A Party Willfully Negligent Of The Law And The People

Two common features of an authoritarian state are that the justice system largely works to “legalize” the autocrat’s crimes, while enforcing his desires, and that significant swaths of the citizenry, usually undesirable minorities but often including those who support the autocrat, must be sacrificed to satisfy the leader’s whims. Think of the Uighurs in China currently, Stalin’s famine in Ukraine, or his frequent purges. We can see both of those authoritarian features today in the Trump administration, supported by the now monolithic Republican party and its enablers in the courts, the media, and business.

Of course, the rot starts at the top. Portions of the Mueller report that had previously been redacted because of the then ongoing case against Roger Stone have now been unredacted and they show that the President brazenly lied to Mueller about his knowledge of Wikileaks’ possession and plans for the stolen Podesta emails as well as Stone’s role as an intermediary between the Trump campaign and that group. In addition, the new material shows that Mueller believed that Trump’s statements encouraging Stone not to testify against him during the investigation were a potential obstruction of justice.

The Ukraine scandal has already shown that Trump has been trying to reprise the Trump campaign’s 2016 coordination with a foreign government in order to win re-election in 2020. John Bolton describes Trump as clearly engaged in a quid pro quo with Ukraine, writing, “He [Trump] said he wasn’t in favor of sending them anything until all Russia-investigation material related to [Hillary] Clinton and Biden had been turned over”. Bolton also reports that Trump has tried a similar gambit with China. Bolton writes, “He [Trump] then, stunningly, turned the conversation to the coming U.S. presidential election, alluding to China’s economic capability to affect the ongoing campaigns, pleading with Xi to ensure he’d win”. It also looks like Trump may be employing Saudi Arabia in the same effort, getting the Saudis to make purchases targeted at the electorate Trump needs to win. Finally, of course, Russia is again planning to interfere in 2020, again on Trump’s behalf. Remarkably and probably not coincidentally, Trump’s apparent reaction to the news that the Russians were offering the Taliban a bounty for every US soldier killed in Afghanistan was to try and get Putin invited back into the G7.

Like every autocrat, Trump has his legal enforcer and Bill Barr has become his Roy Cohn. While Trump demands most of the headlines, it is now clear that Barr has worked unceasingly since his very first day as Attorney General to protect the President and politicize the Justice Department. Barr’s corruption of the DOJ is almost complete, using his office and the agency to pursue the personal legal and political interests of the President and pursue his own personal obsessions.

Almost immediately after taking office and in what looks remarkably similar to what he was actually able to do in the Stone and Flynn cases, Barr began questioning the US Attorneys’ decision to charge Michael Cohen with campaign finance violations that had already resulted in Cohen pleading guilty. Barr then instructed DOJ officials to write a memo that would have made pursuing such campaign violations more difficult. As @emptywheel points out, such a memo would have had implications for whether the Trump Tower meeting where the Russians offered dirt on Clinton and aid to the Trump campaign was an illegal campaign donation. In addition, such a memo may have similarly helped Roger Stone whose SuperPAC appeared to be coordinating illegally with the Trump campaign.

Barr immediately followed that effort up with his infamous interpretation of the Mueller report that was almost totally at odds with what the report actually said and redacted in a way to protect the President. Barr’s description of the report was so “misleading” and “distorted” that a federal judge appointed by G.W. Bush recently declared that it had caused “the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary”. The judge added that Barr’s “lack of candor” raised questions about the Attorney General’s “credibility” with the court. Apparently, Barr was already working on discrediting the Mueller report before the report was even released and the DOJ still refuses to release the legal justifications it used for not charging the President.

While Barr was apparently stymied in derailing the Cohen case, he was more successful with Roger Stone. Barr took the unprecedented step of overriding the career prosecution team’s sentencing recommendations, forcing them to withdraw from the case, in order to provide a more lenient sentence for Stone. One of those career prosecutors has testified under oath that “What I heard — repeatedly — was that Roger Stone was being treated differently from any other defendant because of his relationship to the president”, adding that the prosecutors were told their careers were in jeopardy if they did not comply with the more lenient sentencing recommendation.

Barr went even further in the Flynn case, basically removing the career prosecutors who were handling the case in order to try and drop the case entirely, even after Flynn had pled guilty on two occasions. A retired judge brought in to look at the rationale for the DOJ dropping the Flynn case after his guilty pleas has written, “The facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump”, adding that “Everything about this is irregular”.

Barr’s lack of credibility and willingness to go to enormous lengths to protect Trump were on further display when he announced that the US Attorney for the Southern District of New York (SDNY), Geoffrey Berman, was stepping down. This gambit was designed to put another Trump sycophant in charge of a number of investigations involving the President. Those cases include the campaign finance violations of Lev Parnas and Igor Fruman, as well as investigations into Giuliani, the Trump inaugural committee, a Turkish bank that Trump reportedly has promised Turkish President Erdogan that “he would take care of”, Deutsche Bank, and Jeffrey Epstein. Berman made clear that Barr was lying about his resignation, declaring that “I have not resigned, and have no intention of resigning”. Caught in the lie, Barr was forced to get Trump to fire Berman, although Trump claimed he had no part in firing Berman and no paperwork relating to the firing was ever produced or filed. The situation was finally resolved when Berman agreed to step aside to make way for his deputy, thereby foiling, for the moment, Barr’s effort to control those investigations.

While it might seem that Barr would have his hands full squashing all the investigations of the President, he apparently also had the time to use the DOJ to advance some of his own political prejudices. A DOJ official recently testified under oath that the antitrust division was “forced for political reasons to pursue unjustified investigations of the fledgling legal marijuana industry”, simply because Barr “did not like the nature of their underlying business”. According to the official, “These mergers [of marijuana companies] involve companies with low market shares in a fragmented industry; they do not meet established criteria for antitrust investigations. While these were nominally antitrust investigations and used antitrust investigative authorities, they were not bona fide antitrust investigations. Nonetheless, they accounted for 29% of the antitrust division’s full-review merger investigations in Fiscal Year 2019”. The official additionally testified that an antitrust investigation of the top four automakers that was begun after those companies reached an agreement with California to raise fuel efficiency standards was also politically motivated. Now there are questions about another US Attorney in Texas who was removed by Barr last month and whether that too was politically motivated. Reporting from ProPublica seems to indicate the removal was part of a politically motivated process to prevent Walmart from being indicted over the dissemination of opioids. Finally, Barr was also responsible for ordering the Park Police to assault legal and peaceful protestors in order to make way for Trump’s photo-op and then operating what amounted to a secret federal police force on the streets of Washington DC.

While Barr is doing all he can and more to protect the President from being held accountable for his crimes, Trump and the Republican party seem intent on committing what Gregg Gonsalves describes as “mass death by public policy”. Early estimates are that the refusal to acknowledge the seriousness of the pandemic and the corresponding delay in locking down states resulted in anywhere between 35,000 and over 50,000 preventable deaths, and those numbers are based on what we all know is an undercount of deaths related to the virus. The CDC has asked that states report probable COVID-19 related deaths, not just those that have been confirmed. Fewer than half the states are actually doing that, resulting in an undercount of deaths of unknown magnitude.

The rationale for going into lockdown was to first make sure hospitals were not overwhelmed and second to provide the time to implement testing, contact tracing, and isolation programs that could be used to contain a new outbreak when it occurred. As a country, we really haven’t succeeded at the first and basically never tried to develop the second. Because of that, and the policies of predominantly red-state governors, we are seeing new record levels of infections over four months into this pandemic.

Trump’s mantra has always been that testing just reveals more cases which makes him look bad. In fact, Trump recently boasted that he “said to my people ‘slow the testing down please’”, and then doubled down on this claim after his own spokesman had claimed it was a joke. The administration is now refusing to extend its support for testing sites around the country, even in places like Texas which is seeing its highest rate of infection so far. The administration even continued to allow the distribution of antibody tests that it knew were defective, resulting in decisions about reopening that were based on faulty data.

Months ago, David Frum outlined the Trump approach to the pandemic, namely to take the punch and hope the economy recovers. Said Frum, “He’ll reopen and see what happens. Let’s accept that there may be hundreds of thousands, or some double hundreds of thousands, of Americans killed. They’re going to be mostly poor and minorities, mostly not going to be Trump voters. Let’s take that punch and push through and try to get to herd immunity as fast as possible”. Red state governors in the South and Southwest have largely followed that approach, re-opening in violation of the administration’s own minimal guidelines, and now resulting in the incredible spike in cases we see today.

Worse than not following the guidelines have been the efforts to restrict the most basic efforts to prevent the spread of the virus while seeming to purposely sabotage accurate data to assess the situation. In Florida, the state stopped reporting the number of ICU beds that had been filled and began reporting the number of patients who need ICU-level care instead, in an apparent attempt to hide the fact that many hospitals’ ICU facilities are already filled. The state has also been accused of manipulating the data on infections and deaths in order to imply the state has reached the downside of its peak. In Texas, Houston hospitals reported reaching 100% of ICU capacity and then, after hospital executives met with the governor, stopped reporting their ICU capabilities at all.

Masks are probably the easiest and most basic way to restrict the spread of the virus. But the governors of Florida and Texas have both refused to make mask-wearing mandatory, and, in Texas until recently, the governor has prohibited local officials from instituting mandatory mask-wearing. Similarly, Arizona’s governor had blocked local ordinances mandating mask wearing and earlier had tried to shut down the state’s efforts to model the pandemic, a move that was rescinded after protests. In North Carolina, the legislature just ensured that mask-wearing would again become illegal starting in August.

For Trump’s Republican supporters, mask-wearing and social distancing have become a test of their loyalty to the leader. And, like every nervous autocrat and his enablers, there are always tests of that loyalty. Trump’s rallies are a test of how many of his supporters will risk their lives to feed his insatiable ego and reinforce his pretense that the pandemic is basically over. In Tulsa, Trump campaign officials ripped the stickers off seats asking people not to sit there in order to maintain the social distancing requirements determined by the arena management. In Texas, the state Republican party plans to hold an in-person convention with around 6,000 attendees expected. Mask-wearing and social distancing are, at this time, not going to be required.

The consumption of right-wing network and social media is now clearly associated with less concern about the pandemic. According to an analysis from the Harvard Kennedy School, “We are receiving an incredible number of studies and solid data showing that consuming far-right media and social media content was strongly associated with low concern about the virus at the onset of the pandemic”. As a result, a full 40% fewer Republicans say they always wear a mask compared to Democrats.

The effort to endanger Americans has also been abetted by the courts. The Supreme Court refused to extend the absentee voting deadline in Wisconsin even though thousands of voters had not received the ballots they had requested. The decision forced thousands to physically go to the polls, endangering their lives, and resulting in a number of new infections. This week, the Court also refused to intervene in order to enforce a lower court’s ruling that Texas must expand mail-in voting to all voters, not just those over 65 as the law currently stands. Instead, the Court decided to wait until the case has been heard by the 5th District Court of Appeals, with the hope that their decision will be early enough for the Supreme Court to rule before the November election. This decision will again force thousands to physically go to the polls in the midst of a massive coronavirus outbreak in Texas to vote in the July 14 primary elections.

The refusal to intervene in Texas stands in stark contrast to the extraordinary number of stays to lower court decisions that the Trump administration has sought from and been granted by the Supreme Court. That pattern forced Justice Sotomayor to write, “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others”, namely President Trump.

In yet another example of the courts intervening improperly to the advantage of the Trump team,Trump-appointed Federalist Society hack Neomi Rao recently provided the deciding vote in a DC Appeals Court decision that would force the judge to accept the DOJ’s new recommendation to drop the case against Flynn. Rao’s opinion states that “decisions to dismiss pending criminal charges — no less than decisions to initiate charges and to identify which charges to bring — lie squarely within the ken of prosecutorial discretion”, which sounds reasonable enough. But the only reason that the case is appearing before the court is because of a writ of mandamus from Flynn’s lawyers. As the dissenting opinion notes, a writ of mandamus is a “drastic and extraordinary remedy” and appeals courts may only grant mandamus relief if the person seeking such relief has “no other adequate means to attain the relief he desires” and “his right to the issuance of the writ is ‘clear and indisputable’”. In this case, Flynn clearly has another option for relief, mainly to wait until his sentence is decided and then file an appeal with this same DC Court of Appeals if he feels he has still been wronged. The judge in the Flynn case has now put the case on hold and is expected to appeal Rao’s decision to the full Appeals Court.

But perhaps the culmination of the Trumpian merger of the collapse of the rule of law and policies seemingly intended to ensure that more Americans die is the legal case to declare the entire ACA unconstitutional simply because the individual mandate has been zeroed out. Last week, the Trump administration filed its brief in support of this case originated by red state Attorneys General and to be conveniently decided by the Supreme Court after November’s election. The fact that this case even made it to the Supreme Court shows how corrupt the entire judicial system has become under Trump. Since the mandate is now zero, there is no one being harmed by the mandate and therefore no one who has standing to challenge it. Moreover, Congress already debated whether to repeal the entire ACA and decided not to, instead keeping it intact but zeroing out the individual mandate. The Supreme Court itself ruled in 2018 that courts should be leery about striking other provisions of a law when one provision has been ruled unconstitutional. Justice Alito himself wrote, “In order for other … provisions to fall, it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not’”. Yet here we are, waiting to see if the Trump administration can succeed in an absurd legal argument in order to take health insurance away from 23 million Americans in the middle of a global pandemic that has already killed over 125,000 Americans. It just might be the apotheosis of Republican rule.

Finally, another remarkable feature of our current moment is the almost complete silence from our business leaders. One would think that the fact that Trump has so thoroughly botched the response to the pandemic, resulting in an extended shutdown of the economy and accelerating a retail apocalypse, might bring forth a few complaints about how much their businesses were being hurt by the administration’s ineptitude. But it seems that they have been bought off by the $500 million slush fund administered by Mnuchin, the PPP loan program whose recipients will remain unknown, and the Fed’s decision to buy corporate bonds, thereby also propping up the stock market. The business leaders’ silence corresponds to the fact that the S&P remained positive for the year and the NASDAQ reached an all-time high even as the economy plunged into recession and unemployment reached Great Depression levels.

Remarkably, the business leaders who complained the most were only trying to extract more concessions from the Trump administration. For example, the head of Smithfield Foods warned of a meat shortage in order to get Trump to order meat-packing facilities, a nexus for infections, to stay open, at the time the President’s only actual implementation of the Defense Production Act. In fact, Smithfield wanted those plants open in order to capitalize on its record exports to China, even as it warned about shortages here in the US. For Smithfield, it was a successful ploy to get the government to order its own workers to die from coronavirus in order to pad the bottom line.

More concerning, however, is the thought that the silence from business leaders comes not from contentment with our current state, but because of fear of reprisals. Barr’s political approach to antitrust investigations, including those of tech companies and the automakers, may be a real warning shot to others.

A few weeks ago, Chris Hayes was interviewing California Attorney General Xavier Becerra and said this, “I think about California a lot in terms of the politics of California and how it’s changed over the last 20 years. I mean, this is a state that had this kind of ungovernable — the sense of being ungovernable for a long time because of this sort of red-blue battle, conservatives and liberals in the statehouse. They can never get a budget every year. It was just this like, constant mess. And then basically, what happens when the Democratic Party just whooped the Republicans and the state kind of became governable again, and I wonder if you would like, think about California in the context of the American experience right now. Like, is there some way in which that’s the only way out of this mess that we’re in right now?” The Trump administration is a lawless government and Trump and the Republican party seem hell-bent on killing American citizens in a bizarre ritual of obeisance. As Hayes suggests, the way out of this mess is to relegate the Republican party into irrelevance. 2018 was a start and November must be the next important step.

Originally published at https://thesoundings.com on June 29, 2020.