February 14, 2020

Increasingly, it feels like a race to see who’s going to make it into the legal system first: the people trying to destroy the rule of law, or the people trying to defend it. Since his acquittal by the Senate on the impeachment charges leveled by the House, Trump seems determined to consolidate his power, using the tools of the government to reward his supporters and punish those who have crossed him.

After fervently denying it during the impeachment inquiry, Trump acknowledged to journalist Geraldo Rivera last night that he had, indeed, sent his lawyer Rudy Giuliani to Ukraine to look for damaging information on the Bidens. “Here’s my choice: I deal with the Comeys of the world, or I deal with Rudy,” Trump said. James Comey was the former director of the FBI, who oversaw the investigation into Russian attacks on the 2016 American election. Trump’s firing of Comey for that investigation led to the appointment of Special Counsel Robert Mueller. (Both Comey and Mueller are Republicans.) “Are you sorry you did that?” Rivera asked, referring to sending Giuliani on a dirt-digging investigation. “No, not at all,” Trump replied.

Then, today started with Trump responding to Attorney General William Barr’s interview of yesterday, in which Barr said that Trump had never asked him to intervene in a criminal case (wording that seems to suggest he has, indeed, asked him to intervene in cases that are not yet criminal cases). Trump responded: “This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to!” (Under our constitution, he does not have the right to intervene in the legal system.)

The news from the rest of the day has confirmed that Trump, and evidently Barr, see the Department of Justice as a tool for Trump to reward friends and take revenge on enemies.

On the one hand, Trump and Barr are defending their friends. They have gone to bat for Roger Stone, an accomplice in the machinations that helped the Trump campaign in 2016; he was the link to Wikileaks, which dumped Democratic emails the Russians had hacked. Today we learned that Barr has put together a group of outside prosecutors to revisit the prosecution and conviction of Trump’s former National Security Advisor Mike Flynn, as well as other political cases. This is highly unusual. The new prosecutors are interviewing DOJ prosecutors about their investigations, prosecutorial decisions, and why they made those decisions. Essentially, Barr, along with his newly appointed associate Timothy Shea, who replaced Jessie Liu—who resigned earlier this week—is second-guessing the work of career DOJ lawyers. Flynn pled guilty to lying to investigators about his contacts with Russian agents in 2016 in exchange for his cooperation with the Mueller investigation. (It was Comey’s refusal to let the Flynn case go that led Trump to fire Comey.)

Barr’s Department of Justice is also accepting information about the Bidens in Ukraine from Trump’s lawyer Rudy Giuliani, and Barr has set up his own investigation of Ukraine’s involvement in attacking the United States in the 2016 election (our intelligence agencies have established that it was Russia that attacked the election, and that accusations that the culprit was Ukraine are Russian propaganda).

We also learned today that the Department of Justice has told lawyers for former FBI Deputy Director Andrew McCabe has that he won’t face criminal charges for allegedly lying to investigators about talking to the media. McCabe ran afoul of Trump over the Russian investigation when he took over the FBI as Acting Director after Trump fired Comey. McCabe continued the Russia investigation, and arranged the interview in which Flynn pled guilty to lying about his Russian contacts. Trump fired McCabe 26 hours before his scheduled retirement, thus denying him a full pension.

While this announcement makes it sound like the Department of Justice is adhering to the rule of law, in fact, the announcement comes on the same day the Justice Department had to release the details of the McCabe investigation to the public under a Freedom of Information Act lawsuit brought by Citizens for Responsibility and Ethics in Washington.

Those materials revealed that DOJ prosecutors tried to get a grand jury to indict McCabe in September, but the jurors thought there was no cause. Still, the DOJ lawyers did not want to drop the case. The judge, Reggie Walton, a George W. Bush appointee, said: "I understand there are political implications and other implications involved in reference to whether you go forward. And I fully appreciate the complexity of the assessment, especially — unfortunately, to be candid — in light of the way... the White House [is acting], which I don't think top executive officers should be doing…. [T]he public is listening to what's going on, and I don't think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted," Walton said. "I just think it's a banana republic when we go down that road…."

Rather than telling McCabe he was clear back in September when the grand jury declined to charge him, they left him hanging until today, when the materials exonerating him would become public.

On the other hand, though, while Barr’s DOJ is using the law as a weapon against Trump’s enemies, other government lawyers are trying to bring Trump’s people to justice. We learned today that federal prosecutors in New York have contacted witnesses and collected documents in an investigation of Giuliani and his activities along with those of his associates Lev Parnas and Igor Fruman, including their actions in Ukraine, and including their attacks on US Ambassador to Ukraine Marie Yovanovitch. Trump has called this a “witch hunt,” and had told New York to stop its lawsuits, implying that he will punish the state’s residents until it does. New York is also investigating Trump’s family finances and those of his businesses.

So here we are, with our Department of Justice at the center of a tug of war over whether it will become a political arm of the president or whether it will uphold the rule of law. If its politicization is allowed to continue, it will destroy the rule of law in America and turn us, as Judge Walton said, into a banana republic.

But my eye is actually on something else tonight. Have you noticed that every single person Trump goes to bat for is someone from his 2016 campaign who worked with Russians? And those he is determined to destroy are people who were uncovering those relationships?

Russia. Again. All roads really do seem to lead there.

Happy Valentine’s Day, everyone. Like you all, I celebrated the memory of Teddy Roosevelt’s wife and mother, who both died on this day in 1884 within hours of each other, sparking Roosevelt’s escape to the Dakota Territory to recover, which, in turn, sparked his conviction that the nation must clean up its cities and his meteoric rise to the presidency. That’s what February 14 is all about, right? :)

P.S. In the two hours since I wrote this draft and then sat down for dinner with my sweetie, the story has broken that Secretary of State Mike Pompeo met in Munich on Friday with Russian Foreign Minister Sergey Lavrov in a meeting the American side tried to keep hidden. We learned it from Russian journalists, one of whom said that U.S. officials had asked for no press conference, joint statements, or photographers at the meeting.

Notes:

https://www.cnn.com/2020/02/13/politics/trump-rudy-giuliani-ukraine-interview/index.html

McCabe: https://talkingpointsmemo.com/news/i-dont-think-ill-ever-be-free-of-this-president-and-his-maniacal-rage-mccabe-says

https://www.nbcnews.com/politics/justice-department/justice-department-drops-leak-case-against-former-fbi-acting-head-n1137066

https://www.citizensforethics.org/crew-gets-mccabe-termination-documents/

Giuliani: https://www.washingtonpost.com/politics/as-impeachment-trial-ended-federal-prosecutors-took-new-steps-in-probe-related-to-giuliani-according-to-people-familiar-with-case/2020/02/14/7893bfb0-4e8a-11ea-bf44-f5043eb3918a_story.html

Flynnhttps://www.nytimes.com/2020/02/14/us/politics/michael-flynn-prosecutors-barr.html?referringSource=articleShare

Russian meeting: https://www.politico.eu/article/state-department-keeps-quiet-as-pompeo-meets-lavrov-in-munich/amp/?__twitter_impression=true