Earlier this week on Hardball, Eric Swalwell responded to a question about Trump’s witness tampering and intimidation by stating the obvious. Said Swalwell, “This is a crime spree in progress. We have what the President did with the Ukrainians and his shakedown scheme of asking them to investigate his opponent. But he’s obstructing Congress’ investigation, he’s intimidating witnesses as they are testifying or, in the case of Ms. Williams this weekend, right before they testify”. But Swalwell might as well have been describing the entire Trump presidency, if not his entire career. As I have noted before, it is incredibly difficult for the Democrats to run a very narrow impeachment process, simply because any investigation will expose more and more Trump crimes, both old and new.
That difficulty was made readily apparent as Gordon Sondland’s bombshell testimony basically confirmed Sarah Kendzior’s statement that the Trump administration is “a transnational crime syndicate masquerading as a government”. Trump, Giuliani, Pence, Pompeo, Mulvaney, Barr, Bolton, Perry, Senator Johnson, many of their subordinates, much of the NSC, and others were all engaged or at least passively complicit in a broad conspiracy to extort a foreign government, using US taxpayer dollars, in order to damage the President’s probable opponent and interfere in the 2020 election. Sondland also laid out a clear case that the Trump administration has engaged in a broad obstruction of justice, not only by defying lawful congressional subpoenas but also by refusing to let Sondland review his own material to prepare his defense. Moreover, a number of Trump officials, in particular Volker and Sondland, have clearly gone up to Capitol Hill and perjured themselves under oath.
Sondland and Volker join a myriad of members of Trump’s team who have lied to Congress, investigators, and even courts. Jeff Sessions, Trump’s original Attorney General, lied to Congress about his contacts with the Russians. Paul Manafort, Trump’s campaign manager, spent weeks lying to the Mueller investigation while pretending to cooperate. Trump’s original National Security Adviser, Mike Flynn, lied to the FBI about his contacts with Russia. Michael Cohen, Trump’s lawyer, lied to Congress. Roger Stone, Trump’s political Svengali, was just convicted for lying to Congress and witness tampering. Wilbur Ross, the Commerce Secretary, lied to Congress about the origins of the Census question request, as did the DOJ in its presentation to the courts, including the Supreme Court. And, as Mueller himself was sadly forced to admit, Trump lied under oath with his written answers to the Special Counsel.
Sondland’s testimony also shows just how deeply Trump has managed to turn the administration, in particular the State Department, into willing agents of his crime syndicate. As Sondland notes, “Everyone was in the loop”. Other federal agencies have been basically handed off to the highest bidder. The VA went to three of Trump’s cronies at Mar-a-Lago. Defense, Interior and the EPA are now run by lobbyists for the very industries they are intended to interact with and regulate.
But the corruption of federal agencies isn’t solely accomplished by putting cronies at the top. Steve Bannon’s desired destruction of the administrative state is really an attack on expertise, expertise that career government bureaucrats so brilliantly displayed during the hearings this week. The lack of expertise creates more opportunities for corrupt interests to direct agency policy. Marie Yovanovitch noted this when she testified about how the Ukraine policy became corrupted, declaring, “Moreover, the attacks [on career civil servants] are leading to a crisis in the State Department as the policy process is visibly unraveling, leadership vacancies go unfilled, and senior and mid-level officers ponder an uncertain future and head for the doors. The crisis has moved from the impact on individuals to an impact on the institution. The State Department is being hollowed out from within at a competitive and complex time on the world stage.” We see a similar situation at the Department of Agriculture where a decision to move the USDA research divisions to Kansas City resulted in under 40% of the current scientists actually making such a move. The Interior Department is moving the headquarters of the Bureau of Land Management to Colorado, resulting in another enormous exodus from the agency. Worse, the headquarters will be in the same building as a Chevron corporate office, a company the BLM interacts with about drilling rights. These moves and others are designed to eliminate agency expertise and institutional capabilities, opening the door to corruption.
Similarly, the Justice Department under Bill Barr has been transformed from an independent agency into Trump’s personal defender. Barr had the DOJ file an amicus brief to block the House of Representatives from receiving Trump’s financial records from the accounting firm Mazars. There was no reason for the DOJ to be involved in the case, no federal law to protect in this suit, and the President’s legal interests are well defended by his own lawyers. Similarly, six months ago, the House Intelligence Committee referred Erik Prince to the DOJ for lying to Congress on at least six occasions and yet the DOJ has done nothing .
Instead, Barr has been travelling the world, abandoning diplomatic protocol and angering allies, as part of Trump’s effort to absolve the Russians of responsibility for interfering in the 2016 election, setting the stage for Trump to lift the Russian sanctions. At the same time, Barr’s DOJ is hurriedly readying the Inspector General’s report on the FBI’s handling of the Russia investigation, preparing to drop it in early December as a way to distract from the current impeachment investigation. There is no indication that this report will include anything about the 2016 NY FBI office leaks and that office’s possible coordination with the Trump campaign, a DOJ investigation that seems to have gone dark. As emptywheel points out, Barr’s DOJ clearly ignored their most basic investigative protocols when the Intelligence Community Inspector General referred the Ukraine whistleblower’s complaint for a criminal investigation. In addition, The DOJ committed a crime by not sharing the campaign finance portion of the complaint to the FEC for further investigation. Both those actions not only protected Trump but also Giuliani and his two Ukrainian thugs, Parnas and Fruman, in addition to Barr himself in his own wild goose chase over the origins of the Russia investigation.
If that wasn’t doing enough, Barr just launched into a fascist screed at a Federalist Society event, a rant reminiscent of so many right wing dictators. According to Barr, “The fact of the matter is that, in waging a scorched earth, no-holds-barred war of ‘Resistance’ against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law…In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides…[C]onservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy war, especially when doing so under the weight of a hyper-partisan media”. If that fascist bile wasn’t bad enough, his speech went on to accuse both the legislative and judicial branches of encroaching on executive power and engaging in a debilitating harassment of the Executive. It was a master class in projection and a paean to the theory of the unitary executive and largely unchecked presidential power.
This speech was presaged by an earlier Barr speech at Notre Dame that was also frightening in its attacks on progressives. Jeffrey Toobin described it as the “the worst speech by an Attorney General of the United States in modern history…Historically illiterate, morally obtuse, and willfully misleading”. In that speech, Barr declared, “I think we all recognize that over the past 50 years religion has been under increasing attack. On the one hand, we have seen the steady erosion of our traditional Judeo-Christian moral system and a comprehensive effort to drive it from the public square. On the other hand, we see the growing ascendancy of secularism and the doctrine of moral relativism. By any honest assessment, the consequences of this moral upheaval have been grim…Suffice it to say that the campaign to destroy the traditional moral order has brought with it immense suffering, wreckage, and misery. And yet, the forces of secularism, ignoring these tragic results, press on with even greater militancy. Among these militant secularists are many so-called ‘progressives.’ But where is the progress?…But today we face something different that may mean that we cannot count on the pendulum swinging back. First is the force, fervor, and comprehensiveness of the assault on religion we are experiencing today. This is not decay; it is organized destruction. Secularists, and their allies among the ‘progressives,’ have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values. These instruments are used not only to affirmatively promote secular orthodoxy, but also drown out and silence opposing voices, and to attack viciously and hold up to ridicule any dissenters…Those who defy the creed risk a figurative burning at the stake — social, educational, and professional ostracism and exclusion waged through lawsuits and savage social media campaigns”. He continued with an attack on the government for providing a social safety net, the legal system for forcing “religious people and entities to subscribe to practices and policies that are antithetical to their faith”, and the state education systems for not subsidizing religiously affiliated public schools. It was a cri-de-Coeur for crypto-fascist Christian nationalism.
With these two speeches, Barr has laid down the religious and legal justifications for a more authoritarian government. As noted above, Trump has managed to turn important federal agencies into agents for his corruption. The only thing standing in the way of Trump and Barr’s authoritarian vision of the unitary executive is the separation of powers, the restraints put on executive power by the legislative and judicial branches. Barr has made a point of attacking both these branches of government in his two speeches.
As I have previously noted, Trump and the Republican party, from the President all the way down to the county level, is denying the legitimacy of any oppositional power. The most extreme example of this denial is the administration’s refusal to honor any part of every subpoena from House Democrats. The most petty example comes from a Republican county legislature stripping the power of the county executive simply because a Democrat finally won that post after 30 years. In addition, the anti-democratic nature of the Electoral College and the Senate, has resulted in the minority being able to create legislative sclerosis, as the use of the filibuster, particularly by Republicans, or the control of one house of Congress or the White House has effectively neutered the ability to pass legislation. A dysfunctional legislative branch creates the conditions for expanded executive power, exactly the kind of power Barr’s unitary executive envisions.
The government, however, keeps running thanks to the existence of the administrative state which is delegated to enact the laws that Congress has previously passed. As Barr describes it, “They [Congress] either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control”. Just as the attack on expertise noted above is designed to weaken the administrative state and make it more susceptible to corruption, Barr and his Federalist Society friends want to legally attack the powers Congress has delegated to the federal agencies. As Don McGahn stated, “When I hear ‘deregulation,’ all that means is returning the power to decide policy back to those elected by the people, whether it is the House, the Senate, or the President”. Limiting agency power through repeal of the Chevron doctrine would pass that power to the courts or back to Congress, which, as we’ve seen, is unable to actually legislate. This again creates conditions for expanded executive power and a potential regulatory wild west where hardly any rules apply simply because they can never get formulated or are left to the whims of the President. This desire to eliminate the independence of federal agencies now extends to the Federal Reserve. Trump’s latest Fed pick, Judy Shelton, has spoken of her skepticism that the Federal Reserve should be free of political influence. All of these actions would create situations ripe for corruption.
The attack on the independence of the judicial branch actually began long before Trump and mirrors the Republican denial of legitimacy given to Democrats. The refusal to even give Merrick Garland a hearing was at once a denial of Democratic legitimacy but also a raw power grab for control of the most important court in the country. Remember Mitch McConnell would not have considered any nominee Obama put forward in 2016 and a number of Republican Senators declared they would leave the seat open rather than let Hillary Clinton fill it. And because of Mitch McConnell’s intransigence with other Obama court nominees, Trump has now appointed nearly one quarter of the federal circuit court judges, filling them with younger and often unqualified hacks.
But Trump and Barr are not just satisfied with packing the courts with partisan hacks. They are out to limit the power of the judiciary as a whole. Barr was clear on that when he stated, “First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. Second, the Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power.”
One element in that attack is a desire to dispense with nationwide injunctions. Mike Pence, at an earlier Federalist Society meeting, as well as Barr in his speech, proposed requesting the Supreme Court to bar nationwide injunctions by federal district courts. Those kind of injunctions were particularly successful in obstructing Obama, blocking his overtime rules, for instance, and allowed venue shopping to get the desired result. But with an increasingly authoritarian Republican president in place, nationwide injunctions will potentially limit expansive executive power that Barr envisions and Trump demands. In fact, Barr specifically cited the Muslim ban, which was initially stopped by a nationwide injunction, as an improper expansion of the kind of judicial review he wishes to eliminate.
Less important, but still part of the expansion of executive power, is the Trump administration’s weakening of international law. The Muslim ban, for instance, violated three treaties the US is a party to. The policy of forcing asylum seekers to remain in Mexico violated international law, as does the child separation policy. The same can be said of Trump’s decision to allow Turkey to invade northern Syria and ethnically cleanse the Kurds in that area, exposing the US to complicity in war crimes. Speaking of war crimes, Trump just pardoned three alleged war criminals, weakening adherence to the Geneva Conventions. Trump’s vow to seize the Syrian oil fields may also violate international law. Similarly, the new US policy on Israeli settlements does not now violate international law simply because someone in the administration decided they would not, simply recognizing a “reality on the ground”. And Trump has already shown his willingness to recognize the reality on the ground by insisting that Crimea should be part of Russia simply because the majority of the people there speak Russian. That certainly made Ukrainians in the Donbass region, which is currently under attack by the Russians, as well as all three Baltic states feel far less secure. Unsurprisingly, weakening international law is yet another way to advantage corrupt and authoritarian regimes.
For what it’s worth, Trump seems to believe that the Supreme Court, with his two new appointees, will protect him in much the same way as Barr currently does. Despite that confidence, we now know that the DOJ lied to the Court in the Census question case. More importantly, it seems clear that Trump’s extraordinary attempt to obstruct congressional oversight will most likely be resolved by the Supreme Court, much to Barr’s stated dismay. In contemplating just how Trump might react should the Court rule against him, it might be useful to think about how the administration approached the Census case, by lying to the Court, and how it responds to federal courts that rule against them. On the southern border, the administration brazenly and, according to the ACLU, “systematically” violated the court order prohibiting the continuation of the family separation policy. That resulted in hundreds of young children being separated from their families. ProPublica reported that the administration simply did not inform immigration judges and prosecutors about a federal court ruling that that made certain immigrants eligible for asylum.
In Oregon, a federal district judge granted a release order for an immigrant in a detention proceeding. Before that order could even be presented to the defendant, ICE re-arrested the immigrant under an ICE “administrative procedure”. The incredulous judge asked the poor US Attorney, “He [the ICE agent] has the power to determine that it [the release order] will not be obeyed, or he has the ability to comply with the Court order at his discretion? That’s what you’re telling me?” who tried to explain by saying, “I wouldn’t say that ICE is overruling your order, Your Honour. I would say that ICE was acting on the pendency of their administrative case”. To judge rightly responds, “Isn’t that a classic example of an arbitrary decision-making process that is outside the rule of law that governs this country?” I don’t think it takes a large leap of faith to believe that this incident was not just a one off but a strategy prepared in the White House by the avowed racist Steven Miller. I encourage you to read the entire exchange as it clearly illustrates the lack of respect that ICE and the Trump administration in general has for the courts and the rule of law. It is no sure thing that Trump would honor a Supreme Court decision that forced him to, say, release his tax returns to investigators. Instead, He would invent some “administrative procedure” or privilege that would delay of prevent the release of those documents.
Trump’s weakening of the administrative state is real and harmful, as Yovanovitch detailed. Trump’s weakening of the legislative branch has also been effective insofar as he is directly challenging the power of legislative oversight to great effect. Trump has also been able to transform the judicial branch for a generation or more, packing the courts with young judges, some of whom are well outside the mainstream of legal thought. Even so, it is the judicial branch that has been the most resistant to Trump’s autocratic efforts and it remains to be seen whether that branch will allow the challenges to the legislative branch and itself stand. And it remains to be seen whether Trump will eventually challenge that judicial power if it does not.
Some will surely argue that, for someone I describe as engaging in an unprecedented power grab, Trump has shown a remarkable inability to get his agenda enacted. There is no wall, the ACA hasn’t been repealed (yet), there is no infrastructure legislation, etc. Certainly, part of the reason for that is that the legislative and judicial branches have not been thoroughly neutered quite yet. But Trump’s agenda was never about policy except as a way to win votes. As it has been his entire life, Trump’s true agenda is more wealth and power for himself. So it is not surprising that the only significant legislation that he has managed to get through Congress was the tax cut that included a number of nice juicy tax breaks for real estate developers like himself, putting more money in his own pocket. And we still have no idea what other arrangements have been made in secret with other corrupt foreign leaders and how much money he has made through his violations of the Emoluments Clause.
I don’t think people realize just how close Trump’s Ukraine extortion plan came to being realized. It seems likely that the deal had already been made with the prior Ukrainian President Poroshenko. But that plan was thwarted by Zelensky’s victory in the Ukrainian election, prompting the scramble to extort him to investigate the Bidens. And that extortion and its resulting impact on the 2020 election was just hours away from coming to fruition until the whistleblower came forward. As the hearings have shown, the fact that the President was committing what the Founders considered the ultimate crime against our democracy was known by many. Only the whistleblower, however, had the courage to come forward. He or she should be considered a hero. Yet the fact is that the Republicans are desperate to out the whistleblower in order to tar and destroy him or her. That is the very definition of a fascist party, protecting the leader at all costs. Similarly, the silence of so many that knew clearly illustrates just how thoroughly corrupted our government has become under Trump.
The certain and impending impeachment of Trump will now become the ultimate test for the Republican party. Acquittal in the Senate will normalize the power of any President to be immune from congressional oversight. It will normalize the ability of any President to use the powers of the federal government for his own personal enrichment. It will normalize the ability of any President to rig his own re-election. It will given this President, with an already authoritarian bent, free reign. Along with his Cromwellian enforcer in Barr, a weakened legislature, a captive judiciary that can still be ignored if necessary, and a hollowed out administrative state, Trump’s corruption will run rampant. Unlike other budding autocrats, Trump does not have to create a state-sponsored media outlet — it already exists with Fox News and now, apparently, Facebook has joined in. All the elements for an autocratic takeover are already in place. Only Republicans in the Senate stand in the way and there is no indication they will actually do their duty and defend democracy. Instead, they will cement their power by supporting a corrupt autocrat, destroying our democracy in the process. If you think that is hyperbole, just think how close Trump was to pulling off the Ukrainian extortion, an effort that was designed to rig the 2020 election in his favor. As Adam Schiff has noted, if that is not an impeachable offense, then what is. And then realize that Republicans will be unified in saying it is not. They are rotten to the core.
I look at these substantive Democratic debates where candidates are hashing out answers to the critical issues facing our country and our planet in clear and sober tones. And then I think of Trump meeting clandestinely with Zuckerberg, a man who describes Elizabeth Warren as an existential threat to his company, and Peter Thiel, a man who has declared that he no longer believes that “freedom and democracy are compatible”. And I think of how our business elites seem quite comfortable with losing our democracy as long as their wealth is protected or perhaps because they are so afraid of a Trump tweet that will tank their company’s stock. And I think of how much Trump has already corrupted our government and how he has tried to fix the 2016 and the 2020 election, and how he is probably actively engaging other attempts to do that right now. And I think of how Republicans have been on board with rigging elections in their favor through voter suppression and gerrymandering. And I think of Fiona Hill who testified, “Right now, Russia’s security services and their proxies have geared up to repeat their interference in the 2020 election. We are running out of time to stop them”. And I think how Republicans have blocked efforts to protect our electoral system for 2020. And I think of those two speeches from Barr and his prior actions protecting Trump and undermining democracy, as well as his vision for the future. And I think about the challenges the majority of Americans already face with the anti-democratic nature of the Electoral College and the Senate, vestiges of our original sin of slavery.
With all that in mind, and assuming Trump is acquitted in the Senate as seems likely, it is remarkable that Democrats and so much of the media still live with this presumption that the 2020 election will be free and fair. Beyond the structural problems our electoral system poses for the Democrats, it is now a given that Trump will be using foreign assistance and perhaps even foreign money to tilt the election in his favor. He will also use all the levers of his now corrupted government in constant violations of the Hatch Act to advance his own campaign. And it is not beyond the realm of possibility that there are ballots ready to be stuffed or changed, or violence in the streets should the election look to not be going in Trump’s favor. Everyone who lives outside the Fox News bubble, especially the media, needs to be honest and realize that it will actually be a fight with the playing field strongly tilted against them for the Democrats to win in 2020. It will be a fight to end the crime spree and save our democracy from the corrupt criminals trying to steal it. And it still is a fight that can and must be won.
Originally published at https://thesoundings.com on November 23, 2019.