trump Presidency, which now finds itself in its most powerful position since it came into office.  That however seems similar to the conclusion of Iran-Contra, Whitewater, and the Libby probe, none of which did critical harm, in the end, to the administrations then in power or to their historical reputations.   The mass of the American people did not take Iran-Contra seriously enough to punish George H. W. Bush at the polls in 1988, Bill Clinton survived the impeachment that grew out of Whitewater, and George W. Bush was re-elected in the midst of the Plame investigation in 2004.  Donald Trump may well lose next year's election but if he does, I do not think it will be because of the Mueller investigation or the Congressional probes that may follow this year.

Partisanship and ideology, it seems to me, have led both to the real or imagined abuses of power that led to these investigations, and to their failure to do much good.  The Reagan national security bureaucracy believed so deeply in the support of the Nicaraguan contras that it chose to defy a Congressional ban on it.  Republicans in the mid-1990s were so freaked out by the election of a young Democratic President (just 18 months after it seemed that Bush could not possibly lose) that they moved heaven and earth to continue the special counsel investigation, even when the first special counsel was ready to give it up. (Jesse Helms apparently persuaded a judge face to face to appoint a successor.)  Meanwhile, one legacy of Watergate, it seems, is to have convinced Democrats that disgrace or impeachment is a good way to get rid of a hostile and perhaps dangerous Republican President.  That model has failed both in the case of Reagan and of Trump.  In a remarkable video, Representative Tulsi Gabbard--one of the most independent thinkers in Congress today--suggests that it is time to put the investigation behind us, and turn to the business of governing America, allowing the voters, a mere 18 months down the road, to decide upon the fate of the Trump Presidency.  This would be an important step towards the reinvigoration of our democracy.








3 comments:

Bozon said...

Professor

Great post. I read your post on Silverglate. Great stuff.

To veer off political prosecutions as such, but staying on the general theme here,
Zuckerberg seems to be already in federal criminal crosshairs lately.

He is asking for federal regulation of internet content. No administration is seriously going to touch that, even if it somehow could!

He is already a known China lover, and probably also a Democrat, at least at heart (the conscience of a liberal), would not endear him to a handpicked Trump prosecution team, doing the usual federal team play.

Maybe he is ripe for a Martha Stewart type prosecution!

That would be a whole lot of fun, for me, to watch.
Low hanging fruit the way Facebook has done, and continues to do, so called business.

All the best

Ed Boyle said...

Impeachmemnt of Andrew Johnson did not lead up to such rancour pre ww2 but it set a precedent for this time around. Presidency is not sacred although it has so much power abroad despite little used war powers act. This cycle seems set up for an internal struggle and a general constitutional crisis. General lack of respect for privacy destroys leeway in all spheres of life. Biden smelled hair. Pervert. 50 year political career over. Impeach Clinton, Trump on tenuous grounds, investigate endlessly with a huge net. Really just a power grab. Media and so called openness is misused everywhere hypocritically. Sort of like people used to have grapevine, family, community with elders who urged restraint. Now with twitter, talk radio the lowest common denominator rules, tears down respect, tradition. 60s styles hippie democracy writ large is self destructive. Yellow press got things done in progressive era. Now it is its own raison d'etre of navel gazing. The attempt to control internet is therefore clear but only by the left against the rght brings little. Balance is needed. And where did the left leave the class struggle to preach bombing for human rights? Technological breakthroughs as you said last week have good and bad sides. Internet is like printing press pamphlets before 30 years war. Pure democracy foments civil war, revolution. Too much information confuses even brightest minds. Boomer rebellion is taken to logical extreme against themselves as leaders allowing nobody to be respected as a leader. Next phase of US history is perhaps contractive, as opposed to last quarter millenium.

Bruce Wilder said...

An interesting topic for historical review, but I fear your narrative has missed the main driver of the corruption of the process. We started out in the Watergate scandal with a demonstration of high idealism. Really, it is remarkable the extent to which many major players in the investigation of Watergate and other contemporaneous struggles behaved with professional probity. And, our collective memory of the Watergate investigation largely honors that "heroism": Woodward and Bernstein, Eliot Richardson, John Dean, and several others became almost larger than life.
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The collective affection the present generations have for the "memory" of events most of them are too young to actually remember has been an important factor driving Russiagate: a narrative template, however ill-fitting, that amoral talking heads could use to frame endless, titillating but largely groundless speculation and faux outrage.
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But, the story of how we got from the high idealism our political culture honors in the past to the breach of idealism in the present and today's deeply corrupted cynicism is a story of the ruthless, relentless politics on the right (which you have written about before, highlighting its destruction of institutions) ill-opposed from the centrist-left combined with money, money, money.
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I was surprised that you omitted the role of Richard Mellon Scaife from the Whitewater story, though he financed the "journalism" that kept the story alive for years with his Arkansas project and rewarded the "independent" prosecutor by apparently underwriting his later academic career. The rise of the billionaire political donor!
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The creation of the independent prosecutor was a small-c constitutional innovation and ought to be recognized as such. It changed the rules of the game for a time. Arguably, the pursuit of Clinton was by Starr was almost designed to convince Democrats that they had to let the independent prosecutor statute lapse. That aspect of Republican strategy worked.
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It wasn't possible to investigate very deeply Cheney's motivations for the invasion and occupation of Iraq on false pretences. On a more prosaic level, it wasn't possible for the Democrats to pursue Karl Rove for the use of private email accounts to evade public records requirements. And, then, of course, Hillary Clinton imitated the Republicans, using her own email server, both disarming herself of all righteousness and making her self vulnerable to accusation -- the increasing impotence of the self-compromised centre-left on full display.