Trump is clearly guilty if un­fit­ness for of­fice is a crime

The Buffalo News - - VIEWPOINTS - By Ge­orge T. Con­way III Ge­orge T. Con­way III is a lawyer in New York and hus­band of White House ad­viser Kellyanne Con­way.

Very lit­tle was sur­pris­ing about the con­clu­sion of the spe­cial coun­sel’s in­ves­ti­ga­tion. For one thing, it wasn’t sur­pris­ing that Robert Mueller’s probe prompted great com­mo­tion – a fed­eral in­ves­ti­ga­tion in­volv­ing a sit­ting pres­i­dent is a mo­men­tous event, and con­clud­ing it, a his­toric mo­ment. And most, but not all, of the de­tails in the at­tor­ney gen­eral’s let­ter of “prin­ci­pal con­clu­sions” were un­sur­pris­ing as well.

Let’s start with the ques­tion of “col­lu­sion.” It was never pre­cisely clear what that non­le­gal con­cept meant. If it means what Mueller rea­son­ably took it to mean – an “agree­ment,” “tacit or ex­press,” with the Rus­sians to in­ter­fere with the 2016 pres­i­den­tial elec­tion, or, in ef­fect, a con­spir­acy with the Rus­sians – then it was al­ways vir­tu­ally unimag­in­able that col­lu­sion, so de­fined, would ever be found. Rus­sian agents didn’t need Amer­i­cans to help them do what they were do­ing – hack­ing and post­ing dis­in­for­ma­tion. If any­thing, in­volv­ing Amer­i­cans, in­clud­ing some ap­par­ently block­ish ones, could only have fouled up their plans. “Col­lu­sion” – or, rather, “no col­lu­sion” – was bound to be­come a straw man for Pres­i­dent Trump and his sup­port­ers to knock down with glee.

Yet that hardly means that the in­ves­ti­ga­tion (which, thanks to Paul Manafort’s largesse, ac­tu­ally turned a neat profit) was ei­ther a “witch hunt” or a waste of time. Af­ter all, it was a coun­ter­in­tel­li­gence in­ves­ti­ga­tion as well as a crim­i­nal probe. A core ob­jec­tive – the over­ar­ch­ing one, re­ally – was to find out ex­actly what the Rus­sians were do­ing. An­other was to find out whether there were “links” be­tween the Trump cam­paign and Rus­sia’s ac­tiv­i­ties. As mat­ters turned out, and quite sur­pris­ingly, we now know from pub­lic sources that there were links aplenty. So who knows what we might learn on these sub­jects from Mueller’s still-un­re­leased re­port? As Se­nate Ma­jor­ity Leader Mitch McCon­nell, R-Ky., said Mon­day, “Rus­sia’s on­go­ing ef­forts to in­ter­fere with our democ­racy are dan­ger­ous and dis­turb­ing.” He added that he would “wel­come” the spe­cial coun­sel’s con­tri­bu­tions to­ward un­der­stand­ing them.

As for whether the pres­i­dent ob­structed jus­tice, that ques­tion was al­ways dicey. No one should have been sur­prised that it raised, as At­tor­ney Gen­eral Wil­liam Barr’s let­ter put it, quot­ing Mueller, “‘dif­fi­cult is­sues’ of law and fact con­cern­ing whether the Pres­i­dent’s ac­tions and in­tent could be viewed as ob­struc­tion.” On the law, Barr was prob­a­bly not wrong to sug­gest, as he did as a pri­vate ci­ti­zen, that there’s a dif­fer­ence un­der the statutes be­tween a pres­i­dent de­stroy­ing ev­i­dence or en­cour­ag­ing a wit­ness to lie and a pres­i­den­tial direc­tive say­ing, “Don’t waste your time in­ves­ti­gat­ing that.” But that doesn’t mean the lat­ter can’t be an im­peach­able of­fense.

On the facts, ob­struc­tion turns on what’s in a de­fen­dant’s mind – often a dif­fi­cult thing to de­ter­mine, and es­pe­cially dif­fi­cult with a mind as twisted as Trump’s. And com­pli­cat­ing things even more, para­dox­i­cally, is the fact that some of Trump’s ar­guably ob­struc­tion­ist con­duct took place in full pub­lic view – some­thing that, with a nor­mal per­son with nor­mal mo­ral in­hi­bi­tions, would have in­di­cated a lack of crim­i­nal in­tent. But in the head of Don­ald J. Trump, who knows?

So it should have come as no sur­prise that the ob­struc­tion case was dif­fi­cult, and in­con­clu­sive. But Barr’s let­ter re­vealed some­thing un­ex­pected about the ob­struc­tion is­sue: that Mueller said his “re­port does not con­clude that the Pres­i­dent com­mit­ted a crime” but that “it also does not ex­on­er­ate him.” The re­port does not ex­on­er­ate the pres­i­dent? That’s a stun­ning thing for a prose­cu­tor to say. Mueller didn’t have to say that. In­deed, mak­ing that very point, the pres­i­dent’s out­side coun­sel, Ru­dolph Gi­u­liani, called the state­ment a “cheap shot.”

But Mueller isn’t prone to cheap shots; he plays by the rules, ev­ery step of the way. If his re­port doesn’t ex­on­er­ate the pres­i­dent, there must be some­thing pretty damn­ing in it about him, even if it might not suf­fice to prove a crime be­yond a rea­son­able doubt. And in say­ing that the re­port “cat­a­logu(ed) the Pres­i­dent’s ac­tions, many of which took place in pub­lic view,” Barr’s let­ter makes clear that the re­port also cat­a­logues ac­tions taken pri­vately that shed light on pos­si­ble ob­struc­tion, ac­tions that the Amer­i­can peo­ple and Congress yet know noth­ing about.

At the same time, and equally re­mark­ably, Mueller, ac­cord­ing to Barr, said he “ul­ti­mately de­ter­mined not to make a tra­di­tional prosecutorial judg­ment” re­gard­ing ob­struc­tion. Read­ing that state­ment to­gether with the no-ex­on­er­a­tion state­ment, it’s hard to es­cape the con­clu­sion that Mueller wrote his re­port to al­low the Amer­i­can peo­ple and Congress to de­cide what to make of the facts. And that is what should – must – hap­pen now.

But whether the Mueller re­port ever sees the light of day, there is one charge that can be re­solved now. Amer­i­cans should ex­pect far more from a pres­i­dent than merely that he not be prov­ably a crim­i­nal. They should ex­pect a pres­i­dent to com­port him­self in ac­cor­dance with the high du­ties of his of­fice. As all pres­i­dents must, Trump swore an oath to pre­serve, pro­tect and de­fend the Con­sti­tu­tion, and to faith­fully ex­e­cute his of­fice and the laws in ac­cor­dance with the Con­sti­tu­tion. That oath re­quires putting the na­tional in­ter­ests above his per­sonal in­ter­ests.

Yet vir­tu­ally from the mo­ment he took of­fice, in his re­sponse to the Rus­sia in­ves­ti­ga­tion, Trump has done pre­cisely the op­po­site: re­lent­lessly at­tacked an at­tor­ney gen­eral, Mueller, the Jus­tice De­part­ment – in­clud­ing sug­gest­ing that his own deputy at­tor­ney gen­eral should go to jail. Lied, to the point that his own lawyers wouldn’t dare let him speak to Mueller, lest he com­mit a crime. Been more con­cerned about tout­ing his sup­pos­edly his­toric elec­tion vic­tory than con­fronting an at­tack on our democ­racy by a hos­tile for­eign power.

If the charge were un­fit­ness for of­fice, the ver­dict would al­ready be in: guilty be­yond a rea­son­able doubt.

New York Times

Pres­i­dent Trump speaks to re­porters be­fore board­ing Air Force One at Palm Beach In­ter­na­tional Air­port in West Palm Beach, Fla., on March 24. The in­ves­ti­ga­tion led by Robert Mueller found that nei­ther Trump nor any of his aides con­spired or co­or­di­nated with the Rus­sian govern­ment’s 2016 elec­tion in­ter­fer­ence.

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