Mueller and the Court

Alan Zendell, August 5, 2018

As frequently noted here and elsewhere. Donald Trump is a master of obfuscation. While those of us who are trained in logical discourse and scientific method are often appalled by his relatively incoherent style, it certainly works with his base. His friends have compared his style to throwing a grenade into a room and then rushing in to seize what he wants before everyone else can sort through the resulting chaos.

There’s really no argument about that. Trump himself has touted his ability to keep his adversaries off balance with his unpredictable behavior. He revels in creating confusion with self-contradictions and made-up facts, not to mention outright lies. Whether this represents a lack of character and integrity or a canny ability to manipulate people really doesn’t matter. What does is that the rest of us have to keep our eyes on the ball.

Every athlete knows that, regardless of the game he or she plays. Athletic competition is about gaining advantage through misdirection and fakery, whether it’s throwing a pitch, hiding a quarterback’s true intentions, shielding your king, or slipping behind a defender undetected. Trump throws off so much chaff it’s sometimes difficult to focus on what’s significant.

I find it helpful to step back from the daily turmoil and ask myself what is likely to stand out most when we look back on it a year from now. It won’t be North Korea, NATO-bashing, or the Trade War – those will take years to play out. The mid-term elections may ultimately determine the direction of this country for years to come, but they’re still three months away. What’s left is the fascinating confluence of the coming confirmation hearing of Brett Kavanaugh to the Supreme Court and the Mueller investigation into Russian interference of possible obstruction of justice, and the two are not unrelated.

As Trump continues to make various noises about ending the investigation he, in typical fashion, leaves everyone guessing about whether he might fire Attorney General Jeff Sessions or Deputy AG Rod Rosenstein. One never knows what a judge might rule, but based on Trump’s constant verbal war on Mueller, the question of whether his attacks constitute criminal obstruction is not going away.

Add Judge Kavanaugh to the mix, and you have a fascinating potential convergence of events. Kavanaugh has a long history of favoring a strong presidency, which means he doesn’t necessarily agree with previous court decisions that limited presidential powers. Much has recently been made of his 1999 opinion that the Court may have been wrong in forcing Richard Nixon to turn over the Watergate tapes. With the Mueller investigation closing ranks around the president’s inner circle, Kavanaugh’s nomination triggered concerns that his vote might make the Supreme Court side with Trump in any dispute with Mueller.

The Republican-controlled Congress has demonstrated that when they have to choose between alienating Trump’s base at election time and standing up against his more outrageous actions, they will sit on their hands. Perhaps the clearest indication of that is Paul Ryan’s refusal to speak out against Trump, though it’s clear he feels tortured by having to choose. Prior to accepting his role as Speaker of the House, Ryan had a reputation for integrity. He was a staunch conservative, but even those who disagreed with his political views expected that his priority would be upholding the Constitution.

The reality has been that he doesn’t have the stomach for the kind of down-in the-trenches warfare Trump prefers. At least until the next Congress is sworn in, the Supreme Court is our last line of defense against Trump’s attacks on our system.

The timing of Kavanaugh’s eventual confirmation is critical. If it occurs before both the election and the release of Mueller’s findings, it could be the determining factor in everything that follows. Can Mueller force Trump to testify? Could he successfully subpoena Trump’s financial records if he deems them relevant to his investigation? And which of Trump’s private conversations would be ruled privileged if the question had to be decided by the high Court?

In truth, it’s not clear how Kavanaugh would rule. Consider that he was part of the Ken Starr team that investigated President Clinton, which many people thought had improperly infringed on presidential power. Consider also that Kavanaugh is on record in 2016 citing the Nixon decision as one of the greatest moments in American judicial history, when judges “stood up to the other branches, were not cowed, and enforced the law.”

The next three months may turn into a real cliffhanger. It’s not an exaggeration to say that when we look back on what happens between now and the end of 2018, it may be as critical to our future as Trump’s victory in 2016. I shudder to think of Trump unfettered by a Court that is disinclined to limit his usurpation of power from the other branches of government.

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