Democracy in the Crosshairs – A Once Noble Party Becomes the Great Enabler

We all know the joke, “How can you tell if a politician is lying? His/her lips are moving.” Lying – or that “lesser vice,” what we gracefully call “manipulating the facts” – isn’t so much of a joke anymore. And while this is a long blog today, stick with it. There are some very important ramifications to short-term political acts with truly long-term destructive potential that threaten the existence of the United States itself.

There are droves of political scientists who are beginning to believe that democracy cannot survive within this toxic soup of misdirection, where the difference between fact and fiction is no longer easily discernable. We are woefully unprepared to deal with the onslaught of truly “fake news” – whether released through foreign powers, powerful financially-unrestricted political voices or our government officials themselves – made increasingly impactful by the viral epidemic-like power of unchecked social media. Mythology, built on mountains of manipulation, has fractured this nation into polarized constituencies separated by profoundly irreconcilable differences.

What makes this trend more challenging is the destruction of the fundamental credibility of US governmental institutions in an era where nations around the world need to share vital clandestine information to stop terrorist attacks. You can no more combat terrorists by making public the facts and processes by which their malevolence can be contained than you can play poker with all your cards facing outwards. Not only are our enemies watching, learning what they need to do to destroy American credibility and manipulate our intelligence agencies, but our allies are slowly learning that sharing information with a US governmental agency risks an entirely new level of leaking sensitive material for political expediency.  So they don’t… or minimize what they share.

With voters – left, right and center – relying on their mythology, not truth, to dictate how they cast their ballots, with battles in our traditional election arenas based on bald-faced lies and manipulated and “interpreted” facts, there is a very serious question of whether democracy works anymore. Does the First Amendment, which may be Donald Trump’s least favorite constitutional provision as he struggles against “mainstream media,” equally support the President’s habit of uttering total and easily disproven false statements, from audience size/popularity to historical, economic and political realities. But how can you contain this new level of political mendacity without eviscerating the First Amendment itself? Decimating the very foundation of the United States itself?

Nothing brings this home like the investigations, by various agencies, of the Trump administration and the individuals surrounding it. You have to think that a businessman, unfamiliar with the statutory restrictions that limit official political power, might just get frustrated after a private sector lifetime of being able to “do what’s necessary” to get the job done. Makes sense. For a while anyway. Likewise, that businessman is further frustrated when he has surrounded himself with family and friends that share that value. That’s pretty much the way Donald Trump and his followers view his mandate.

To some, blasting away these statutory (and even constitutional) restrictions is at the core of Donald Trump’s pledge to “drain the swamp” and get a bloated federal bureaucracy under control… out of most of its traditional regulatory practices. These constituents view any attempt to use those laws against Donald Trump as the old guard, the swamp itself, fighting to resist the very change he was elected to implement. You constantly hear his followers remind all of us that Trump won his election with these very specific promises… and that those who opposed his pledges… lost.

This reality is underscored by the fact that Trump’s GOP controls both houses of Congress, the majority of state governorships and legislatures. While the GOP power is often “on the edge” and a mid-term election could easily alter some of that power dynamic, Republicans want to prove that they can decimate “archaic” incumbencies and shift this entire nation into an “America First” nation, regardless of opposing global forces. A soaring economy, regardless of who is actually responsible, has empowered the Trump constituency in a way that the Democratic Party does not yet seem to understand. The stage is set for a continuous and very ugly set of political conflicts that just might deconstruct the democratic constitutional guarantees without which the United States will not survive.

The new polarized reality, a product of voter manipulation and gerrymandering, is that the success of Republican Party is now wholly dependent on a new, right wing minority (a majority within the GOP, however) which has been fiercely and unwaveringly loyal to Donald Trump, regardless of vulgar words and embarrassing personal behavior (which does seem to fly in the face of fundamental Christian values). The evangelical-dominated Base. So if the entire now Trump-base-dependent GOP elects to use the Trumplike manipulative tools that have brought smiles to the lips of the base, as opponents stand in horror on the hugely negative impact on our democratic system of checks and balances, those smiles turn into “I gotchya” broad-faced grins.

Think of the joy that can be brought to swamp haters by targeting the Department of Justice and all of its investigative powers (which includes the FBI), a federal agency that has been responsible for prosecuting civil rights, equal protection (regardless of race, color or creed) and comparably-unpopular (with the base) social legislation, and bringing that institution to heel. Oh, and it was the DOJ (Deputy AG Rod Rosenstein) that appointed and empowered Special Prosecutor, former FBI director Robert Mueller, III, a man whose indictments and investigatory efforts threaten the President the most.

The fun is enhanced by pretending to hide under the mantle of “law and order” by simply stating that the intention is only to out and remove “a few bad apples” from the FBI and DOJ, most of whom have already left government service. Because the DOJ is unique among governmental agencies, the most highly statutorily defined and limited cabinet bureaucracy, and because those statutes require absolute legal neutrality in its operations, that agency is clearly an obstacle to swamp draining and allowing Donald Trump to implement his often-unconstitutional platform. But the DOJ reports to the President, right? Within severe legal limitations!!!

Since Congressional investigatory committees are still under GOP control, reining in the statutorily neutral DOJ and the FBI are essential in protecting Donald Trump and his immediate entourage from possible criminal charges. Impugn the DOJ and the FBI, especially long before a possible shift of power if the Republicans lose one or both of their majorities in Congressional houses by the November mid-term elections, and the ability to topple the President probably collapses.

Start with a heavily redacted memo (3 ½ page document dated January 18th and released on February 2^nd) from GOP members of the House Permanent Select Committee on Intelligence (under a cover letter to committee chairman Devin Nunes – the memo’s author – from Counsel to the President, Donald F. McGahn, II), already decried by the FBI and the Democrats on that committee as a deeply flawed interpretation of many pages of underlying material (which remains classified), claiming that a surveillance warrant, issued under the Foreign Intelligence Surveillance Act (FISA) against former Trump campaign advisor, Carter Page, was part of an overall unlawful FBI effort from highly biased, anti-Trump FBI agents acting outside the scope of permitted conduct. They were looking at Page’s potential ties to Russia, a place he once lived. You can readily find that cover letter and memo online.

In a Fox News interview on February 2^nd, Devin Nunes gave a shocking answer to a rather obvious question: "Did you read the actual FISA applications," Fox anchor Bret Baier asked, referring to the documents that the memo cites in part as evidence of improper conduct by US law-enforcement officials. “No, I didn't" Nunes responded. But that memo was more than enough to serve as presenting indisputable facts to many, including one Arizona Republican legislator: GOP Arizona Representative Paul Gosar tweeted that alleged the FBI activity detailed in the document is, “not just evidence of incompetence but clear and convincing evidence of treason.”

Democrats were denied the ability to issue a simultaneous memo because of concerns of releasing classified material. Donald Trump conveniently declassified the relevant portions of the GOP memo, I might add. And also conveniently, Trump rather openly chuckled, over an open microphone, as this memo is part of his effort to declaw any investigation under the mantle of the DOJ that could threaten him personally. Like Mueller.

Such attacks against the DOJ are clearly Trump-led efforts either to find justification to fire Robert Mueller and end his Trump investigation or so-taint his efforts as part of this DOJ/FBI anti-Trump bias that GOP members in Congress could simply refuse to consider any potential criminal charges that might stick to Donald Trump… as a political bias that should simply be ignored. As long as Mueller’s investigation remains part of the DOJ, in addition to the credibility issues noted above, there are serious questions as to how a direct implication of Donald J Trump by Mueller might actually play out.

Which brings me to an Op-Ed piece in the February 1st Los Angeles Times by Ross Garber, who co-chairs the Government Investigations Department at the law firm of Shipman & Goodwin LLP, in Connecticut and has served as lead defense counsel in impeachment proceedings of three Republican governors. I am skeptical that special counsel Robert S. Mueller III will conclude that President Trump acted entirely appropriately regarding the FBI’s inquiry into potential crimes connected to Russia’s meddling in a U.S. election. Mueller, a career law enforcement official and former FBI director, is far more likely to find that the president’s behavior was improper and perhaps even amounted to obstruction of justice.

Then what? Will the president be charged with a crime? Will Mueller send a report to Congress so that it can initiate impeachment hearings? I think he will do neither. But that isn’t the end of the discussion.

No U.S. president has ever been charged with a crime, and not because all of them were angels. There are good legal arguments that it is unconstitutional to indict a sitting president, particularly in light of the impeachment remedy. Even if a president can be indicted, there is reason to conclude that a criminal prosecution would be unwise. An indictment would begin a long, contentious court fight, which would disrupt and perhaps destabilize the government, and which would have an uncertain end. Would a court sanction the arrest of the president? Would the attorney general order the FBI or U.S. marshals to take him into custody? Could the president pardon himself?

Even the irrepressibly aggressive independent counsel Kenneth Starr declined to seek an indictment of President Clinton, despite believing the facts and law supported it. Mueller almost certainly won’t take on that fight.

Perhaps the special counsel could turn the results of his investigation over to Congress, which could initiate impeachment proceedings. Starr took this route. But, unlike Starr, Mueller doesn’t have the authority to submit a report to Congress. Starr was appointed as independent counsel under a statute that authorized him to “advise the House of Representatives of any substantial and credible information … that may constitute grounds for an impeachment.” But Congress allowed that statute to expire. The regulations under which Mueller was appointed do not authorize him to disclose anything to Congress.

Could Mueller just pull a Comey and publicize his findings anyway? Perhaps, but that would be wrong, and Mueller was presumably paying attention to the justifiable bipartisan outrage that followed Comey’s disclosures about the Hillary Clinton investigation. He probably is also aware that his boss, Deputy Atty. Gen. Rod Rosenstein, called Comey’s revelations ‘a textbook example of what federal prosecutors and agents are taught not to do.’…

All of this assumes that Rosenstein (and Sessions) is still in his job when Mueller completes his report. It also assumes that Congress doesn’t subpoena the report, in which case Rosenstein, and his boss, the president, may invoke executive privilege — there are serious separation of powers issues at play — which also could throw the matter into the hands of the courts… We can be sure that Mueller is drafting his report with an eye to how it will play to Congress and the public. We can’t be sure the public, or Congress, will ever see it.

It’s strange to watch those GOP House committee members, plus House Speaker, Republican Paul Ryan, lie and tell the world that none of this impugns the FBI or the DOJ. That none of this impacts the Mueller investigation. But while these folks may have learned the notion of saying a lie enough that it is soon taken as truth, from the grand master of that technique, they just aren’t very good at it. Apparently, nobody really believes any of that… and morale at the FBI, the agency that is supposed to protect us from terrorists, violent crimes and major fraud, has never been lower.

Will someone tell me how democracy survives this chaos? And is the legacy of the Grand Old Party to be remembered as the great enabler of a democracy-destroying dictator wannabee, a destructor of the system of checks and balances that our Founding Fathers built into the Constitution and the greatest destructive internal force to threaten the existence of the United States since the Civil War? And are we so completely polarized that we just might expect the Democrats to do the same thing if the roles were reversed? Constitutional crisis, anyone?

I’m Peter Dekom, and I am picturing a bored history student a hundred years from now reading about how the once-successful American democracy ended.