True Crimes and Misdemeanors: The Investigation of Donald Trump

Why True Crimes and Misdemeanors: The Investigation of Donald Trump? Why not High Crimes and Misdemeanors: The Investigation of Donald Trump? After all, Article II of the Constitution of the United States of America states that Congress may remove a president for impeachment and conviction of “Treason, Bribery, or other high Crimes and Misdemeanors.” (my italics) It does not say “true” crimes and misdemeanors. I read the book and could not find an explicit explanation.

Alexander Hamilton is cited (No. 65) most often describing impeachable offences as not only the crimes of bribery and treason, but also non-crimes (contra Alan Dershowitz in 2019 but consistent with Dershowitz in 1999, as well as the vast majority of constitutional scholars), “offences which proceed from the misconduct of public men, or, in other words, from the abuse and violation of some public trust. (my italics) They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Was Donald Trump guilty of an abuse and violation of some public trust in the above sense in 2019 when he asked the president of Ukraine to investigate the Bidens, Joe and his son, Hunter, with respect to the latter who served on the Board of Burisma, a large gas producer in the Ukraine though he had no credentials to do so? His remuneration had been extremely high.

The problem was that Ukraine was a foreign country, not the FBI. Further, Trump not only made such a request, but let the President of the Ukraine know both directly and indirectly that military aid would not be forthcoming as promised by the State Department and authorized by Congress unless and until that President announced that there would be such an investigation. Further, the meeting in the White House of the President of the Ukraine with the President of the U.S. would also not be scheduled until such an announcement was made.

Did the evidence support such a charge? If it did, did such behaviour constitute a “high crime and misdemeanor,” that is, an abuse and violation of a public trust? In other words, was the act a true crime or misdemeanor? But it did not have to be a crime supposedly. Then was it a true breach of a public trust when Donald Trump held up Congressionally approved military aid to an ally facing an effective military invasion by Russia in the east of the country?  Was it a breach of public trust if the President of the United States would only meet a foreign leader if and only if that leader announced that he was looking into possible corruption by the man (and his son) likely to be his opponent in the 2020 presidential race? The accusation that President Donald Trump also engaged in obstruction of Congress, the second article of impeachment, for impeding Congress in its lawful Constitutional responsibility to investigate such a charge, was also largely a judgement since the facts of the case were readily apparent.

There was no impeachment trial as a result of the previous Mueller Report and inquiry into Russian interference in the 2016 election, although there were many indictments. In the case of the second major scandal, that of Ukraine in 2019, there was a trial. The House of Representatives by a clear majority (all Democrats) voted to impeach. The Senate by a majority (all Republicans) voted to acquit.

If the volume had been about simply the impeachment of Donald Trump, it could have been 122 pages or, at most, 172 pages. Instead, it runs to 451 pages. For the book is about legal strategy and tactics, about how and when to “turn” lower miscreants to inform on higher ups, but it is really mostly about politics as a public relations exercise rather than either a search for truth or for implementing the best policies to serve a nation and its people.

There is almost universal agreement that Donald Trump is a master at appealing to his base and manipulating the narrative of events to motivate that base. It is not so clear why he is surrounded by and supported by toadies and sycophants. There is the suggestion that Mitch McConnell, the Republican leader in the Senate, tolerates Trump because McConnell can get the conservative judges he wants appointed and, at the same time, forestall the Democratic Party agenda. (47)

However, the issue is not just about the Republicans and the reckless, narcissistic, egocentric, lying Republican president, but also about Nancy Pelosi, the Democratic Speaker of the House of Representatives. She too governs her actions to accord with the sentiments and priorities of her supporters. (348) Pushing for impeachment when the body politic was not ready and when the majority of Democratic members in the House of Representatives were not ready, was not her path, whatever the crimes, misdemeanors and breaches of trust for which the president may have been guilty.

However, it is not enough to appeal to your supporters to ensure you bring them along with you. There are the techniques for doing so. When you have sensational news, do you dribble it out over time or make a big splash all at once as when Wikileaks released the emails of the National Democratic Committee revealing how they had pushed events to favour Hillary Clinton over Berrnie Sanders? “The WikiLeaks provocateurs had learned from their experience in July, when they dumped all the DNC emails on the same day. In October, WikiLeaks parceled out the Podesta emails in piecemeal fashion – a new set posted each day in the final stages of the campaign – so that the damage to the Clinton campaign would accumulate. As in the summer, Trump embraced the WikiLeaks disclosures and the drip-drip pace of the Podesta disclosures gave Trump the chance to pump up the revelations each day.” (23)

However, according to Toobin, a reverse tactic was followed in the case of the Ukraine story versus that of the Russia revelations. “The zeal and skill of the news media (especially The New York Times and The Washington Post) kept the Russia story in the headlines every day. In the long run, though, the drip-drip of news coverage wound up working to Trump’s benefit. By the time the Mueller investigation concluded, the public knew much of the story and had become acclimated, if not inured, to its outrages. (In contrast, the story of Trump’s corrupt overture to the president of Ukraine was revealed in a single splash and thus retained its shock value.)” (37)

Why was drip-drip better than the single splash in the case of WikiLeaks release of emails but the single splash was better in the case of Trump’s troubles with Russia and the Ukraine? Toobin does not tell us. Perhaps there were factors in each embarrassing situation that made one technique better than the other for that scandal. If there is an explanation, we do not get it.  What about the use of repetition that can result in either conviction about a false claim or indifference to the substance of the tale? “Through sheer repetition of the Trump gloss on the Trump Tower story, it lost much of its ability to appall and outrage.” (109) Does repetition of a lie result in both widespread conviction of truth but indifference to the moral horror of it all? Further, some lies are unequivocally obstructions of justice, such as denying he tried to fire Mueller and giving instructions to the White House counsel, Don McGahn, to rewrite the narrative of what actually happened. (201-203)

Thus, although the book is an excellent recounting of the disastrous and unexpected loss of the presidency by Hillary Clinton to Donald Trump in the last ten days of the presidential election in 2016 followed by one act of malfeasance by Trump or one of his enablers and then another and another, in the end we learn very little about matching revelations to the public with proper timing and technique of releasing information on the scandal. What we are offered instead is a series of moral tales.

In James Comey’s interactions with Donald Trump prior to Comey’s firing we learn that it is a huge mistake to try to appease a bully.  From Trump’s misuse of Rod Rosenstein in firing Comey, we learn the huge cost of naivete in dealing with a president with the character of a mobster reverberating on Rosenstein by turning a taciturn superb professional into a conflicted paralyzed individual torn between “grim foreboding and manic despair.” (65)  When Jeff Sessions as Attorney General told Donald Trump that, unbeknownst to himself since he had recused himself from the Russian probe, Rod Rosenstein had appointed Robert Mueller as special counsel to investigate the Russian involvement in the 2106 American election and any matters related thereto, his deep and longstanding loyalty to Trump was not reciprocated as Trump turned on him for recusing himself, even though it was both the proper and only thing he could do. With Trump, loyalty was not a two-way street. Further, though the specific reference was to Marc Kasowitz, Trump’s lawyer, Sessions “suffered the fate of nearly everyone who became identified with the president, public humiliation.” (94)

Mueller never responded to Trump’s characterization of himself as motivated by resentment and revenge (a clear projection by Trump), including his alleged grievance concerning his request for a fee refund when he resigned from the Trump National Golf Club. Mueller’s insistence on a total blackout also on news of his progress meant that he lost the advantage of both drip-drip and of splash when he provided such an equivocal conclusion on the issue of obstruction of justice. When probity confronts perfidy, probity seems to lose. Silence also invited misinterpretation. Mueller “was always doing a narrower job than Trump’s adversaries hoped and the president’s allies feared.” (107) However, if Mueller preferred silence instead of public relations, why did he indict Putin’s Russian allies if they would never be tried and it was just a public relations exercise? (154) Toobin never reconciles when silence and when public relations is to be used as a technique.

Issue after issue illustrates the duplicity and dishonesty of Donald Trump. Robert Mueller was summoned to the White House by Donald Trump to proffer advice on a replacement for James Comey as head of the FBI. (Mueller held that position for 12 years prior to Comey whom Trump fired.) Mueller went to the Oval Office out of a sense of responsibility to the office of the president. When Mueller accepted the position as special counsel the next day, Trump in a rage of resentment claimed that Mueller had come to him to get his old job back but Trump had declined. Mueller never came to the office for that purpose. According to Trump, Mueller agreed to head the inquiry into Russian interference in the 2016 election because of his ire over his rejection and determined to participate in a vendetta against Trump. (2)

Trump never managed to get Mueller fired as hard as he tried. Instead, according to Toobin, when Mueller ended up testifying before Congress, he “did not look good. The grind, the pressure, the criticism of the previous two years had taken their toll. The seventy-four-year-old who testified in 2019 was a different, diminished man from the seventy-two-year-old who became special counsel in 2017.” (324) Trump had outwitted him. He never appeared to testify on the advice of his lawyers that ran contrary to Trump’s pugilistic instincts. Mueller, because of time constraints and perhaps a latent respect for the office, never issued a grand jury subpoena. Why? “He couldn’t bring himself to launch a direct legal attack against the president of the United States.” (197) The same reticence did not allow him to draw a clear conclusion that Trump had been guilty of obstruction of justice but only a convoluted conclusion that the inquiry could not exonerate Trump given the evidence.

If Mueller was not fired, a myriad of others were. The Trump presidency appeared to be a continuation of his television show, The Apprentice, as the declaration “you’re fired,” was repeated over and over again unless the individual quit first, although Trump always claimed to have fired the individual first. The great virtue of Toobin’s book is not only that it is well written, that it includes numerous illustrative anecdotes (the series of Comey meetings with Donald Trump; Trump’s use and abuse of Rod Rosenstein in firing Comey), but that it brings together what we have listened to over the last almost four years and reveals clearly and explicitly the character of the Trump presidency.

We may not learn anything particularly new of substance, but bringing the whole tale together has a cumulative effect, not as drip-drip or one big splash, but as a continuing tale of perfidy, incompetence, lack of empathy, cruelty, ignorance, focus on loyalty to himself rather than mastery of policy issues, and certainly not adherence to principles and concern for others. It also throws light on the character of the emergence of celebrity politics.