Let’s assume that Andrew Weissmann had a major role in writing up the Mueller Report, seeing he was the special counsel’s head prosecutor by all indications. Consider this elegantly cruel manipulation in broad daylight in the much-commented second volume (should we call the report Kill Trump Volumes 1 & 2?) on the possibility of obstruction of justice charges and whether to arrive at a “binary” conclusion that says either guilty or not guilty:

Fairness concerns counselled against potentially reaching that judgement when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes that he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s decision that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

And of course, the report then goes on to list President Trump’s unseemly conduct on a number of accusations and then explore a lengthy legal theory about why they couldn’t come to a “binary” decision – yes or no on the charges of obstruction of justice. It does precisely what it says is a character smear with no recourse before a jury of peers or some other impartial adjudicator.

And then it hands off the report to Congress, suggesting between the lines that impeachment is the only logical way out of the legal conundrum that they themselves wove out of dubious cloth. I can imagine Adam Schiff and Jerry Nadler, (and everyone else who want Trump’s presidency annulled by one or another means), chortling with delight as their aides pointed out the relevant passages.

And at the end they have the gall to say that no one is above the law.

But that’s wrong. President Trump is being treated as if he’s below the law, not above it. If not, he would be entitled to exactly the process that Weismann outlines in the quote above, rather than a political hit job on Trump’s running roughshod over accepted D.C. norms and regulations. Which is basically what volume II is.

From pages 215 to 218 of the report, they list the famous 10 (some say up to 15) incidents of potential obstruction of justice. All of them have been previously leaked in some form or another. Many are unseemly and show that President Trump’s cabinet (which Ben Domenech recently wrote in The Transom was the equivalent to inviting the first 2000 people through the gate at a Bruins game to apply for the various White House jobs – very funny but a little too flippant if a little too real at the same time) actually respected the legal and political processes far more than he did.

Yes, some of it is uncomfortable, especially his orders to former White House Counsel Don McGahn regarding AG Session’s recusal, orders that McGahn refused to carry out through delays and various stonewalling tactics apparently. And here Weissmann’s paradox – a nifty steel trap that is circular in its logic – works beautifully. It goes something like this:

Because accusing the President of obstruction of justice would cripple his administration, we have raised the bar for obstruction to a higher level than we would otherwise and when the SOB is impeached, we’ll hopefully have provided the evidence for criminal charges when he’s no longer in the White House. We’ll give you a break Mr. President and let the whole world know that you’re basically a criminal in so doing.

That is Kafka, pure and straight.

With no way out except precisely the way Trump has been fighting it: in the court of public opinion in social media and in the media in general. Which in part was what got the president in trouble. Had he not tweeted about the investigation there would be a much shorter list of possible obstruction incidents. But had he not tweeted, he wouldn’t have alerted his base and the world in general to what has been essentially a political process from the get-go.

In a speech given at Hillsdale College in May of last year, John Marini advanced a fascinating and disturbing theory that links Watergate directly to the Mueller probe and the function of the special counsel or special prosecutor. Before you start cheering in the hope that it adds another plank in the obstruction narrative that even now is evolving into a conflicts and cover-up narrative, think again. Marini’s speech was about how Watergate was in essence a savage pushback by the administrative state against an electorally popular president (Nixon swept the 72 elections to crush McGovern) who was reportedly planning to reign in government in DC and cut back the sprawling edifice that every president from FDR through LBJ had helped enlarge. Here’s Marini:

I recall being struck at the time of Watergate by the fact that there was a tremendous mobilization of partisan opinion against Nixon, but very little partisan mobilization in Nixon’s defense. The reason for this, in retrospect, is that it is difficult—if not impossible—to mobilize partisan support once the contest is removed from the political arena and placed in the hands of prosecutors, grand juries, and judges. Nixon believed, correctly, that his partisan enemies were trying to destroy him. But even Republicans in Congress came to accept Watergate primarily in legal terms. The most remembered line from a Nixon defender was that of Senator Howard Baker: “What did the President know, and when did he know it?” Nixon quickly became boxed in; he was limited to making a legal, rather than political, defense of his office.

Trump – instinctively rather than as a reasoned strategy even if he was already in his 20’s and working in real estate when the Watergate scandal played out across America and the world – has refused to make the same mistake as Nixon. He’s fought back politically recognizing and declaring to the world that Mueller has always been a political, rather than a legal process.

History may yet prove him right.

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