When at Times the Mob Is Swayed

by Burt Neuborne

  When the Trump candidacy burst onto the scene, the Russians could not believe their good fortune. If Vladimir Putin could have handcrafted an American president incapable of responding effectively to Russia’s resurgence as a dominant world power, that individual would look just like Donald Trump.

  Maybe Putin thought he would literally own Trump. The money that rescued Trump’s failing business empire from bankruptcy and collapse in the 1980s was largely Russian, much of it funneled secretly through German banks. Until we see Trump’s tax returns, which to this point he has refused to release, we’ll never know how deeply in hock Trump still is to Russia.

  Maybe the Russians thought Trump was crooked, ready to participate in shady scams that would make billions for Putin and his corrupt Russian oligarchs. Trump had already made an ill-gotten fortune by repeatedly cheating his creditors, exploiting the bankruptcy laws, misleading his customers, and turning a blind eye to Russian money laundering through his real estate ventures. We now know that Trump was negotiating with Putin’s henchmen for permission to build an immensely lucrative Trump Tower in Moscow while the presidential campaign was unfolding in the United States.

  Maybe the Russians thought Trump was vulnerable to some old-fashioned blackmail. Trump was once the star of a reality TV show, but that would be nothing compared to his alleged starring role on sex tapes Russian intelligence reportedly made during the 2013 Miss Universe Pageant in Moscow. Alert: the tapes may be a hoax. Trump had already paid a small fortune in violation of the campaign finance laws to silence women ready to talk about his raffish sexual escapades; if those tapes or something like them exists, imagine what he’d do to keep them out of the public eye.

  Maybe Putin realized that Trump was incapable of sustaining the level of intellectual effort and disciplined attention needed to lead a rival world power wisely. Trump’s handpicked secretary of state called him “a moron” before being pushed out. His hand-picked chief of staff called him worse before getting the sack. His handpicked secretary of defense quit because he got tired of being the only adult in the room with Trump. Putin probably thought that if you have to play diplomatic poker against someone, it’s a good idea to pick the worst card player in the room.

  Maybe the Russians thought Trump was so driven by uncontrollable ego and prone to untempered rage that he would plunge the American presidency into chaos and ineffectiveness, weakening our ability to lead the world against Russian expansionism.

  Maybe the Russians hoped that Trump would exacerbate the racial, gender, and ethnic fault lines that plague American society, delivering a body blow to Russia’s chief rival. Putin knew that an America at each other’s throats would be no match for a ruthless foreign power like Russia.

  For whatever reasons, we now know that once Trump became the Republican nominee, the Russians mounted a fierce social media disinformation campaign, reinforced by the National Enquirer’s tabloid empire, aimed at electing him—and defeating Hillary Clinton—that reached vast numbers of American voters and may well have flipped the 77,000 voters in Michigan, Pennsylvania, and Wisconsin that gave Trump the presidency.

  What we don’t know is whether Americans knew about and cooperated in Russia’s apparently successful effort to meddle in the 2016 presidential election. Ordinarily, we would look to Congress to get to the bottom of whether anyone connected to the Trump campaign was playing footsie with the Russians in tilting the 2016 election to Trump. After all, Congress blew the lid off the Nixon Watergate scandal and forced the president to resign under threat of impeachment.

  That’s exactly how the Founders assumed separation of powers would work: one branch checks and balances the others. But that’s not how things worked in Washington, DC, during Trump’s first two years in office, where Republicans controlled both houses of Congress and the Supreme Court.

  The initial House “investigation” into Russian meddling was a bad joke—an obvious effort to whitewash any connection between the president and the Russian disinformation campaign. The Senate investigation was earnest but ineffectual, hampered by a lack of expertise, resources, and enthusiasm. That’s where the separation-of-powers issues raised by the Mueller investigation come in. When a craven and/or incompetent Republican Congress refuses or fails to investigate alleged criminal wrongdoing by a Republican president, can either of the other two branches—the executive or the judiciary—step in to fill the investigatory vacuum?

  The judicial branch doesn’t seem like a viable candidate to lead such a backup investigation. Unlike a European examining magistrate, American judges don’t have the authority, resources, or expertise to conduct investigations into potential criminal activity. That’s a prosecutor’s job. In fact, it would probably be a violation of separation of powers to give judges both the power to decide criminal cases and the power to investigate them.

  Federal judges can, however, play an important supporting role by protecting the ability of the grand jury, an age-old hybrid investigatory and adjudicatory institution that straddles the borderline between the executive and judicial branches, to conduct an effective investigation. Once upon a time, grand juries, usually consisting of between sixteen and twenty-three randomly selected citizens, were designed to protect individuals against unjustified criminal prosecutions by making sure that the prosecutor had uncovered enough evidence of guilt to warrant a full-scale criminal trial.

  Over time, though, grand juries have morphed into a powerful investigative tool used by prosecutors. Guided by a prosecutor, modern grand juries can demand documents and call witnesses to testify under oath about potential criminal activity. If the grand jury investigation generates enough evidence of guilt, the grand jury, still guided by the prosecutor, can formally charge an individual with a crime, leading to a full-scale trial before a twelve-person criminal jury. While a judge does not direct the grand jury, judges play a crucial supporting role in the grand jury process by formally convening the jury, supervising it to ensure that it complies with the rule of law, enforcing its legitimate orders and demands, and protecting it against outside interference. Although it never became necessary, that may have included appointing a backup prosecutor if the president or his lackeys tried to fire Robert Mueller.

  Most of the heavy lifting in a grand jury investigation is done by the prosecutor, a member of the executive branch whose job it is to enforce the law. It is the prosecutor who asks a judge to convene a grand jury. It is the prosecutor who urges the grand jury to demand certain documents and to call certain witnesses. It is the prosecutor who questions the witnesses under oath before the grand jurors and explains the meaning of the documents and other evidence presented to them. It is the prosecutor who explains the law to the grand jury. It is the prosecutor who asks the grand jury to vote a formal criminal charge, called an indictment.

  Since the grand jurors know little or nothing about the law, and since grand juries operate in secret without any input from a potential defendant’s lawyers, it is the prosecutor who runs the show. The not-so-funny joke is that a competent prosecutor can persuade a modern grand jury to indict a ham sandwich. In fifty-five years of practice, I have seen only one grand jury reject a prosecutor’s request for an indictment—a courageous refusal by a Nebraska federal grand jury to indict a carload of college students from Colorado arrested while bringing jars of peanut butter to a defiant encampment of Native Americans at Wounded Knee, South Dakota. The prosecutor wanted to indict the students for conspiring to cross state lines to foment an insurrection. We called it the “peanut butter” conspiracy.

  Since Congress failed to conduct a serious investigation and since the federal courts could at best play only a supporting role by supervising the grand jury and protecting its prosecutor, the responsibility for getting to the bottom of Russian interference in the 2016 election rested squarely on Justice Department prosecutors and FBI agents, all of whom serve in the Department of Justice, an executive agency under the direct supervision of the president.

  Th
at was the separation of powers dilemma faced by Robert Mueller, the “special counsel” appointed to get to the bottom of whether the president or his associates had engaged in criminal activity in knowingly assisting the Russian intelligence assault on the 2016 presidential election. Unlike Ken Starr, an “independent counsel” acting outside the reach of the executive branch who made President Bill Clinton’s life miserable, Robert Mueller was an employee of the executive branch, subject to the president’s formal control. For good or ill, Congress had allowed the independent counsel statute to lapse, leaving the job of investigating the president up to officials of the Justice Department under the ultimate control of the president. Could Trump have unilaterally ended the Mueller investigation, just as he unilaterally fired James Comey as FBI director or unilaterally issued the travel ban? He repeatedly threatened to do so. What power did Mueller have to force the president to testify under oath before a grand jury? Why didn’t he use it? What power did Mueller have to require the president to submit to an interrogation under penalty of perjury? Why didn’t he use it? What power did Mueller have to recommend that a grand jury indict the president, either for conspiring with the Russians to subvert the 2016 presidential election, or criminally obstructing the investigation? Why did Mueller punt on whether the president was guilty of criminal obstruction of justice, leaving the final decision to the president’s hand-picked attorney general? In retrospect, we now know that the president never followed through on his threats to force Mueller out. Why not? We now know that Mueller settled for allowing the president to answer a series of pre-negotiated questions in writing, with no possibility of follow-up questioning. Why? We now know that after forcing the disgorgement of reams of evidence resulting in the indictment of twelve Russian intelligence operatives, Mueller concluded that neither the president, nor his close aides had conspired with Russian intelligence to subvert the election. But we do not know the evidence on which Mueller’s conclusion rests. We also know that Mueller, after reviewing the evidence, was unable to decide whether the president or his aides had criminally obstructed the investigation. Instead of making the decision himself on whether the president should be accused of criminal activity, Mueller delegated the final call to the president’s hand-picked political appointee, Attorney General William Barr, who had campaigned for the office by arguing that the Mueller investigation was unwarranted. Why did Mueller stop short of making the call himself? We will never know the answers to those questions until Mueller’s report is made public. And that will be up to Congress and the Supreme Court. It will be a cold day in July when William Barr voluntarily releases anything that harms his boss.

  In assessing the importance of knowing why Mueller pulled up short, it’s necessary to ask what his powers really were. In seeking to answer that question, we start with four uncontestable propositions. First, the Russian effort to manipulate the outcome of the 2016 presidential election was unquestionably criminal—not necessarily because of what the Russians said and did (ugly as it was), but because of what they failed to say. By operating in secret and through phony names, the Russians disinformation agents lied about who the real sources of the fake social media posts were, failed to register as foreign political agents, and failed to report their massive pro-Trump expenditures aimed at influencing the outcome of a presidential election. That’s three federal felonies by the Russians, added to Trump’s felony in directing Michael Cohen to violate the campaign finance disclosure laws by secretly using Trump’s corporate funds to pay women to stop them from talking about Trump’s sexual escapades on the eve of the election.

  Even if every ugly, divisive thing the Russians said during the disinformation campaign was true (a highly doubtful supposition), and even if Americans have a First Amendment right to hear ugly electoral speech from foreign governments (as I think they do), Americans also have a right to know when a foreign nation (or a presidential candidate) is seeking to manipulate our electoral process. So, while Americans who admire Vladimir Putin enjoy a First Amendment right to hear from him, folks who don’t like or trust Putin have an equally important First Amendment right to know when Russian intelligence agents are behind political propaganda aimed at swinging a presidential election.

  Second, Mueller uncovered substantial evidence warranting grand jury indictments against twelve Russian military intelligence agents and several Russian satellites of Putin in connection with the disinformation campaign. Any reasonable American prosecutor in possession of evidence of clearly unlawful election meddling by Russian agents would be shirking her sworn law enforcement duty if she did not seek to learn whether Americans, including Donald Trump and his campaign staff, were complicit in the Russian disinformation operation. As a matter of standard prosecutorial practice, repeated communications between top Trump campaign aides and agents of the Russian disinformation campaign not only justified but compelled prosecutors to follow the trail of possible criminal bread crumbs wherever the trail might lead, even right up to the president’s desk. We now know that Mueller eventually decided that the evidence of communication between persons in the Trump campaign and Russian intelligence agents was not strong enough to establish criminal activity. We are owed an explanation of what the communication consisted of and why it was not sufficient to establish criminal activity.

  Third, although no separation-of-powers issues complicated Mueller’s executive-branch duty to enforce the law by investigating possible violations of the criminal law by Russian agents and American politicians, efforts to investigate the president were chock-full of separation-of-powers problems.

  Robert Mueller, serving as a special counsel pursuant to Justice Department regulations, was unquestionably a member of the executive branch, headed by the president, even though his job title was “special counsel.” Under classical separation of powers, Congress makes the laws requiring mandatory disclosure of a Russian speaker’s identity and campaign spending, but presidents get to call the shots about how the disclosure laws are enforced. Remember President Obama’s arguments in the Dreamers controversy.

  In an ordinary criminal investigation, that would be the end of the matter. Trump, as president, would have unquestioned power over the Mueller investigation, just the way Trump, as president, would have had unquestioned power over implementing the 1952 and 1965 immigration laws in the travel ban case. Trump could have ended the investigation, limited it, or fired Mueller, just as he fired Comey. Period.

  But when it is the president—or people close to the president—who may have violated the criminal law, such a rigid application of classical negative separation-of-powers theory suffers from obvious creaks in the joints. Until Trump, the unwritten rule had been that when the president or a close associate is the target of a criminal investigation, the president should cooperate with a full investigation by the FBI and a federal prosecutor and let the criminal chips fall where they may. Maybe an Abraham Lincoln (or a Barack Obama) would possess the self-discipline and deep sense of ethical obligation needed to set the FBI on himself or his close associates, but most of us would fail that ethical test. Donald Trump never even got a copy of the ethics test paper. Our forty-fifth president has never heard of an ethical norm that can’t be twisted to his own advantage.

  Thus, adhering to strict separation of powers in the Time of Trump would almost certainly have resulted in a presidentially controlled, phony investigation of Russian meddling designed to whitewash the president. The Republican members of the House Intelligence Committee, headed by Devin Nunes, have already shown us what such a phony whitewash would look like.

  Fourth, the fact that the Russians secretly, even unlawfully pumped ugly and divisive speech into the 2016 presidential election campaign with the aim of enhancing Trump’s chances of winning does not call into question the legal validity of Trump’s election victory. The content of the Russians’ electoral garbage wasn’t materially different from the electoral garbage poured into the campaign by Americans. Too much of the 2016 president
ial election took place in Donald Trump’s political sewer. In the end, the Russians merely added to and exacerbated the sludge that Americans were all too happy to pump into their own electoral process.

  It’s fair to speculate about whether and how much the Russian effort assisted Trump. It’s even fair to assert that the Russian campaign may have put him over the top. It’s also fair to prosecute anyone who cooperated with the Russians in refusing to identify themselves. But there is no justification for questioning the electoral result. Sixty-three million Americans elected Donald Trump as the forty-fifth president of the United States. He is legally entitled to exercise the full powers of his office, whatever the dents in his democratic imprimatur.

  The $64,000 question that Mueller sought to answer is whether Trump or his close associates knew about and/or played a role in the Russian deception campaign. If Trump was, in fact, personally complicit in secretly using Russian criminal disinformation to gain the presidency, he is guilty of multiple felonies that fall into the category of “high crimes and misdemeanors.” If that’s what he did, he should be impeached, removed from office, and then indicted. Only a searching investigation could hope to get to the bottom of that factual swamp. But how would Mueller, a member of the executive branch, conduct such a searching investigation of the president if separation of powers grants Trump, as president, the power to squelch it?

  We start with the fact that Mueller possessed unquestioned authority to demand that the president—or anyone else, including Michael Cohen, the president’s personal lawyer—turn over potentially incriminating evidence for use by a federal grand jury, even if that put Mueller in the strange position of issuing orders to his nominal boss.

  In the Nixon tapes case, the special prosecutor (the title then used in the Justice Department regulations) directed Richard Nixon to turn over the Watergate tapes for use before the federal criminal jury trying seven of the president’s close advisors for planning, executing, and covering up the Watergate break-in at Democratic Party headquarters. President Nixon argued that, as president, he could not be directed by a court to follow orders issued by an inferior official of the executive branch. Such a dispute, Nixon claimed, was an intrabranch squabble beyond the power of the courts.