tag:theconversation.com,2011:/uk/topics/robert-mueller-38819/articlesRobert Mueller – The Conversation2023-08-31T12:19:42Ztag:theconversation.com,2011:article/2121882023-08-31T12:19:42Z2023-08-31T12:19:42ZSpecial counsels, like the one leading the Justice Department’s investigation of Hunter Biden, are intended to be independent − but they aren’t entirely<figure><img src="https://images.theconversation.com/files/545070/original/file-20230828-25-umot03.jpg?ixlib=rb-1.1.0&rect=35%2C17%2C5955%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General Merrick Garland announces on Aug. 11, 2023, that he has appointed a special counsel to handle the investigations into Hunter Biden.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-merrick-garland-conducts-a-news-conference-news-photo/1592786287">Tom Williams/CQ-Roll Call, Inc via Getty Images</a></span></figcaption></figure><p>On <a href="https://www.npr.org/2023/06/20/1087173827/hunter-biden">June 20</a>, 2023, <a href="https://theconversation.com/a-brief-history-of-colorful-presidential-relatives-from-alice-roosevelt-to-hunter-biden-208183">Hunter Biden</a>, the second son of President Joe Biden, entered into <a href="https://www.collinsdictionary.com/us/dictionary/english/plea-agreement#google_vignette">a plea agreement</a> with prosecutors <a href="https://www.pbs.org/newshour/nation/hunter-biden-agrees-to-plea-deal-for-income-tax-and-illegal-weapon-charges">related to tax-related charges and the illegal possession of a firearm</a>.</p>
<p>On <a href="https://www.politico.com/news/2023/07/26/hunter-biden-plea-deal-00108276">July 26</a>, <a href="https://www.politico.com/news/2023/07/26/proposed-hunter-biden-plea-agreement-00108426">the plea agreement</a> was challenged by <a href="https://abcnews.go.com/Politics/maryellen-noreika-trump-appointed-judge-weighing-hunter-bidens/story?id=101670909">the judge in the case</a>. <a href="https://www.npr.org/2023/07/26/1190211798/hunter-biden-plea-tax-charges">She wanted to know more</a> about any immunity being offered, given that Hunter Biden is under several <a href="https://www.nytimes.com/2023/08/11/us/politics/hunter-biden-legal-troubles-timeline.html">federal investigations</a>.</p>
<p>After the prosecution and defense <a href="https://theconversation.com/hunter-bidens-plea-agreement-renegotiation-is-rare-a-law-professor-explains-what-usually-happens-210531">failed to renegotiate</a> the deal, Attorney General Merrick Garland announced on Aug. 11 that <a href="https://www.justice.gov/usao-de/meet-us-attorney">U.S. Attorney David Weiss</a>, the Donald Trump-appointed lead federal prosecutor for Delaware who had already been investigating the case, had been <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-2">appointed as special counsel</a> so that he would have “the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law.”</p>
<p>After the appointment, Sen. Dick Durbin, an Illinois Democrat, <a href="https://www.durbin.senate.gov/newsroom/press-releases/durbin-statement-on-the-appointment-of-us-attorney-weiss-as-special-counsel-to-investigate-hunter-biden-matters">praised Garland</a> for being “committed to avoiding even the appearance of politicization at the Justice Department.”</p>
<p>Sen. Lindsey Graham, a South Carolina Republican, however, <a href="https://www.foxnews.com/media/sen-graham-slams-doj-special-counsel-hunter-biden-probe-dumb-political-decision">attacked Weiss’ appointment</a> as “<a href="https://youtu.be/nxmlZMIEqio?feature=shared&t=376">a dumb political decision,</a>” despite having <a href="https://www.cassidy.senate.gov/imo/media/doc/Hunter%20Biden%20Special%20Counsel%20Letter%20FINAL.pdf">previously supported it</a>. </p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a>, I believe that while special counsels are intended to be independent, in practice they aren’t entirely. Here’s why.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man stands at a lectern and gestures with one hand." src="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=717&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=717&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=717&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=901&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=901&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=901&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">David Weiss, pictured here in 2009, has been a federal prosecutor in Delaware since 2007. He is now also a special counsel investigating Hunter Biden.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/IranSmugglingCharges/583ef025e2af4147807840b335c4e391/photo">AP Photo/Ron Soliman</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Justice Department can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Justice Department, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, <a href="https://theconversation.com/what-does-the-vice-president-do-152467">vice president</a> or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo of a man in a suit pointing at a table stacked with bound volumes." src="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Richard Nixon, here pointing to transcripts of White House tapes he agreed to turn over to congressional investigators, was an inspiration for the 1978 law that created truly independent counsels. It expired in 1999.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PresidentsLegalTroubles/dbf0e83250c040109016f9bbb50081ea/photo">AP Photo</a></span>
</figcaption>
</figure>
<p>The Ethics in Government Act also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest</a>, or the appearance thereof.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General <a href="https://www.justice.gov/archive/ag/testimony/1999/aggovern031799.htm">Janet Reno</a> <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference</a> in the 2016 elections and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Justice Department – was appointed as special counsel to <a href="https://www.justice.gov/storage/durhamreport.pdf">investigate</a> the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice</a> <a href="https://theconversation.com/states-pick-judges-very-differently-from-us-supreme-court-appointments-160142">of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Justice Department regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, on at least one occasion, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">sought to have Mueller dismissed</a>. When his attorney general, <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Jeff Sessions</a>, <a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">refused to comply</a>, Trump <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">fired</a> him.</p>
<p>Sessions was later <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">replaced</a> by <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who previously served as attorney general under President George H.W. Bush. Prior to his appointment, Barr sent an unsolicited memo to the Justice Department <a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">defending</a> Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.justice.gov/archives/sco/file/1373816/download">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/218b8095-c5e3-4eab-9135-4170f5b3e87f/">summary</a> of its “principal conclusions.” Later, Barr’s summary was criticized for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/">not fully captur[ing] the context, nature, and substance</a>” of Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Justice Department rests, in part, <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">on who occupies</a> the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, Joe Biden has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Justice Department investigations, dating back to his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1690111067576254464"}"></div></p>
<figure><figcaption><span class="caption">Republican Congresswoman Marjorie Taylor Greene has claimed the Biden administration is using the Justice Department unfairly.</span></figcaption></figure>
<p>Garland has served as attorney general for only 2½ years, yet at this point he has appointed more special counsels than <a href="https://www.reuters.com/article/usa-trump-russia-investigations-idINKCN1R01C1">any of</a> <a href="https://www.axios.com/2023/01/13/special-counsel-history-biden-trump-classified">his predecessors</a>.</p>
<p>The first, <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">Jack Smith</a>, is overseeing investigations into former President Donald Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a>, as well as Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a> upon leaving office in 2021. The second, <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-1">Robert Hur</a>, is overseeing President Joe Biden’s handling of classified documents after leaving office as <a href="https://theconversation.com/kamala-harris-has-tied-the-record-for-the-most-tie-breaking-votes-in-senate-history-a-brief-overview-of-what-vice-presidents-do-210444">vice president</a> in 2017. Weiss’ investigation of Hunter Biden is Garland’s third special counsel appointment.</p>
<p>However, despite attempts by Garland to keep sensitive cases an arm’s length away, the reality is that special counsels – by design – are not as independent as the independent counsels of the past. As a result, the perception of <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political prosecution</a> can be hard to avoid.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/special-counsels-like-those-examining-bidens-and-trumps-handling-of-classified-documents-are-intended-to-be-independent-but-they-arent-entirely-197773">article</a> published Jan. 13, 2023, which was an updated version of an <a href="https://theconversation.com/special-counsels-like-the-one-leading-the-department-of-justices-investigation-of-trump-are-intended-to-be-independent-but-they-arent-entirely-195640">article</a> originally published Dec. 14, 2022.</em></p><img src="https://counter.theconversation.com/content/212188/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels can help presidential administrations avoid the perception of bias, but they are not as independent as the independent counsels of the past.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2035402023-07-31T12:24:36Z2023-07-31T12:24:36ZIs Congress on a witch hunt? 5 ways to judge whether oversight hearings are legitimate or politicized<figure><img src="https://images.theconversation.com/files/539558/original/file-20230726-17-7heuat.jpeg?ixlib=rb-1.1.0&rect=17%2C8%2C5973%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Congressional staffers stand beneath a monitor showing House Oversight and Accountability Committee Chair James Comer, R-Ky., in a hearing, July 19, 2023. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressOversightBiden/cf276446a23d486b93b2ba9ca7f67834/photo?Query=congressional%20committee&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=2734&currentItemNo=2">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>Since <a href="https://www.politico.com/news/2022/11/16/house-control-midterm-elections-results-2022-00066546">Republicans regained the majority</a> in the House of Representatives in the 2022 midterm elections, they have initiated a flurry of investigations. Among their targets: <a href="https://www.axios.com/2023/02/17/republicans-overlap-covid-investigations">the origin of the COVID-19 virus</a>, the <a href="https://www.nytimes.com/2023/07/03/us/section-702-spying.html">FBI’s law enforcement and surveillance activities</a> and <a href="https://abcnews.go.com/US/former-hunter-biden-associate-sit-closed-door-testimony/story?id=101618183">Hunter Biden’s business relationships</a>. House Speaker Kevin McCarthy of California even spoke recently of a possible <a href="https://apnews.com/article/biden-impeachment-mccarthy-hannity-78e4c7efeb030b29e1576f868257179b">presidential impeachment inquiry</a>. </p>
<p>Everyone loves congressional oversight – at least in theory. Both <a href="https://www.politico.com/magazine/story/2018/09/04/trump-investigation-house-democrats-congress-219624/">Democrats</a> and <a href="https://thehill.com/blogs/congress-blog/economy-a-budget/72494-how-oversight-should-work-rep-darrell-issa/">Republicans</a> have consistently maintained that holding institutions accountable via rigorous oversight and investigations is among the most important functions of the legislature, the so-called “people’s branch” of government. </p>
<p>In practice, however, Congress’ investigative work is <a href="https://doi.org/10.1146/annurev-polisci-072012-113747">influenced by partisan considerations</a>. Scholars have demonstrated that <a href="https://www.jstor.org/stable/20680245">committees conduct more oversight under divided government</a>, when Congress and the presidency are controlled by opposing parties. One reason for this may be that congressional investigations of the incumbent administration <a href="https://press.princeton.edu/books/hardcover/9780691171852/investigating-the-president">drive down the president’s approval rating</a>. </p>
<p>But if more oversight does not necessarily equate to better oversight, then what does? How do we know when committees are using oversight as a blunt cudgel to damage their political opponents, and when congressional investigations are a valuable and legitimate use of taxpayer dollars? </p>
<p>In other words, how can we separate the “good” oversight from the “bad”?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A balding man in a well-fitted suit stands and raises his right hand to swear an oath." src="https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Secretary of Homeland Security Alejandro Mayorkas is sworn in during a hearing on July 26, 2023, before the House Committee on the Judiciary concerning oversight of Mayorkas’ agency.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/secretary-of-homeland-security-alejandro-mayorkas-is-sworn-news-photo/1572057397?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<h2>Politicized oversight?</h2>
<p>A recent skirmish between the House Judiciary Committee, led by Republican Rep. Jim Jordan of Ohio, and the Manhattan District Attorney’s office is just one illustration of why these questions are so important. </p>
<p>In April 2023, as part of his committee’s probe into allegedly politically motivated prosecutions of former President Donald Trump, Jordan sent a <a href="https://judiciary.house.gov/media/press-releases/chairman-jordan-subpoenas-former-new-york-county-district-attorney-official">subpoena for sworn testimony</a> to lawyer <a href="https://www.simonandschuster.com/books/People-vs-Donald-Trump/Mark-Pomerantz/9781668022443">Mark Pomerantz</a>. Pomerantz had previously worked for Manhattan DA Alvin Bragg, whose team had recently issued 34 felony indictments against Trump for, among other charges, falsification of business records via payments <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">to adult film star Stormy Daniels</a>. </p>
<p>In return, Bragg <a href="https://www.nytimes.com/2023/04/11/nyregion/bragg-lawsuit-jim-jordan-trump-indictment.html">sued Jordan in federal court</a> for what Bragg called <a href="https://int.nyt.com/data/documenttools/bragg-v-jordan-complaint-23-cv-3032/b7f1a0e43619867d/full.pdf">an “unprecedented and unconstitutional attack</a>” by the federal government on an ongoing state-level investigation. </p>
<p>A few days later, on April 19, a federal district judge <a href="https://www.politico.com/news/2023/04/19/trump-prosecutor-pomerantz-subpoena-ruling-00092953">decided against blocking Jordan’s subpoena</a>, arguing that there were “<a href="https://www.nysd.uscourts.gov/sites/default/files/2023-04/Bragg%20v%20Jordan%20-%20Opinion.pdf">several valid legislative purposes</a>” for the committee to require Pomerantz to testify. </p>
<p>Bragg, who initially fought the decision, dropped his appeal after he and Rep. Jordan <a href="https://www.politico.com/news/2023/04/21/bragg-trump-investigator-testify-congress-00093364">reached a compromise</a>, in which Pomerantz agreed to testify before the committee. However, <a href="https://www.nytimes.com/2023/05/12/us/politics/trump-case-pomerantz-deposition.html">Pomerantz ultimately refused to answer</a> many of the committee’s questions.</p>
<p>Historically, courts have tended to respond to disputes between different branches of government with this kind of hands-off approach, preferring to let the parties <a href="https://www.everycrsreport.com/reports/R45653.html">work things out among themselves</a>. But apart from legal questions, the Jordan-Bragg dispute raises fundamental questions about the politicization of oversight.</p>
<h2>‘Legislative purpose’ required</h2>
<p>While Congress’ oversight powers are not unlimited, Congress does have the constitutional authority to investigate <a href="https://theconversation.com/congress-investigates-presidents-the-military-baseball-and-whatever-it-wants-a-brief-modern-history-of-oversight-194995">almost anything it wants</a> in the service of a “<a href="https://www.scotusblog.com/2019/07/cases-and-controversies-congress-the-subpoena-power-and-a-legislative-purpose/">legislative purpose</a>” – though Congress’ demands for information about an ongoing criminal case <a href="https://fivethirtyeight.com/features/what-can-house-republicans-actually-do-to-the-manhattan-da/">are unprecedented</a>. </p>
<p>Jordan and McCarthy have argued that the “<a href="https://twitter.com/SpeakerMcCarthy/status/1641574001934757889">weaponiz[ation] of our sacred system of justice</a>” against a political opponent demands the American people’s immediate attention. Democrats have called the attacks on Bragg a “<a href="https://www.vox.com/politics/2023/4/12/23680531/jim-jordan-alvin-bragg-trump-indictment">political stunt</a>.”</p>
<p>But all of this follows a predictable script. Members on either side of the aisle aren’t in the business of admitting to any distasteful intentions as they sing hosannas to truth and accountability. Thus, political science scholars have proposed <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/waynlr64&div=5&id=&page=">several possible guidelines</a> by which observers might judge the quality of a congressional investigation. </p>
<h2>1. Look to the accountability community</h2>
<p>The accountability community includes legislative agencies like the <a href="https://www.gao.gov/about/what-gao-does">Government Accountability Office</a>, a nonpartisan watchdog that informs Congress about the functioning of executive programs, and the independent <a href="https://www.oversight.gov/">offices of inspectors general</a> that exist within the largest executive branch agencies.</p>
<p><a href="https://theconversation.com/profiles/claire-leavitt-1351188">As a scholar of American oversight</a>, I argue in my ongoing work that one possible way to identify high-quality oversight is by measuring how well Congress responds to programs and agencies that watchdogs have already identified as particularly at risk for waste, fraud and abuse. </p>
<p>In other words, does Congress look to the corners of the government at which highly informed and well-positioned nonpartisan experts have shined their lights? If so, we can infer that Congress is responding to problems for which there is an established, preexisting need for oversight. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits sitting at a table, with one talking and gesturing with his hands." src="https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">On June 6, 2002, FBI Director Robert S. Mueller III, right, and Glenn A. Fine, inspector general for the U.S. Department of Justice, testify at an oversight hearing before the Senate Judiciary Committee.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/director-robert-s-mueller-iii-right-and-glenn-a-fine-news-photo/74801279?adppopup=true">Scott J. Ferrell/CQ-Roll Call, Inc. via Getty Images</a></span>
</figcaption>
</figure>
<h2>2. Look to bipartisan cooperation</h2>
<p>If the goal is to assess how oversight is weaponized politically, the most obvious metric might appear to be: Is an investigation bipartisan? Scholars and citizens could look at whether committee reports are issued jointly by the majority and minority parties, and whether both parties sign off on subpoenas and other information requests. </p>
<p>There are problems with using bipartisanship as a sole metric for quality, however. Members of Congress might purposely refuse to work with their opposition, seeking to discredit an investigation by making it appear partisan when in principle it is not.</p>
<p>Additionally, it matters how partisanship is measured. If one Republican joins 20 Democrats on an investigative request, or vice versa, does that equate to bipartisanship? Do the parties actually work collaboratively, or separately? The lack of a specific definition of “bipartisanship” makes it a difficult standard to apply to assess oversight quality. </p>
<h2>3. Look to information sources</h2>
<p>An important, early part of the oversight process is gathering information about a particular agency or program. Considering the sources of that information is relevant to determining its credibility. For instance, recent scholarship has shown that, under divided government, committees <a href="https://doi.org/10.1017/S0003055422000405">invite a smaller proportion of bureaucrats</a> to testify at hearings. Testimony from civil servants is particularly valuable for administrative oversight, since they are arguably the best positioned to inform Congress about the functioning of the agency programs that they administer.</p>
<p>Thus, a relative dearth of information-sharing between Congress and agency bureaucrats may affect the quality of the information the legislature receives about the government programs they oversee. </p>
<h2>4. Look to effectiveness</h2>
<p>Oversight quality may also be assessed by measuring its effects. Do oversight and investigations actually lead to measurable changes in agency behavior? Research suggests that when Congress chooses to conduct oversight hearings on specific problems in government, those <a href="https://openscholarship.wustl.edu/law_lawreview/vol95/iss5/12/">problems are significantly less likely</a> to recur.</p>
<p>However, these measures tell more about whether an investigation achieved its intended – potentially partisan – goal, and less about whether the investigation itself was rigorous, objective and rooted in facts.</p>
<h2>5. Look to the people</h2>
<p>Finally, oversight quality may simply be in the eye of the beholder. In other words, “good” oversight is whatever Congress – and, by extension, the electorate – says it is. </p>
<p>There is <a href="https://www.jstor.org/stable/2585479">little evidence</a> that voters consciously split their tickets – that is, vote for candidates from different parties on the same ballot. However, in midterm elections, <a href="https://fivethirtyeight.com/features/why-the-presidents-party-almost-always-has-a-bad-midterm/">the president’s party almost always loses seats in Congress</a>, indicating voters’ desire for balance against the incumbent administration. </p>
<p>In the 2022 midterms, the Republican takeover of the House can be largely explained by <a href="https://www.pewresearch.org/politics/2023/07/12/republican-gains-in-2022-midterms-driven-mostly-by-turnout-advantage/">higher turnout among Republican voters</a>. And <a href="https://www.cnn.com/2022/12/17/politics/popular-vote-midterms-what-matters/index.html">Republican candidates received more votes nationally</a> than Democrats. </p>
<p>These results show that citizens who were enthusiastic enough to vote wanted the GOP in charge. Before the midterms, <a href="https://www.cnn.com/2022/11/04/politics/gop-investigations-republican-plans-hunter-biden/index.html">Republicans made no secret of their intentions</a> to investigate Democratic-run institutions, such as the departments of Justice and Homeland Security, and it is fair to say that voters anticipated this agenda. Voters are getting what they were promised. In a democracy, that may be the form of legitimacy that matters most.</p><img src="https://counter.theconversation.com/content/203540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy.</span></em></p>The GOP in the House and Senate is doing lots of investigations; Democrats did the same in the past. A scholar of congressional oversight asks: When are investigations justified?Claire Leavitt, Assistant Professor of Government, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977732023-01-13T13:33:15Z2023-01-13T13:33:15ZSpecial counsels, like those examining Biden’s and Trump’s handling of classified documents, are intended to be independent – but they aren’t entirely<p>Attorney General <a href="https://www.justice.gov/ag/staff-profile/meet-attorney-general">Merrick Garland</a> has now appointed two veteran prosecutors as special counsels to oversee investigations into how President Joe Biden and former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a> handled classified documents after leaving office – <a href="https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents">Biden after he ended his terms as vice president</a> in 2017, and <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Trump after leaving the Oval Office</a> in 2021. </p>
<p><a href="https://www.cnn.com/2023/01/12/politics/who-is-robert-hur-special-counsel/index.html">Robert Hur</a>, a former federal prosecutor in Maryland, will investigate whether Biden or any of his staff or associates mishandled classified information. <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Jack Smith</a>, a longtime top investigator in the Department of Justice, is overseeing <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">two criminal investigations</a> into former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a>.</p>
<p>Garland’s goal, in both cases, is to shield the probes from the appearance of partisanship.</p>
<p>But in <a href="https://truthsocial.com/@realDonaldTrump/posts/109406714029467005">immediate</a> and <a href="https://truthsocial.com/@realDonaldTrump/posts/109418948251497568">repeated</a> attacks, <a href="https://www.youtube.com/watch?v=nuWwzsROQSU">Trump</a>, and some of his <a href="https://truthsocial.com/@RepMTG/posts/109427543912303347">allies</a>, alleged <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political bias</a> anyway. For instance, in one highly charged social media post, the former president argued that he won’t “<a href="https://truthsocial.com/@realDonaldTrump/posts/109423251440782165">get a fair shake</a>” from Smith.</p>
<p>Biden, for his part, has said he is “<a href="https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents#biden-said-he-was-cooperating-fully-and-completely-with-a-justice-department-review">cooperating fully and completely</a>” with the Justice Department’s inquiries.</p>
<p>Fairness and justice, though, are what Garland appointed Smith and Hur to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a> and Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a>, Garland described Smith <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-appointment-special-counsel">as someone who</a> “has built a reputation as an impartial and determined prosecutor.”</p>
<p>When appointing Hur, Garland emphasized his “<a href="https://www.justice.gov/opa/pr/appointment-special-counsel-1">department’s commitment to both independence and accountability</a> in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”</p>
<p>In his own statement, Smith, <a href="https://www.npr.org/2022/11/18/1137847204/who-is-doj-special-counsel-jack-smith">who most recently</a> investigated and prosecuted war crimes at <a href="https://www.icc-cpi.int/about/the-court">the International Criminal Court</a> in <a href="https://www.denhaag.nl/en/in-the-city/introducing-the-hague/a-short-history-of-the-hague.htm">The Hague</a>, <a href="https://www.justice.gov/opa/pr/statement-special-counsel-jack-smith">promised to</a> “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”</p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a> who studies presidential systems, I believe that while special counsels are intended to be independent, in practice they are aren’t entirely. Here’s why.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair and a salt-and-pepper beard, sitting behind a large table or desk." src="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special Counsel Jack Smith, examining Trump’s actions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsKosovoWarCrimes/0b477946e8f641f5b2b7521cafd05cb4/photo?Query=Jack%20Smith%20DeJong&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Peter Dejong, Pool</a></span>
</figcaption>
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<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit stands outside." src="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special Counsel Robert Hur, examining Biden’s actions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BidenClassifiedDocuments/28021b9a199041d2b64cd83a941dd593/photo">AP Photo/Steve Ruark</a></span>
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</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Department of Justice, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate. </p>
<p>The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest</a>, or the appearance thereof.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference in the 2016 elections</a> and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
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<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, at one point, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">wanted to fire Mueller</a>. After his attorney general, <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">Jeff Sessions</a>, who had recused himself from the Russia probe, did not “<a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">end the phony Russia Witch Hunt</a>,” Trump fired him.</p>
<p>Seemingly supportive of this, <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who had served as attorney general under President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/george-w-bush/">George W. Bush</a>, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">Unsurprisingly</a>, Trump then <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">chose</a> Barr to replace <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Sessions</a> as attorney general.</p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.washingtonpost.com/graphics/2019/politics/read-the-mueller-report/?itid=lk_inline_manual_21">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f">summary</a> of its “principal conclusions.” Later, Barr’s summary was criticized for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/">not fully captur[ing] the context, nature, and substance</a>” of Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, <a href="https://www.whitehouse.gov/administration/president-biden/">Biden</a> has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Department of Justice investigations, dating as far back as his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p>Given that <a href="https://www.youtube.com/watch?v=9TeYOZWGu8s">Trump</a> and <a href="https://www.nbcnews.com/politics/joe-biden/biden-cranks-courtship-top-donors-ahead-2024-presidential-election-rcna59029">Biden</a> may end up facing off in <a href="https://www.newyorker.com/news/letter-from-bidens-washington/are-we-doomed-to-see-a-biden-trump-rematch-in-2024">2024</a>, it makes sense that Garland would want to appoint special counsels in order to avoid directly overseeing investigations into his boss and into a political opponent of his boss.</p>
<p>Still, Smith and Hur will not be entirely independent of Garland, just as Garland <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">is not entirely independent</a> of Biden.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/special-counsels-like-the-one-leading-the-department-of-justices-investigation-of-trump-are-intended-to-be-independent-but-they-arent-entirely-195640">article</a> originally published Dec. 14, 2022.</em></p><img src="https://counter.theconversation.com/content/197773/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels can help administrations avoid the perception of bias, but politics is never fully out of the picture.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956402022-12-14T13:14:13Z2022-12-14T13:14:13ZSpecial counsels, like the one leading the Department of Justice’s investigation of Trump, are intended to be independent – but they aren’t entirely<figure><img src="https://images.theconversation.com/files/500554/original/file-20221212-1590-rbisur.jpeg?ixlib=rb-1.1.0&rect=15%2C7%2C5276%2C3498&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Merrick Garland, center, announcing on Nov. 18, 2022, that he will appoint a special counsel for the Department of Justice investigation into former President Donald Trump.
</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-merrick-garland-delivers-remarks-at-the-u-news-photo/1442590814?phrase=Jack%20Smith%20Merrick%20Garland&adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p>When Attorney General <a href="https://www.justice.gov/ag/staff-profile/meet-attorney-general">Merrick Garland</a> appointed veteran prosecutor <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Jack Smith</a> as special counsel to oversee two criminal investigations into former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a> on <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">Nov. 18, 2022</a>, Garland’s goal was to shield the probes from the appearance of partisanship.</p>
<p>But in <a href="https://truthsocial.com/@realDonaldTrump/posts/109406714029467005">immediate</a> and <a href="https://truthsocial.com/@realDonaldTrump/posts/109418948251497568">repeated</a> attacks, <a href="https://www.youtube.com/watch?v=nuWwzsROQSU">Trump</a>, and some of his <a href="https://truthsocial.com/@RepMTG/posts/109427543912303347">allies</a>, alleged <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political bias</a> anyway. For instance, in one highly charged social media post, the former president argued that he won’t “<a href="https://truthsocial.com/@realDonaldTrump/posts/109423251440782165">get a fair shake from</a>” Smith.</p>
<p>Fairness and justice, though, are what Garland appointed Smith to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a> and Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a>, Garland described Smith <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-appointment-special-counsel">as someone who</a> “has built a reputation as an impartial and determined prosecutor.”</p>
<p>In his own statement, Smith, <a href="https://www.npr.org/2022/11/18/1137847204/who-is-doj-special-counsel-jack-smith">who most recently</a> investigated and prosecuted war crimes at <a href="https://www.icc-cpi.int/about/the-court">the International Criminal Court</a> in <a href="https://www.denhaag.nl/en/in-the-city/introducing-the-hague/a-short-history-of-the-hague.htm">The Hague</a>, <a href="https://www.justice.gov/opa/pr/statement-special-counsel-jack-smith">promised to</a> “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”</p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a> who studies presidential systems, I believe that while special counsels are intended to be independent – in practice, they are aren’t entirely. Here’s why.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair and a salt-and-pepper beard, sitting behind a large table or desk." src="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Newly appointed Special Counsel Jack Smith, when he was prosecutor at the Kosovo Specialist Chambers court in The Hague, Nov. 10, 2020.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsKosovoWarCrimes/0b477946e8f641f5b2b7521cafd05cb4/photo?Query=Jack%20Smith%20DeJong&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Peter Dejong, Pool</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Department of Justice, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, which would investigate. </p>
<p>The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest, or the appearance thereof</a>.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference in the 2016 elections</a> and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1597377821353332736"}"></div></p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, at one point, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">wanted to fire Mueller</a>. After his attorney general, <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">Jeff Sessions</a>, who had recused himself from the Russia probe, did not “<a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">end the phony Russia Witch Hunt</a>,” Trump fired him.</p>
<p>Seemingly supportive of this, <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who had served as attorney general under President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/george-w-bush/">George W. Bush</a>, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">Unsurprisingly</a>, Trump then <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">chose</a> Barr to replace <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Sessions</a> as attorney general.</p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.washingtonpost.com/graphics/2019/politics/read-the-mueller-report/?itid=lk_inline_manual_21">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f&utm_term=.83d1434abd9d">summary</a> of its “principal conclusions.” Later, Barr’s summary was <a href="https://yarmuth.house.gov/press/yarmuth-statement-ag-barrs-summary-principal-conclusions-mueller-report">criticized</a> for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/?itid=lk_inline_manual_2">not fully captur[ing] the context, nature, and substance of</a>” Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, President <a href="https://www.whitehouse.gov/administration/president-biden/">Joe Biden</a> has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Department of Justice investigations, dating as far back as his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p>Given that <a href="https://www.youtube.com/watch?v=9TeYOZWGu8s">Trump</a> and <a href="https://www.nbcnews.com/politics/joe-biden/biden-cranks-courtship-top-donors-ahead-2024-presidential-election-rcna59029">Biden</a> may end up facing off in <a href="https://www.newyorker.com/news/letter-from-bidens-washington/are-we-doomed-to-see-a-biden-trump-rematch-in-2024">2024</a>, it makes sense that Garland would want to appoint a special counsel in order to avoid directly overseeing any investigations into a political opponent of the president under whom he serves. </p>
<p>Still, Smith will not be entirely independent of Garland, just as Garland <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">is not entirely independent</a> of Biden.</p><img src="https://counter.theconversation.com/content/195640/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels are not entirely independent, but they do still help administrations avoid the perception of bias.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1878162022-07-27T18:31:12Z2022-07-27T18:31:12ZHow do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020 election<figure><img src="https://images.theconversation.com/files/476340/original/file-20220727-25-kj5r0k.jpeg?ixlib=rb-1.1.0&rect=15%2C30%2C5116%2C3647&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Marc Short, former Vice President Mike Pence's chief of staff, testified in late July before a federal grand jury investigating the Jan. 6, 2021, assault on the U.S. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotPenceAide/aa1d4f3823a14054abbd910df622ebd9/photo?Query=grand%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5118&currentItemNo=0">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>Grand juries play a major role in the U.S. criminal justice system. And they’re very much in the news these days.</p>
<p><a href="https://abcnews.go.com/US/georgia-governor-testimony-fulton-county-election-probe-report/story?id=87425868">A grand jury in Fulton County, Georgia</a>, is looking into former President Donald Trump’s efforts to overturn the 2020 presidential election results in that state. Among the latest witnesses to give testimony to the grand jury was Georgia Gov. Brian Kemp.</p>
<p>In Washington, D.C., the U.S. Justice Department is in the middle of an <a href="https://www.washingtonpost.com/national-security/2022/07/26/trump-justice-investigation-january-6/">investigation into efforts to overturn the 2020 election</a>, and it is questioning witnesses before a grand jury as well. Most recently, <a href="https://www.wsj.com/articles/justice-department-questions-top-pence-aides-over-trump-bid-to-overturn-election-11658783628">two top aides to former Vice President Mike Pence were questioned</a> in that probe. </p>
<p>A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into <a href="http://www.judicialwatch.org/press-room/press-releases/judicial-watch-fbi-court-filing-reveals-grand-jury-targeted-hillary-clinton/">Hillary Clinton’s email server</a>, for example, but no one was charged with any crimes. </p>
<p>In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.</p>
<h2>Legal basis: Federal and state</h2>
<p>The <a href="http://constitution.findlaw.com/amendment5.html">Fifth Amendment to the U.S. Constitution</a> provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment. </p>
<p>In addition to considering whether individuals may have committed a crime, <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury">a grand jury can also be used by a prosecutor as an investigative tool</a> to compel witnesses to testify or turn over documents. <a href="https://www.washingtonpost.com/politics/special-counsel-mueller-using-grand-jury-in-federal-court-in-washington-as-part-of-russia-investigation/2017/08/03/1585da56-7887-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.0041dedbde14">Reports</a> indicate that Special Counsel Robert Mueller used a grand jury for the latter when he investigated whether there was collusion between former President Donald Trump’s election campaign and Russia to influence the 2016 election.</p>
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<a href="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bearded man in judge's robes sitting at a large desk, with the state seal of Georgia on the wall behind him." src="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fulton County Superior Court Judge Robert McBurney instructs potential jurors during proceedings to seat a special purpose grand jury in Fulton County, Georgia, May 2, 2022, to look into attempts to overturn the results of the 2020 election.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigation/bd5b51f1f655406fa6b62ebfd189e0e9/photo?Query=grand%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5118&currentItemNo=7">AP Photo/Ben Gray</a></span>
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<h2>Makeup of a grand jury</h2>
<p>Grand jurors are usually chosen from the same jury pool as trial jurors. For a <a href="https://www.flmd.uscourts.gov/sites/flmd/files/documents/handbook-for-federal-grand-jurors.pdf">federal grand jury</a>, all U.S. citizens over the age of 18 living in the federal district court’s geographic jurisdiction are in the pool. </p>
<p>Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.</p>
<p>Next, prospective grand jurors are screened, usually through questionnaires. </p>
<p>To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.</p>
<h2>Work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed in order for a case to move forward to a trial or a plea. “Probable cause” means that there must be some evidence of each element of the offense. </p>
<p>In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a <a href="https://ago.mo.gov/docs/default-source/publications/courtprocess.pdf?sfvrsn=4">grand jury or at a preliminary hearing</a> before a judge. </p>
<p>When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson in 2014, the St. Louis County prosecuting attorney brought the <a href="https://theconversation.com/explainer-the-grand-jury-in-the-darren-wilson-case-and-beyond-34857">evidence to a grand jury</a> rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.</p>
<p>Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.</p>
<p>In some cases, like Mueller’s Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses. </p>
<p>Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.</p>
<p><a href="https://fas.org/sgp/crs/secrecy/R45456.pdf">The work of a grand jury is required by law to be done in secret</a>, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified. </p>
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<a href="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=487&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=487&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=487&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=612&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=612&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=612&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Clinton in videotaped grand jury testimony Aug. 17, 1998.</span>
<span class="attribution"><span class="source">AP Photo/APTV</span></span>
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<p>In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when former President Bill Clinton testified before a grand jury during the investigation into Whitewater real estate investment and the affair with Monica Lewinsky, <a href="http://www.history.com/this-day-in-history/clinton-testifies-before-grand-jury">he went on national television</a> and announced that he had testified.</p>
<h2>Potential dangers</h2>
<p>The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present, and cannot question the evidence early in the criminal justice process. </p>
<p>As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, <a href="http://www.nytimes.com/1985/02/18/opinion/do-we-need-grand-juries.html">famously said</a> that a prosecutor could get a grand jury “to indict a ham sandwich.” </p>
<p>These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But in high-profile cases, like the Russia connection to the Trump presidency and possibly the current investigation into Trump’s efforts to overturn the election results in Georgia, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/the-grand-jurys-role-in-american-criminal-justice-explained-82197">a story originally published</a> on Aug. 7, 2017.</em></p><img src="https://counter.theconversation.com/content/187816/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Grand juries are meeting in Georgia and Washington, D.C., as part of investigations into attempts to overturn the 2020 presidential election. How do they work?Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1207812019-07-26T04:18:59Z2019-07-26T04:18:59ZMueller testimony does not produce smoking gun, but the issues it raised are far from resolved<figure><img src="https://images.theconversation.com/files/285779/original/file-20190726-136764-78m8ok.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Democrats are frustrated that Robert Mueller did not make a clear-cut case for impeaching President Donald Trump.</span> <span class="attribution"><span class="source">AAP/EPA/Jim Lo Scalzo</span></span></figcaption></figure><p>According to much of the <a href="https://www.theweek.co.uk/102436/why-robert-mueller-s-testimony-was-so-disappointing">early commentary</a>, Robert Mueller’s testimony on Wednesday before two US congressional committees was a disappointment.</p>
<p>Democrats are frustrated the special counsel did not make a clear-cut case for impeaching President Donald Trump. Mueller answered questions in the most minimalist way possible, often suggesting congresspersons simply read <a href="https://edition.cnn.com/2019/04/18/politics/full-mueller-report-pdf/index.html">his report</a> on the investigation into Russian interference in the 2016 presidential election.</p>
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<p>Democrats wanted Mueller to testify in the hope the American public would start paying more attention to his findings on how Trump obstructed justice.</p>
<p>It turned out that Mueller’s testimony was more sophistic than animating. But it did again highlight damning things about the president’s behaviour.</p>
<p>During the hearing, Republicans unimaginatively echoed Trump’s claims of a “witch-hunt” and asserted that the Mueller report turned up no evidence of collusion with Russia during the 2016 election or of obstruction of justice.</p>
<p>Like Attorney-General Bob Barr’s <a href="https://www.bloomberg.com/opinion/articles/2019-07-24/mueller-testimony-how-bill-barr-outplayed-bob-mueller">disingenuous summary</a> of the Mueller report, these claims by Republicans this week were not true, but they have created a narrative that Trump is innocent. This claim is given ballast by Republicans’ allegations that FBI agents conducting the Mueller investigations were <a href="https://www.latimes.com/politics/story/2019-07-24/guide-to-gop-attacks-against-the-credibility-mueller-probe">politically biased</a> because some of them had said negative things about Trump in private correspondence or donated money to the Clinton campaign.</p>
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Read more:
<a href="https://theconversation.com/us-house-of-representatives-condemns-racist-tweets-in-another-heady-week-under-president-donald-trump-120425">US House of Representatives condemns racist tweets in another heady week under President Donald Trump</a>
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<p>If saying highly negative things about Trump behind closed doors disqualified bureaucrats and politicians from doing their job, Washington DC would grind to a halt. However, in public Republicans are sticking with Trump, doing his bidding in the Congress and tying their fortunes to him at least for the foreseeable future.</p>
<p>Democrats may initiate impeachment proceedings in the House of Representatives, but the trial ultimately occurs in the Senate, where the Republicans have a 53-47 majority. As a result of these numbers and the need for a two-thirds majority vote to dismiss a president, removing Trump from office via impeachment proceedings is very unlikely. </p>
<p>Republicans are showing no signs of abandoning Trump. It is worth remembering that no president has ever been removed from office by the Senate, although two – <a href="https://time.com/5552679/impeached-presidents/">Bill Clinton and Andrew Johnson</a> – have been impeached by the House of Representatives.</p>
<p>Given these political rather than legal realities, will Democrats continue to push for Trump’s unlikely impeachment? The answer is yes. Although Democratic house leaders led by Nancy Pelosi, the speaker of the house, are urging caution, the fresh wave of Democratic congresspersons elected in 2018 who rode a strong wave of anti-Trump sentiment in their congressional districts will continue to push hard for impeachment.</p>
<p>However, this divide can be overstated. As <a href="https://www.cnsnews.com/news/article/susan-jones/pelosi-stronger-our-impeachment-case-worse-senate-will-look">Pelosi’s comments</a> following Mueller’s testimony demonstrate, the fact that Republicans control the Senate and are unlikely to convict the president may not factor into future considerations among the house leadership. Pelosi wants a strong case, not an act of political theatre. As she put it:</p>
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<p>The stronger our case is, the worse the Senate will look for just letting the president off the hook.</p>
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<p>Pelosi knows that the case against Trump continues to build. Democrats are <a href="https://www.huffingtonpost.com.au/entry/trump-tax-returns-democrats-sue-court_n_5ce82d8fe4b0a839e8605b0c">pursuing the president</a> in federal courts for a number of alleged financial improprieties, and the House Judiciary Committee is preparing to <a href="https://www.wsj.com/articles/house-judiciary-panel-prepares-lawsuit-to-enforce-subpoena-of-don-mcgahn-11564001645">enforce a subpoena</a> against Don McGahn – the former White House Counsel allegedly directed by Trump to fire Mueller during his investigation.</p>
<p>In his testimony on Wednesday, Mueller confirmed that Trump pressured McGahn in yet another attempt to obstruct justice. Those who have read the Mueller report would know that there were many such attempts. These include <a href="https://www.apnews.com/d47a5be3e46442d0a1243c7dc52278f3">Michael Flynn’s lies</a> to the FBI about his conversations with Russians during the transition, the pressuring and eventual firing of <a href="https://www.apnews.com/4ff1ecb621884a728b25e62661257ef0">FBI director James Comey</a>, and the <a href="https://www.bbc.com/news/world-us-canada-42493918">attempted cover-up</a> of Don junior’s meeting with a Russian lawyer at Trump Tower in June 2016 to get whatever dirt he could on Hillary Clinton.</p>
<p>The challenge for Democrats, if they go ahead with impeachment in the House of Representatives, is to articulate a clear case about why such drastic action is justified.</p>
<p>In legal terms, the case that Trump obstructed justice is strong, whereas the case for collusion with Russia is weaker.</p>
<p>It is easy to impute guilt by association with Trump and the Russians. First, there are <a href="https://www.abc.net.au/4corners/trumprussia:-follow-the-money/9840958">Trump’s business dealings with Trump Soho and the push to have a Trump Moscow hotel</a>. Then there is <a href="https://www.theatlantic.com/magazine/archive/2018/03/paul-manafort-american-hustler/550925/">Paul Manafort’s close associations with Viktor Yanukovych</a>. Finally, there is Steve Bannon’s appreciation of Putin’s support for ultra right-wing populists across Europe.</p>
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<p>However, the Mueller report and his testimony produced no smoking gun. Mueller rightly warned that the Russians have an ongoing campaign to undermine the faith of Americans in democracy. Given the existing levels of frustration and apathy about politics in America, Mueller’s alarm on this issue should be taken seriously. This was one of the few issues that the reluctant witness Mueller became more animated and forceful about.</p>
<p>Many of us are following the vast cast of characters central to the Trump era, the complex details of the Mueller report and Trump’s financial dealings, as well as the congressional hearings into Trump’s behaviour in office.</p>
<p>However, there is a simpler reality to keep in sight. That is that during the Trump presidency, the <a href="https://www.newyorker.com/news/our-columnists/why-the-mueller-hearings-were-so-alarming">truth has been more politicised than ever</a>. Increasingly, the truth is presented as a lie and a lie as the truth.</p><img src="https://counter.theconversation.com/content/120781/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While some have seen Mueller’s testimony as a disappointment, Democrats may still initiate impeachment proceedings against Donald Trump in the House of Representatives.Brendon O'Connor, Associate Professor in American Politics at the United States Studies Centre, University of SydneyDaniel Cooper, Lecturer, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209552019-07-25T01:06:32Z2019-07-25T01:06:32ZThe Mueller hearing and the death of facts<p>Listening to former <a href="https://www.washingtonpost.com/national-security/mueller-testimony-congress-live/2019/07/24/d51a82d6-aca1-11e9-bc5c-e73b603e7f38_story.html">special counsel Robert Mueller’s testimony</a> on July 24, the nation heard a duel over the facts. </p>
<p>Not what the facts imply, not our response to them, but what the facts are. </p>
<p>Founding Father John Adams once said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” </p>
<p>But this is no longer Adams’ America, where facts were unalterable.</p>
<p>As a <a href="https://www.leemcintyrebooks.com/lee.php">scholar of philosophy</a> and what I call the <a href="https://www.leemcintyrebooks.com/post-truth.php">“post-truth” era</a>, I believe <a href="https://www.washingtonpost.com/national-security/mueller-testimony-congress-live/2019/07/24/d51a82d6-aca1-11e9-bc5c-e73b603e7f38_story.html">Mueller’s testimony shows</a> that at least in the political world, “alternative facts” have replaced actual facts and feelings have more weight than evidence.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/285641/original/file-20190724-110175-723di7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rep. Jamie Raskin, a Maryland Democrat, questions Mueller.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe/0dacee9a68b64214b2916a3d49efc013/24/0">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Competing dreams</h2>
<p>It has been established that <a href="https://www.usatoday.com/story/news/politics/onpolitics/2016/10/21/17-intelligence-agencies-russia-behind-hacking/92514592/">the Russians hacked the 2016 presidential election</a>. That is one of the few generally accepted facts to emerge from the Mueller investigation.</p>
<p>But did President Trump invite or otherwise cooperate with this interference? And, once an investigation into these questions was taken up by <a href="https://www.justice.gov/sco">Mueller’s Office of Special Counsel</a>, did the president attempt to interfere with it? </p>
<p><a href="https://www.nbcnews.com/politics/congress/democrats-want-mueller-tell-swing-voters-what-trump-did-wrong-n1032501">The dream for Democrats</a> was that, upon hearing the facts directly from Mueller, the American people might finally begin to pay attention and realize that there was incontrovertible evidence that Trump at least obstructed justice in his <a href="https://www.cbsnews.com/news/obstruction-of-justice-10-times-trump-may-have-obstructed-justice-mueller-report/">repeated efforts to derail</a> and <a href="https://www.factcheck.org/2019/04/debunking-muellers-conflicts/">discredit the special counsel’s investigation</a>. </p>
<p>Even if Mueller did not introduce any new information beyond the confines of his report – <a href="https://www.realclearpolitics.com/video/2019/07/24/mueller_opening_statement_testimony_limited_to_report_will_not_discuss_steele_dossier_or_fbi_probe.html">which he did not</a> – <a href="https://www.nytimes.com/2019/07/20/us/politics/mueller-hearings-democrats.html">the hope was</a> that simply by seeing and hearing his report come to life, Americans could finally agree that even if there was insufficient evidence to conclude that Trump conspired with the Russians, the country could at least understand that he threatened, lied, enticed and otherwise interfered with the investigation. It would be like seeing the movie rather than reading the book.</p>
<p>The dream for Republicans was to <a href="https://www.apnews.com/b88a2a9bc3d745439d3f088d2ba783b7">introduce a new set of facts</a>, which <a href="https://www.youtube.com/watch?v=luuRh6UwAV0">they offered</a> with <a href="https://www.washingtonpost.com/outlook/2019/07/24/gops-questions-mueller-seemed-bizarre-unless-you-watch-fox-news/?utm_term=.4e89087969b1">largely no evidence</a>, seeking to question the integrity of the investigation from the start. They pursued this line relentlessly.</p>
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<img alt="" src="https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=324&fit=crop&dpr=1 600w, https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=324&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=324&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=408&fit=crop&dpr=1 754w, https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=408&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/285642/original/file-20190724-110154-dyqt9c.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=408&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Trump spoke to reporters after Mueller’s testimony.</span>
<span class="attribution"><a class="source" href="https://www.youtube.com/watch?v=q2pSVWOXId4">CBS News</a></span>
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</figure>
<h2>Competing takes</h2>
<p>The problem with facts these days is not that they do not exist. It’s that with a steady stream of propaganda fed to the electorate on a daily basis, the facts are <a href="https://theconversation.com/from-total-exoneration-to-impeach-now-the-mueller-report-and-dueling-fact-perceptions-116488">beholden to your political point of view</a>. </p>
<p>At the break in the Mueller hearings, here were the top three headlines from Fox News:</p>
<p><a href="https://www.foxnews.com/politics/mueller-flustered-asking-lawmakers-to-repeat-questions-at-hearing">“Mueller flustered, asking lawmakers to repeat questions at tense hearing”</a></p>
<p><a href="https://www.foxnews.com/politics/mueller-friends-with-comey-during-heated-house-hearing">“Mueller admits he was friends with Comey during heated House hearing”</a></p>
<p><a href="https://www.foxbusiness.com/politics/heres-how-much-the-mueller-investigation-cost-taxpayers">“Here’s how much the Mueller investigation cost taxpayers”</a></p>
<p>Over at MSNBC, there was an alternate universe:</p>
<p><a href="https://www.msnbc.com/msnbc/watch/mueller-testifies-under-oath-that-his-report-does-not-exonerate-president-trump-64432709750">“Mueller testifies under oath that his report does not exonerate Trump”</a></p>
<p><a href="https://www.msnbc.com/msnbc/watch/mueller-president-trump-could-be-criminally-charged-with-obstruction-of-justice-after-he-leaves-office-64441413571">“Mueller: A president could be criminally charged after leaving office”</a></p>
<p><a href="https://www.msnbc.com/msnbc/watch/mueller-confirms-trump-asked-staff-to-falsify-records-to-protect-himself-related-to-investigation-64438853740">“Mueller confirms Trump asked staff to falsify records to protect himself”</a></p>
<p>The problem is not that any of these headlines are technically false. It’s that cherry picking what “facts” get reported creates a skewed perception of reality.</p>
<p>In May, Rep. Justin Amash, a Republican (who <a href="https://thehill.com/homenews/house/452261-amash-officially-files-as-independent">became an Independent</a> in July), <a href="https://www.freep.com/story/news/local/michigan/2019/05/28/justin-amash-donald-trump-impeachment-town-hall/1260471001/">held a series of town halls</a> on why he favored Trump’s impeachment. Several media outlets <a href="https://www.theatlantic.com/politics/archive/2019/07/mueller-testimony-barr-narrative/594547/">reported</a> one of the attendees didn’t even know what all the fuss was about. </p>
<p>“I was surprised to hear there was anything negative in the Mueller report at all about President Trump,” <a href="https://www.theatlantic.com/politics/archive/2019/07/mueller-testimony-barr-narrative/594547/">Cathy Garnaat said</a>. “I hadn’t heard that before. I’ve mainly listened to conservative news and I hadn’t heard anything negative about that report, and President Trump has been exonerated.” </p>
<p>With polls showing that fewer than 10% of Americans have read any part of Robert Mueller’s report, it’s possible that many rely on news coverage to tell them what it said. Indeed, when the report was released back in April, a poll showed that only “<a href="https://www.nbcnews.com/politics/congress/democrats-want-mueller-tell-swing-voters-what-trump-did-wrong-n1032501">46% of Americans had heard something about the Mueller Report</a>.”</p>
<p>Democrats appear to be nursing the hope that once something happens, people will wake up and care about the facts again. Once the report is released … once people read the report … once Mueller testifies … facts will matter again. </p>
<h2>The death of facts</h2>
<p>But to watch <a href="https://abcnews.go.com/Politics/republicans-democrats-spin-mueller-testimony-candidates-call-impeachment/story?id=64535060">the spin by both Republicans and Democrats</a> about the hearing – “Republicans and Democrats filtered Robert Mueller’s Capitol Hill testimony through their own prisms Wednesday,” wrote ABC News – one wonders if this is a false hope.</p>
<p>At this point, does it really matter? </p>
<p>Even if the Mueller report had been definitive, some have speculated that <a href="https://theconversation.com/from-total-exoneration-to-impeach-now-the-mueller-report-and-dueling-fact-perceptions-116488">half the country would have rejected it anyway</a>. </p>
<p>Perhaps, in order to promote an agenda, you need not offer “alternative facts,” but simply discredit the other side’s fact finders. Or, <a href="https://www.cnbc.com/2018/05/22/trump-told-lesley-stahl-he-bashes-press-to-discredit-negative-stories.html">as Trump once put it</a> – in response to a question about why he attacks the media so much, “I do it to discredit you all and demean you all so that when you write negative stories about me, no one will believe you.”</p>
<p>Shortly after Mueller concluded his testimony, Trump stepped out onto the South Lawn to talk to reporters.</p>
<p>Once again, he called the Russia investigation a “ridiculous hoax” and a “witch hunt” – after Robert Mueller had explicitly told lawmakers that the Russia investigation was neither a witch hunt nor a hoax. In a final tweet, before departing for a fundraiser in West Virginia, Trump tweeted <a href="https://www.pbs.org/newshour/politics/trump-on-mueller-testimony-there-was-no-defense-to-this-ridiculous-hoax">“TRUTH IS A FORCE OF NATURE.”</a> </p>
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<header>Lee McIntyre is the author of:</header>
<p><a href="https://mitpress.mit.edu/books/post-truth">Post-Truth</a></p>
<footer>MIT Press provides funding as a member of The Conversation US.</footer>
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</section>
</p><img src="https://counter.theconversation.com/content/120955/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee McIntyre is a registered Democrat. MIT Press provides funding as a member of The Conversation US.</span></em></p>To one scholar of the post-truth era, tuning in to Robert Mueller’s testimony Wednesday was to hear a duel over the facts. Not what the facts imply – but what the facts are.Lee McIntyre, Research Fellow Center for Philosophy and History of Science, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1204252019-07-17T01:33:16Z2019-07-17T01:33:16ZUS House of Representatives condemns racist tweets in another heady week under President Donald Trump<p>The past three days in US politics have been very difficult – and ugly. </p>
<p>President Donald Trump chose to exploit divisions inside the Democratic Party in the House of Representatives – generational and ideological – by <a href="https://www.bbc.com/news/world-us-canada-48982172">attacking four new women members</a> of Congress, denying their status as Americans and their legitimacy to serve in Congress. They are women of colour and, yes, they are from the far left of the Democratic Party. They have pushed hard against their leaders.</p>
<p>But Trump’s vicious, racist attacks on them have in fact solved the unity problem among the Democrats: they are today (re)united against Trump.</p>
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Read more:
<a href="https://theconversation.com/two-dozen-candidates-one-big-target-in-a-crowded-democratic-field-who-can-beat-trump-119295">Two dozen candidates, one big target: in a crowded Democratic field, who can beat Trump?</a>
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<p>You can draw a straight line from <a href="https://www.washingtonpost.com/politics/2019/04/03/another-trump-birther-conspiracy-debunked-with-birth-certificate-this-time-his-father/?utm_term=.6b6cca100db4">Trump’s birther attacks</a> on Obama, to his “<a href="https://www.theguardian.com/us-news/2018/apr/05/trump-mexico-caravan-voter-claims-speech-west-virginia">Mexican rapists</a>” attack when he announced his run for the presidency, to his <a href="https://www.theguardian.com/us-news/2018/jun/26/trump-travel-ban-supreme-court-ruling-explained">Muslim immigration ban</a>, to <a href="https://www.theguardian.com/us-news/2017/aug/15/donald-trump-press-conference-far-right-defends-charlottesville">equivocating over</a> Nazis marching in Charlottesville, to <a href="https://www.bbc.com/news/av/world-us-canada-43648973/it-s-time-to-act-trump-orders-troops-to-us-mexico-border">sending troops</a> to the US-Mexico border, to <a href="https://www.abc.net.au/news/2019-01-26/donald-trump-announces-deal-to-end-shutdown-temporarily/10752818">shutting down the government</a>, to <a href="https://www.abc.net.au/news/2019-02-16/donald-trump-signs-national-emergency-over-mexican-border-wall/10818528">declaring a national emergency</a>, to what he is doing today.</p>
<p>And his attacks on these lawmakers is based on a lie: three of the congresswomen were born in America. One is an immigrant, now a citizen, and as American as any citizen – just like Trump’s wife.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1150381394234941448"}"></div></p>
<p>I worked in the House of Representatives for ten years. I learned early that you do not impugn – you have no right to impugn – the legitimacy of an elected member of Congress. Only the voters can do that.</p>
<p>Other presidents have been racist. Lyndon Johnson worked with the southern segregationists. Nixon <a href="https://www.washingtonpost.com/wp-srv/politics/daily/oct99/nixon6.htm">railed in private</a> against Jews. But none have spoken so openly, so publicly, without shame or remorse for these sentiments. So this is new territory.</p>
<p>And this is unlike Charlottesville, where there was vocal and visible pushback from Republicans on Trump giving an amber light to the Nazis in the streets. This is how much the political culture and norms have corroded over the past two years.</p>
<p>The Democrats chose to fight back by bringing a resolution condemning Trump for his remarks to the House of Representatives floor. Historians are still scurrying, but it appears this is unprecedented – the house has never in its history, which dates to the 1790s, voted to condemn a president’s remarks. (The Senate censured President Andrew Jackson over banking issues in 1834.)</p>
<p>The house <a href="https://www.nytimes.com/2019/07/16/us/politics/trump-tweet-house-vote.html?action=click&module=Top%20Stories&pgtype=Homepage">passed the measure</a> almost along party lines, with only four Republicans out of 197 – just 2% – voting for the resolution.</p>
<p>The concluding words in <a href="https://www.npr.org/2019/07/16/742156445/read-heres-the-resolution-condemning-trump-s-racist-comments-about-congresswomen">the resolution</a> are these:</p>
<blockquote>
<p>Whereas President Donald Trump’s racist comments have legitimised fear and hatred of new Americans and people of color: Now, therefore, be it resolved, That the House of Representatives […] condemns President Donald Trump’s racist comments that have legitimised and increased fear and hatred of new Americans and people of colour by saying that our fellow Americans who are immigrants, and those who may look to the President like immigrants, should “go back” to other countries, by referring to immigrants and asylum seekers as “invaders”, and by saying that Members of Congress who are immigrants (or those of our colleagues who are wrongly assumed to be immigrants) do not belong in Congress or in the United States of America.</p>
</blockquote>
<p>So Trump is secure within his party – and he believes he has nothing to fear from the testimony of the special counsel, Robert Mueller, next week before the House Judiciary and Intelligence Committees.</p>
<p>Much attention will be paid to the examination of obstruction-of-justice issues when Mueller testifies. But the more meaningful discussion will occur in the assessment by the intelligence committee examining Russian interference in the 2016 election, and the persistence of a Russian threat in 2020.</p>
<p>Mueller ended his <a href="https://www.abc.net.au/news/2019-05-30/robert-muellers-media-conference-in-full/11163140">Garbo-like appearance</a> before the media in May with these words: </p>
<blockquote>
<p>The central allegation of our indictments [is] that there were multiple, systematic efforts to interference in our election. That allegation deserves the attention of every American.</p>
</blockquote>
<p>The US presidential election remains vulnerable and it is not clear that sufficient safeguards are being put in place to protect the country’s democracy.</p>
<p>But it is the unresolved drama over impeachment that will colour Mueller’s <a href="https://www.msnbc.com/rachel-maddow/watch/mueller-testimony-moved-to-july-24-with-other-details-in-flux-63771205829">appearance on Wednesday</a>.</p>
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<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-a-special-counsel-and-what-will-he-investigate-in-the-trump-administration-77952">Explainer: what is a special counsel and what will he investigate in the Trump administration?</a>
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<p>Mueller concluded he could not indict a sitting president. However, he forensically <a href="https://www.apnews.com/e0d125d737be4a21a81bec3d9f1dffd8">detailed ten instances</a> of possible obstruction of justice. Mueller said that if he believed Trump had not committed a crime he would have said so and that, as a result, he could not “exonerate” Trump.</p>
<p>The key question that will be asked of Mueller is: “If the record you developed on obstruction of justice was applied to any individual who was not president of the United States, would you have sought an indictment?”</p>
<p>And on the answer to that question turns the issue of whether there will be critical mass among House of Representatives Democrats, and perhaps supported by the American people, to vote for a bill of impeachment against Donald J. Trump.</p><img src="https://counter.theconversation.com/content/120425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Wolpe is affiliated with the United States Studies Centre at the University of Sydney and is a contributor on American politics to Sky News Australia. </span></em></p>With the House of Representatives taking the unusual approach of censuring a sitting president, attention will now turn to next week’s testimony by Robert Mueller.Bruce Wolpe, Non-resident senior fellow, United States Study Centre, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1181012019-06-03T17:10:37Z2019-06-03T17:10:37ZIs Robert Mueller an antique? The role of the facts in a post-truth era<p>In just a little over eight minutes – on the morning of Wednesday, May 29th – the post-truth era came to an end.</p>
<p>Or did it?</p>
<p>That’s when <a href="https://www.nytimes.com/2019/05/29/us/politics/mueller-special-counsel.html">Special Counsel Robert Mueller took the podium</a> and addressed only the facts concerning his <a href="https://www.washingtonpost.com/world/national-security/mueller-report-sent-to-attorney-general-signaling-his-russia-investigation-has-ended/2019/03/22/b061d8fa-323e-11e9-813a-0ab2f17e305b_story.html">two-year-long investigation into Russian interference</a> in the 2016 presidential election as well as possible collusion and obstruction of justice.</p>
<p>Some might feel that Mueller struck a blow for truth and reality in a world where we are daily surrounded by opinion, spin and commentary. He seemed determined to follow the old rules no matter the madness that surrounded him. </p>
<p>Others, however, might feel that Mueller presented himself more as an antique specimen, and not a particularly useful one at that. How? By refusing to accept the reality that he was giving his address in a world where he knew his statement would be spun, lied about and exploited by others. </p>
<p>What is the role of someone who speaks only of facts in a tornado of partisan bombast? Is it a breath of fresh air? Or an abdication of responsibility to protect the country’s interests?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/277689/original/file-20190603-69059-jlgq3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It used to be that lies had the power to shock. Now, facts are the outliers.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTU1OTYwMzk2MCwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfMzI2MjQ3NzQ5IiwiayI6InBob3RvLzMyNjI0Nzc0OS9odWdlLmpwZyIsIm0iOjEsImQiOiJzaHV0dGVyc3RvY2stbWVkaWEifSwiQTI0NUM3Q3Rlak5RQ08zczFBR1hleFVBRVFVIl0%2Fshutterstock_326247749.jpg&pi=33421636&m=326247749&src=NNmmW-XRFNEiUm4k74aWag-1-5">Shutterstock</a></span>
</figcaption>
</figure>
<h2>Facts vs post-truth</h2>
<p><a href="http://www.leemcintyrebooks.com/lee.php">I’m a philosopher</a> who studies the rational foundation for belief. In my book, “<a href="https://mitpress.mit.edu/books/post-truth">Post-Truth</a>” (MIT Press, 2018), I explore the idea that “post-truth” actually goes far beyond the Oxford dictionaries’ definition of it as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” </p>
<p>Instead, I offer the idea that post-truth is more usefully understood as the “political subordination of reality,” in which truth is the first casualty on the road to authoritarianism.</p>
<p>If that is right, what are we to think of Mueller’s fact-based statement?</p>
<p>At the start, <a href="https://www.nytimes.com/2019/05/29/us/politics/mueller-transcript.html">Mueller outlined the parameters and limitations of his investigation.</a> Given <a href="https://fas.org/irp/agency/doj/olc/092473.pdf">Justice Department guidelines</a>, he said, he could not charge a sitting president with a crime (left unsaid: even if he felt that he had committed one). </p>
<p>Furthermore, in the interest of “fairness,” Mueller offered that it would be untoward to accuse someone of a crime when there could be no ultimate determination of guilt or innocence at trial. </p>
<p>Thus, Mueller offered no opinion on whether Trump had committed a crime. (Left unsaid: What would be the point?) As he put it, charging Trump with a crime was “not an option we could consider.” </p>
<p>The two things “left unsaid” would not be “factual” statements, but rather opinions, and he was avoiding those.</p>
<p>But then we get to the most intriguing part of Mueller’s statement, where a brief lesson in logic is in order.</p>
<h2>What Mueller believes</h2>
<p>In deductive logic, there is a relationship called the “contrapositive,” which demonstrates the equivalence between statements like “if P, then Q” and “if not Q, then not P.” Millions of LSAT takers have come to learn this by evaluating the validity of arguments like the following:</p>
<pre class="highlight plaintext"><code>1. Premise: If it's raining, the streets are wet
2. Premise: It's raining
3. Conclusion: Therefore, the streets are wet
</code></pre>
<p>This is a deductively valid argument, indeed famously so. The lesson here: If you buy the truth of the premises there can be no doubt about the truth of the conclusion. This one is a cinch. </p>
<p>Now compare this argument to a second one:</p>
<pre class="highlight plaintext"><code>1. Premise: If it's raining, the streets are wet
2. Premise: The streets are not wet
3. Conclusion: Therefore, it is not raining
</code></pre>
<p>This one, too, is deductively valid, and in fact it follows the form of the contrapositive explained above. If the premises are true, one cannot help but believe the conclusion. It is, in effect, the same type of argument. </p>
<p>But now for the moment of “truth.”</p>
<pre class="highlight plaintext"><code>1. Stated premise: "If we had confidence that the
president clearly did not commit a crime,
we would have said so."
2. Unstated premise: We did not say so
3. Conclusion: We did not have confidence that the
president did not commit a crime.
</code></pre>
<p>Remove the double negative and you get the implication that – without quite saying it – Mueller believes that Trump committed a crime.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/277690/original/file-20190603-69059-1sw5r9d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Washington Post says that President Trump has made ‘made more than 10,000 false or misleading claims’ while in office.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/APTOPIX-Trump-Kim-Summit/8c8d45c381c64349b5afba5518495ede/31/0">AP/Susan Walsh</a></span>
</figcaption>
</figure>
<h2>‘Logic chopping? Cheating?’</h2>
<p>Is this message from Mueller post-truth? Cheating? Too clever by half? Or is it, as the attorneys sometimes call it, “<a href="https://www.iep.utm.edu/fallacy/#Logic%Chopping">logic chopping</a>,” the practice of using nitpicky, pedantic logic arguments to avoid dealing with the larger truth?</p>
<p>During his statement, Mueller stood with military bearing, refusing to debase himself by using the outrageous tactics of partisanship, personal attack or even overstatement. </p>
<p>Reading from his carefully prepared script, never wavering from what he has allowed himself to say, Mueller could be a prisoner of war reading a hostage statement, hoping his message will nonetheless get through.</p>
<p>Or perhaps he’s more of a schoolteacher, telling us what to study because – Congress – this will be on the test. </p>
<h2>Does Mueller matter?</h2>
<p>Have Americans’ sensibilities been so dulled by a post-truth environment that they no longer recognize the facts – and what they imply – unless they are presented within the context of politics? </p>
<p>Is America not only post-truth, but also post-logic? </p>
<p>The response to Mueller makes it seem that way. The man-who-stuck-to-the-facts was <a href="https://www.nytimes.com/2019/05/29/us/politics/mueller-resigns-special-counsel.html">immediately derided</a> as a partisan hack or as a straitjacketed government functionary. About the nicest thing said about him was <a href="https://fivethirtyeight.com/features/how-to-think-about-muellers-statement/">in the nonpartisan publication Fivethirtyeight</a>, where staff writer Amelia Thomson-DeVeaux said “In some ways, Mueller’s statement felt out of sync with the current political moment.” </p>
<p>Perhaps the role of a truth-teller in a post-truth world – the “current political moment” – is simply to play it straight: neither to indulge in false equivalance nor to pick a team just because one side is doing most of the lying. </p>
<p>[<em>Expertise in your inbox.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Sign up for our newsletter and get a digest of academic takes on today’s news, every day</a>.] </p>
<p>But telling it straight is only one-half of the equation. Such truth-tellers can insist that we do some of the work ourselves, rather than respond with lazy, thoughtless reflex. They remind us of what we have lost when all is opinion or spin – our independence of mind.</p>
<p>In a post-truth world, where everyone is jockeying for advantage and position, a truth-teller is trying to get our attention. </p>
<p>Is anyone still listening? Are we willing to do the work?</p>
<p>
<section class="inline-content">
<img src="https://images.theconversation.com/files/248895/original/file-20181204-133100-t34yqm.png?w=128&h=128">
<div>
<header>Lee McIntyre is the author of:</header>
<p><a href="https://mitpress.mit.edu/books/post-truth">Post-Truth</a></p>
<footer>MIT Press provides funding as a member of The Conversation US.</footer>
</div>
</section>
</p><img src="https://counter.theconversation.com/content/118101/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee McIntyre is a registered Democrat. MIT Press provides funding as a member of The Conversation US.</span></em></p>What’s the role of someone who, like
Robert Mueller, speaks only facts in a tornado of partisan bombast? Is it a breath of fresh air or an abdication of responsibility to protect America’s interests?Lee McIntyre, Research Fellow Center for Philosophy and History of Science, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1160342019-04-26T10:50:50Z2019-04-26T10:50:50ZHow to avoid accidentally becoming a Russian agent<figure><img src="https://images.theconversation.com/files/271071/original/file-20190425-121220-16y3niy.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C1871%2C1159&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">He's calling – but will you answer?</span> <span class="attribution"><a class="source" href="http://en.kremlin.ru/events/president/news/59485/photos">Russian Presidential Executive Office</a></span></figcaption></figure><p>American citizens are unwittingly becoming Russian agents. That’s an unavoidable conclusion of Robert Mueller’s report on his investigation into <a href="https://www.justice.gov/storage/report.pdf">Russian interference in the 2016 U.S. presidential election</a>, and an important problem that requires a change in thinking about how people interact on social media. Old adages like “Don’t talk to strangers” don’t really apply in a hyperconnected world. A more accurate replacement is perhaps even more worrying, though: “If you talk to strangers online, assume they are spies until proven otherwise.”</p>
<p>Facebook estimated that <a href="https://money.cnn.com/2017/10/30/media/russia-facebook-126-million-users/index.html">126 million Americans</a> saw one of <a href="https://www.usatoday.com/story/news/2018/05/11/what-we-found-facebook-ads-russians-accused-election-meddling/602319002/">more than 3,500 Russian-purchased ads</a> on its site. Twitter identified <a href="http://fortune.com/2017/10/31/russia-ads-facebook-twitter-google-congress/">nearly 40,000 Russia-linked accounts</a> that issued 1.5 million tweets, which were viewed a total of 288 million times. As a <a href="https://newhouse.syr.edu/faculty-staff/jennifer-grygiel">social media researcher and educator</a>, this shows the scale of people’s exposure to state propaganda and the potential to influence public opinion. But that’s not the really bad news. </p>
<p>According to the Mueller report, some U.S. citizens even helped Russian government agents organize real-life events, aiding the propaganda campaign, possibly without knowing that’s what they were doing. There’s a whole section of the report called “<a href="https://www.justice.gov/storage/report.pdf#page=39">Targeting and Recruitment of U.S. Persons</a>,” detailing how Russian agents approached people through direct messages on social media, as part of their efforts to sow discord and division in order to influence the 2016 U.S. presidential election. </p>
<p>Mueller doesn’t say why these people let themselves be manipulated into participating. But this Russian victory, the co-opting of Americans against their own democratic processes, happened because the Russian government used old-school influence techniques on new social media platforms. Online predators with harmful agendas often use the same tricks, so learn to protect yourself.</p>
<h2>Cooperate cautiously</h2>
<p>Mainly, the Russians exploited what is called the <a href="https://doi.org/10.1098/rstb.2010.0157">drive to cooperate</a>, an ingrained part of human nature that encourages people to work with others. It’s why you stop when you see someone stumble or drop something, or why you hold a door for a person carrying a lot of bags.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271069/original/file-20190425-121245-1pjssmz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It’s natural to want to offer a helping hand.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/couple-helped-us-push-car-broken-266563883">TORWAISTUDIO/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>This human trait may have been better suited for times when people didn’t interact so much online with strangers – but rather a world where people used to interact primarily in real life with family, friends, neighbors, colleagues and classmates. Now, though, online interactions link people across the world through targeted advertising, specific search results, social media hashtags and corporate algorithms that suggest who else a person should connect with. These connections may seem as strong as in-person ones, but they carry much more risk for exploitation of human kindness and the need for belonging.</p>
<p>Generally speaking, social media accounts aren’t verified, which is a means of authenticating that an online account matches the identity of an actual person or organization in real life. Accounts are often anonymous, and it’s very easy and common for people to set up <a href="https://www.thestreet.com/technology/twitter-facebook-fakes-fraud-inauthentic-behavior-14860389">fake profiles</a> that look like a real person. It is difficult to know for certain whom you’re interacting with or what they actually want out of your connection. </p>
<p>Thankfully, research has shown that people have defense mechanisms to avoid deception or what platforms have dubbed “<a href="https://www.buzzfeednews.com/article/daveyalba/facebook-removes-inauthentic-engagement-philippines-nic">inauthentic behavior</a>.” Americans being targeted by Russians aren’t just sitting ducks – they have innate skills, if they remember to use them.</p>
<h2>Reciprocate thoughtfully</h2>
<p>Research on influence and its abuse shows how persuasion works and focuses on principles such as <a href="https://hbr.org/2013/07/the-uses-and-abuses-of-influence">reciprocity</a> – the act of returning favors and things like gifts for mutual benefit. This can be a small gesture, like friends taking turns buying drinks for each other. Online, it could be even smaller: Seeing someone share your post or respond to a comment you made can cause you to want to reply or like the post on their page.</p>
<p>To avoid being duped, check things out before you reciprocate. If you and another person in an online group are interacting in public view – sharing posts and making and liking comments – it’s probably fine. But if they then send you a direct message asking for a favor or to run an errand, keep your wits about you. You still have no idea who they are, what they do for work, what their name might be or even what country they live in.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271068/original/file-20190425-121220-wjea8z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">If an online ‘friend’ asks you to dress up like Santa, maybe be skeptical.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/funny-santa-claus-wearing-red-costume-524102818">Roman Samborskyi/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>Be especially cautious if they, for instance, ask you to <a href="https://www.justice.gov/storage/report.pdf#page=40">wear a Santa Claus suit and a mask of Donald Trump’s face</a> around your city. At least one American did this, according to the Mueller report. Consider Skyping them first, or seeing if they can speak to you without the aid of Google Translate or if their <a href="https://datingtips.match.com/online-dating-5471027.html">voice matches the gender</a> they state on their profile.</p>
<h2>Join forces skeptically</h2>
<p>The Russian government also targeted close-knit communities with strong senses of shared identity, which scholars call “<a href="https://doi.org/10.1016/j.chb.2005.08.006">oneness</a>.” They created <a href="https://www.justice.gov/storage/report.pdf#page=33">online groups and pages</a> that pretended to support and participate in the Black Lives Matter movement and the LGBTQ communities.</p>
<p>It’s clear that any identity-based online group could prove an easy target, so be careful when joining and affiliating with them, especially if you do not personally know the organizers in real life.</p>
<p>There are so many different situations where influence techniques could exploit aspects of human nature that it’s impossible to outline all the potential scenarios. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=830&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=830&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=830&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1042&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1042&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271076/original/file-20190425-121245-ox4n6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1042&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An example of a Russian propaganda ad on Facebook.</span>
<span class="attribution"><a class="source" href="https://intelligence.house.gov/hpsci-11-1/">U.S. House Permanent Select Committee on Intelligence</a></span>
</figcaption>
</figure>
<p>In his book “<a href="https://www.harpercollins.com/9780061241895/influence/">Influence: The Psychology of Persuasion</a>,” psychologist Robert Cialdini offers a general rule to help defend against being swept into an influence campaign: Be on guard if you have a feeling of liking a contact more quickly, or more deeply, than you would have expected. Simply put, trust warnings from your gut if you’re starting to notice things are moving really quickly with someone you barely know. That’s especially true if this is an online friend, and even more so if the person regularly posts images of identity-based memes (known as memeplexes), like bald eagles (patriotism memeplex), rainbows (LGBT memeplex) or Jesus (Christian memeplex).</p>
<p>In an age where governments sow global political instability by exploiting social media and interpersonal trust, it’s more important than ever to be skeptical of people you connect with – not only online, but in line at Starbucks.</p><img src="https://counter.theconversation.com/content/116034/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Grygiel owns a small number of shares in the following social media companies: Facebook, Google, Twitter, Alibaba, LinkedIn, YY and Snap.</span></em></p>The Mueller report reveals that some U.S. citizens helped Russian government agents organize real-life events, aiding Russia’s propaganda campaign. Don’t be like them.Jennifer Grygiel, Assistant Professor of Communications (Social Media) & Magazine, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1157512019-04-22T10:46:53Z2019-04-22T10:46:53ZDid Trump obstruct justice? 5 questions Congress must answer<figure><img src="https://images.theconversation.com/files/270155/original/file-20190419-28113-ql6bg6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pages from Robert Mueller's final report on the special counsel investigation into Donald Trump, which show heavy redaction by the Department of Justice.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe/c3fab27e4a864872b0262e5e3677e9e6/1/0">AP Photo/Jon Elswick</a></span></figcaption></figure><p>“If we had confidence after a thorough investigation of the facts that the President of the United States did not commit obstruction of justice, we would so state. … However, we are unable to reach that judgment.”</p>
<p>That was <a href="https://www.docdroid.net/STViT5K/mueller-report-volume-2.pdf#page=7">special counsel Robert Mueller’s blunt conclusion</a> about whether President Donald Trump committed obstruction of justice. It’s found early in Mueller’s report of his <a href="https://abcnews.go.com/Politics/russia-probe-timeline-moscow-mueller/story?id=57427441">22-month investigation</a> into potentially criminal aspects of Donald Trump’s campaign and presidency.</p>
<p>Mueller’s <a href="https://graphics.axios.com/docs/mueller-report.pdf">full report</a> – <a href="https://www.nytimes.com/2019/03/22/us/politics/mueller-report.html">submitted to the Department of Justice</a> on March 22 and published online with redactions on April 19 – highlights 10 areas in which the president may have committed obstruction of justice. I’ve read this 400-page document closely, and judging as a <a href="https://law.unlv.edu/faculty/david-orentlicher">law professor and former elected official</a>, I find multiple episodes that describe possible crimes. </p>
<p>These include: firing FBI Director James Comey, who was overseeing an investigation into possible collusion between Trump’s 2016 campaign and the Russian government; attempting to curtail the special counsel’s investigation and fire Mueller; and making statements that could have discouraged former campaign aides from testifying truthfully.</p>
<p>After reviewing all Mueller’s evidence, Attorney General William Barr determined that the president did not obstruct justice. But Mueller concluded that he could <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html#g-page-3">neither charge nor exonerate Trump</a>, and indicated that Congress should consider the evidence.</p>
<p>Here’s how lawmakers will determine whether Trump committed a crime.</p>
<h2>1. Did Trump act ‘corruptly’?</h2>
<p>According to <a href="https://www.law.cornell.edu/uscode/text/18/1505">federal law</a>, obstruction occurs when a person tries to impede or influence a trial, investigation or other official proceeding with threats or corrupt intent. Bribing a judge and destroying evidence are classic examples of obstruction.</p>
<p>Other actions may constitute obstruction, depending on the context. The law requires that there be both an intent to obstruct and that the subject acted, as Mueller writes, “in a manner that is <em>likely</em> to obstruct justice.”</p>
<p>For example, when national security adviser Michael Flynn became a target in the FBI’s investigation of Russian election interference, Trump on Feb. 14, 2017 held a <a href="https://www.docdroid.net/STViT5K/mueller-report-volume-2.pdf#page=45">private meeting with Comey</a> in the Oval Office. </p>
<p>There, according to Comey, he said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” </p>
<p>Soon after, Trump <a href="https://www.cnn.com/specials/politics/james-comey-firing">fired Comey</a>. Flynn ultimately <a href="https://www.cnn.com/2017/12/01/politics/michael-flynn-charged/index.html">pleaded guilty</a> of lying to the FBI about his conversation with Russia’s ambassador and is <a href="https://www.nytimes.com/2018/12/18/us/politics/michael-flynn-sentencing.html">awaiting sentencing</a>.</p>
<p>These episodes would <a href="https://www.politico.com/magazine/story/2018/01/26/mueller-trump-obstruction-of-justice-russia-216532">constitute obstruction of justice</a> if Trump pressured and then fired Comey for “<a href="https://www.lawfareblog.com/was-firing-james-comey-obstruction-justice">corrupt</a>” – meaning willfully improper – reasons, and if these actions were likely to impede the FBI’s investigation.</p>
<h2>2. Did Trump have criminal intent?</h2>
<p>Determining intent is tricky for prosecutors. It requires them to make a subjective judgment about the suspect’s state of mind. </p>
<p>If Trump fired Comey in an effort to prevent the FBI from discovering incriminating information about him or his campaign, that would be “corrupt.”</p>
<p>Other reasons would not rise to the level of corrupt intent.</p>
<p>Mueller found that a key factor for Trump’s dismissal of Comey appears to have been concern that the FBI’s investigation was casting a cloud over his presidency and hurting his ability to govern. As president, Trump has the executive power to choose the FBI director he thinks is best suited to the job.</p>
<p>Congress will apply this “corrupt intent” standard to all the incidents of possible obstruction outlined in Mueller’s report.</p>
<h2>3. Was interference likely?</h2>
<p>Assessing whether a given action is “likely” to interfere in an investigation is a more objective determination.</p>
<p>The Mueller report is unambiguous about the negative implications of Trump’s discussion with Comey about “letting [Flynn] go.” </p>
<p>“The circumstances of the conversation show that the President was asking Comey to close the FBI’s investigation into Flynn,” it <a href="https://www.docdroid.net/STViT5K/mueller-report-volume-2.pdf#page=50">reads</a>, citing Trump’s insistence on meeting alone with Comey as evidence that the president “did not want anyone else to hear” him requesting that a federal inquiry be terminated.</p>
<p>Mueller also concludes that Trump’s expressions of “hope” would reasonably be understood as a directive when issued by a president to his subordinate. </p>
<h2>4. Is the sum greater than its parts?</h2>
<p>Sometimes a single action or statement that alone does not constitute an illegal act may demonstrate obstruction of justice when viewed alongside other incidents, because it creates a pattern of “corrupt” behavior.</p>
<p>Trump’s behavior toward Comey, for example, looks most damning when viewed alongside his many efforts to block the special counsel’s work. </p>
<p>Those include Trump’s <a href="https://www.cbsnews.com/news/mueller-report-white-house-counsel-don-mcgahn-refused-trump-order-to-fire-mueller-wary-of-saturday-night-massacre/">request to White House counsel Don McGahn</a> to have Deputy Attorney General Rod Rosenstein <a href="https://www.docdroid.net/STViT5K/mueller-report-volume-2.pdf#page=85">fire Mueller</a>. That happened in May 2017, once it became <a href="https://www.docdroid.net/STViT5K/mueller-report-volume-2.pdf#page=94">clear</a> that the special counsel would be investigating Trump for obstruction of justice. </p>
<p>Trump also pushed former Attorney General Jeff Sessions to <a href="https://www.docdroid.net/STViT5K/mueller-report-volume-2.pdf#page=98">take charge of the Mueller investigation</a>, from which he had previously <a href="https://www.nytimes.com/2017/03/02/us/politics/jeff-sessions-russia-trump-investigation-democrats.html">recused himself</a> citing conflict of interest, and asking Sessions to narrow its scope.</p>
<p>These episodes are just a few of the the dozen or so incidents that, together, indicate Donald Trump may have conspired to obstruct justice in 2017 and 2018.</p>
<h2>5. Can obstruction occur if collusion didn’t?</h2>
<p>In defending the president, Attorney General Barr has pointed to one important factor: Mueller found <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html">insufficient evidence</a> to conclude that Trump ever colluded with Russia, which would have been illegal.</p>
<p>Legally, however, obstruction can occur even in the absence of an underlying crime. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/270153/original/file-20190419-28103-9y35g8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump has repeatedly insisted, ‘No collusion. No obstruction.’ But the law says otherwise.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump/04a0546062d84ce098dbdf40468a5c87/16/0">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<p>Trump could have interfered in the FBI and special counsel investigations not to protect himself from collusion charges but to avoid scrutiny of his financial relationships with Russia or to protect members of his family or inner circle. </p>
<p>Six Trump staffers were <a href="https://www.nytimes.com/interactive/2018/08/21/us/mueller-trump-charges.html">indicted during Mueller’s investigation</a>.</p>
<h2>Trump’s verdict will come in 2020</h2>
<p>The president has celebrated the Mueller report’s release as the <a href="https://www.usatoday.com/story/news/politics/2019/04/18/before-mueller-report-donald-trump-again-denounces-russia-hoax/3505336002/">end</a> of federal investigations into his administration.</p>
<p>But congressional inquiries into the president <a href="https://theconversation.com/mueller-report-how-congress-can-and-will-follow-up-on-an-incomplete-and-redacted-document-115686">are just beginning</a>. And further investigation might find evidence of other kinds of presidential misconduct.</p>
<p>In his report, Mueller wrote that Congress may decide to apply obstruction statutes to the president “in accordance with our constitutional system of checks and balances and the principle that no person is above the law.”</p>
<p>Committing obstruction of justice or other misconduct may constitute the kind of “high crime or misdemeanor” necessary to <a href="https://theconversation.com/what-happens-next-with-the-mueller-report-3-essential-reads-115765">start impeachment proceedings</a>. Several Democratic lawmakers have now called for impeachment. So far, however, House leadership shows <a href="https://www.politico.com/story/2019/04/18/democrats-impeachment-mueller-trump-1282488">little appetite</a> for impeachment, which would need bipartisan support in the Republican-led Senate to succeed in removing Trump from office. </p>
<p>Absent irrefutable new evidence of criminality that changes the minds of Republican lawmakers and voters, the American public will render its verdict on Trump’s presidency in November 2020.</p><img src="https://counter.theconversation.com/content/115751/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Orentlicher is a former state representative and is active in Democratic politics. </span></em></p>Mueller’s report describes more than a dozen times Trump may have broken the law. Here’s how Congress will decide whether the president obstructed justice during federal probes into his presidency.David Orentlicher, Professor of Law and Co-Director, Health Law Program, University of Nevada, Las VegasLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1144172019-04-08T10:45:17Z2019-04-08T10:45:17ZFor the ‘political-infotainment-media complex,’ the Mueller investigation was a gold mine<figure><img src="https://images.theconversation.com/files/267877/original/file-20190405-180041-3yot88.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In the first year of 'Russiagate' coverage, the combined profits from Fox News, MSNBC and CNN increased by 13 percent.</span> <span class="attribution"><span class="source">Nick Lehr/The Conversation</span></span></figcaption></figure><p>Almost 60 years ago, President Dwight Eisenhower <a href="https://www.youtube.com/watch?v=8y06NSBBRtY">warned</a> of a new force that fed off and profited from Cold War paranoia: the military-industrial complex.</p>
<p>Over the past couple of years, with Russia reappearing on the airwaves, a new corporate sector profiting from induced anxiety poses just as big a threat. </p>
<p>Let’s call it the political-infotainment-media complex. </p>
<p>On March 22, Robert Mueller <a href="https://www.nbcnews.com/politics/justice-department/mueller-report-was-just-delivered-what-happens-now-n985986">delivered his sealed report</a> on the narrowly defined charge of “collusion” to Attorney General William Barr. After 22 months of hype – a period in which it was <a href="http://tyndallreport.com/yearinreview2017/">the most covered story in America</a> – “Russiagate” seemed to end with a whimper. Neither reporters nor the public have read the Mueller report, but that hasn’t stopped <a href="https://taibbi.substack.com/p/russiagate-is-wmd-times-a-million">rampant speculation</a> over what’s in the report, who “lost” and who “won.”</p>
<p>None of this analysis, however, explores the larger structural problems in today’s media environment. Why was this story covered to the extent it was? What does it say about the incentive model in place for corporate media outlets? </p>
<p><a href="https://bellisario.psu.edu/people/individual/matthew-jordan">As a media scholar</a> trying to understand today’s rapidly changing media landscape, I view the Mueller investigation coverage as a direct symptom of a political-infotainment-media complex that has blurred the lines between tabloid soap operas and respectable journalism. </p>
<h2>Infotainment is the hook</h2>
<p>To understand what happened with coverage of the Mueller investigation – and is already happening again in its second act – it’s important to understand the incentives of media networks, old and new. </p>
<p>In his seminal work “<a href="https://books.google.com/books?id=c3pK97NgNPIC&printsec=frontcover&dq=Television:+Technology+and+Cultural+Form&hl=en&sa=X&ved=0ahUKEwi3h8jIgbfhAhWvs1kKHfI0BxQQ6AEIKjAA#v=onepage&q&f=false">Television: Technology and Cultural Form</a>,” media critic Raymond Williams explained how, in the early days of television, people would often tune in for a single program and then turn off the TV. </p>
<p>But television networks soon figured out they could maximize advertising revenue if people watched all of a network’s shows, one after the other. TV producers, using commercials and promotions for other shows as a connective glue, strove to create a “flow” from one show to the next.</p>
<p>This cultivation technique is still on full display – we see it when cable news hosts pass the baton from one show to the next. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/yJoxohZ6MFg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Rachel Maddow will ‘hand off’ to Lawrence O'Donnell, creating a seamless transition.</span></figcaption>
</figure>
<p>But there is also something new going on. Stories like the Mueller investigation transcend individual networks and play out across all outlets, with each adapting the storyline for its particular audience. Sustaining itself beyond a particular news cycle, the investigation has played out like one epic television series – a perfect example of how the political infotainment sector profits from serial stories with long narrative arcs, cliff hangers and periodic revelations. </p>
<p>The more convoluted the story, the more audiences are drawn to preferred networks to confirm their biases. The more outlets tease the “bombshell,” the more it feeds interest. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">There were enough ‘bombshells’ in the coverage of the Mueller investigation to wipe out a city.</span>
<span class="attribution"><a class="source" href="https://media1.s-nbcnews.com/i/MSNBC/Components/Video/201901/n_msnbc_radford_mitchell_190113_1920x1080.jpg">MSNBC</a></span>
</figcaption>
</figure>
<h2>Speculation pays off</h2>
<p>For much of the past century, journalism was grounded in <a href="http://www.nupress.northwestern.edu/content/journalism-and-realism">restrained realism</a>, with dispassionate objectivity tied to professional norms.</p>
<p>But many of today’s mainstream media outlets follow something like the profit-minded business model of the original purveyor of “fake news,” <a href="https://theconversation.com/a-century-ago-progressives-were-the-ones-shouting-fake-news-90614">William Randolph Hearst</a>. Hearst sought to “fournish” a war that he could serialize and monetize, and he famously goaded the American public into war against Spain <a href="https://medium.com/covilian-military-intelligence-group/you-furnish-the-pictures-and-ill-furnish-the-war-67de6c0e1210">with disinformation dressed up as news</a>.</p>
<p>“Don’t be afraid to make a mistake,” <a href="https://books.google.com/books?id=n4p0O97RntAC&lpg=PA165&dq=%22don't%20be%20afraid%20to%20make%20a%20mistake%2C%20your%20readers%20might%20like%20it%22&pg=PA165#v=onepage&q=%22don't%20be%20afraid%20to%20make%20a%20mistake,%20your%20readers%20might%20like%20it%22&f=false">Hearst once advised</a>. “Your readers might like it.” </p>
<p>Today’s media business model doesn’t reward patience and scrupulous fact-checking. To do so is to risk missing out on clicks, eyeballs and ad revenue. </p>
<p>Furthermore, today’s outlets can easily profit from misinformation and speculation. </p>
<p>Each mistake – say, a front-page story about <a href="https://www.washingtonpost.com/world/national-security/russian-hackers-penetrated-us-electricity-grid-through-a-utility-in-vermont/2016/12/30/8fc90cc4-ceec-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.d0f403dfba5f">how the Russians hacked America’s electrical grid</a> – might require a retraction or an apology. But during its lifespan, that same mistake can boost profits, ratings and advertising revenue.</p>
<p>Once speculating about news is no longer seen as a problem and becomes a normal part of production, a whole new line of infotainment becomes available. </p>
<p>The Mueller investigation, which featured a tight-lipped investigator, created an enormous vacuum for speculation – for hundreds of round tables and panels featuring lawyers, politicians, political consultants and intelligence officers to theorize over the next twist, the latest clues and possible outcomes. Of course, it didn’t hurt that the story involved espionage, sex, celebrity, corruption and betrayal.</p>
<h2>Trolling for dollars</h2>
<p>With every subpoena, indictment or denial related to Trump’s connection to Russia, the dollars rolled in.</p>
<p>In the first year of Russiagate, total profits from cable news’ big three – Fox News, MSNBC and CNN – <a href="https://www.journalism.org/fact-sheet/cable-news/">increased by 13 percent</a>. </p>
<p>In 2018, during peak Mueller investigation coverage, MSNBC’s <a href="https://www.adweek.com/tvnewser/2018-ratings-fox-news-is-the-most-watched-network-on-cable-for-the-third-straight-year/387943">ratings rose by 10 percent during prime-time hours</a>. “The Rachel Maddow Show” rode the serial story to <a href="https://www.forbes.com/sites/markjoyella/2019/02/26/cable-news-ratings-rachel-maddow-is-no-1-and-so-is-sean-hannity/#ce8762d77301">the top ranking among the coveted 25- to 54-year-old demographic</a>. During one six-week period in July and August 2017, Maddow covered the story <a href="http://inthesetimes.com/article/21486/Robert-Mueller-russiagate-Trump-Rachel-Maddow">more than all other news topics combined</a>. </p>
<p>For 22 months, networks like CNN and MSNBC sold hope that a white knight would save the country from a corrupt villain, and that the looming event Twitter users dubbed “#MuellerTime” would lead to catharsis and relief. Ratings soared, so the network had no incentive to change its tune. </p>
<p>Hundreds of subsidiary media outlets emerged to meet the emotional needs of like-minded consumers with new content and repurposed bites that circulated through social media. Views and clicks increased. It didn’t matter whether media producers were agreeing with or inveighing against the Mueller-will-save-us storyline. The incentives guaranteed serial repetition.</p>
<p>Meanwhile, #Resistance Twitter stars like Seth Abramson fed followers open-sourced reports and pulled together various strands <a href="https://www.thedailybeast.com/resistance-twitter-star-seth-abramson-wants-to-turn-his-threads-into-a-book">to create coherent narratives</a> that he eventually spun into gold with his best-selling book “<a href="https://twitter.com/SethAbramson?lang=en">Proof of Conspiracy</a>.” Fans waited with baited breath for Abramson’s lengthy threads and responded with popcorn-eating gifs as they ate up his analysis in real time.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1079522200657510400"}"></div></p>
<p>Across the spectacular chasm dividing American politics, Fox News has also profited from Russiagate by pushing an epic defense narrative. Beginning each day with “Fox and Friends,” which <a href="https://www.politico.com/magazine/story/2018/01/05/trump-media-feedback-loop-216248">Trump often live-tweets to his 59.5 million followers</a>, the network has stoked audience rage with disinformation about villainous “deranged” Democrats besieging their celebrity savior to try to reverse the results of the 2016 election.</p>
<p>A pro-Trump audience has made Sean Hannity’s nightly show <a href="https://www.forbes.com/sites/markjoyella/2019/02/26/cable-news-ratings-rachel-maddow-is-no-1-and-so-is-sean-hannity/#ce8762d77301">number one in overall viewership</a> across cable news networks. These intensely loyal viewers managed their hopes and fears by scouring the internet to confirm Fox’s narrative, joining <a href="https://www.dailydot.com/layer8/right-wing-twitter/">like-minded media fans</a> to rage against the investigation using hashtags like <a href="https://twitter.com/hashtag/witchhunt?lang=en">#WitchHunt</a> or <a href="https://twitter.com/hashtag/RussiaHoax?src=hash&lang=en">#RussiaHoax</a>.</p>
<h2>Striking digital gold</h2>
<p>Media scholars are only beginning to come to term with <a href="https://doi.org/10.1177/1478929918807483">the significance</a> of this new mode of passionate engagement with politics through social media. </p>
<p>One thing is clear: Pro-Trump and pro-Mueller audiences have been a gold mine for social media outlets like Twitter.</p>
<p>In 2017, market analysis revealed that <a href="https://www.bloomberg.com/news/articles/2017-08-17/what-is-trump-worth-to-twitter-one-analyst-estimates-2-billion">roughly one-fifth of Twitter’s value was generated by Trump-related traffic</a>. “Russiagate” made Trump’s Twitter finger <a href="http://www.trumptwitterarchive.com/archive">particularly itchy</a> – he has tweeted the words “Witch Hunt” 185 times, “Mueller” 96 times and “collusion” 185 times. </p>
<p>The increased engagement pushed <a href="https://www.engadget.com/2018/10/25/twitter-q3-2018/">profits from its digital licensing division to $108 million</a> as the company sold data-driven predictions of users’ future behavior to would-be advertisers and political campaigns. </p>
<p>Perhaps the instant gratification and additional revenue stream of social media has pushed more traditional cable news outlets and newspapers into frothier, melodramatic territory to maximize their market potential.</p>
<p>But the political infotainment media complex doesn’t see speculation and melodrama as a journalistic problem that needs to be fixed; it’s a business model that’s becoming ingrained.</p>
<p>Until there can be a <a href="http://www.niemanlab.org/2018/12/we-will-finally-confront-systemic-market-failure/">public model for producing slower, less sensational and more careful journalism</a> – one that aims to separate truth from speculation and is inoculated from the quick lure of scooping-for-profit – Americans will be vulnerable to its unwarranted influence over political life. </p>
<p>For when the political-infotainment-media complex latches on to a serial story that feeds its profit centers, the stories that need to be covered for our democracy to properly function get left on the cutting room floor.</p>
<p>No matter what surprises or twists next season delivers, we’ll continue to miss the bigger picture.</p><img src="https://counter.theconversation.com/content/114417/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew Jordan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For the rest of us, it’s another sign of the country’s eroding media and political landscape.Matthew Jordan, Associate Professor of Media Studies, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1143982019-03-28T10:39:20Z2019-03-28T10:39:20ZWhat you need to know about the Mueller report: 4 essential reads<figure><img src="https://images.theconversation.com/files/270046/original/file-20190418-28094-d3vbs7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General William Barr at an April 18 press conference about the public release of the special counsel's report on Donald Trump. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe/c1f2dd364890466c8d41edd7eb1d08cb/11/0">AP Photo/Patrick Semansky</a></span></figcaption></figure><p>The political saga triggered by the special counsel investigation into Donald Trump, which has cast such a long shadow over his presidency, will continue long after the inquiry’s end.</p>
<p>According to U.S. Attorney General William Barr, prosecutor Robert Mueller <a href="https://www.npr.org/2019/03/22/638169023/robert-mueller-submits-report-on-russia-investigation-to-attorney-general-barr">determined that Trump’s campaign did not collude with Russia</a> to influence the 2016 presidential election. The special counsel did not make a conclusion about whether Trump committed obstruction of justice.</p>
<p>Because Barr has not made Mueller’s more than 300-page report public, his exact findings remain unknown. Congressional Democrats are demanding access to the full report by April 2 to see what Mueller uncovered during his 22-month investigation into the president.</p>
<p>As this federal probe turns into a partisan battle, here are four key threads our experts have been watching.</p>
<h2>1. Obstruction of justice</h2>
<p>In a March 24 letter to Congress summarizing Mueller’s findings, Barr wrote that the evidence collected is “not sufficient to establish that the President committed an obstruction-of-justice offense.”</p>
<p>That differs from Mueller’s conclusion. He wrote that “while this report does not conclude that the president committed a crime, it also does not exonerate him.” </p>
<p>How can two people draw different conclusions from the same evidence?</p>
<p>“Obstruction of justice is a complicated matter,” <a href="https://theconversation.com/trump-and-obstruction-of-justice-an-explainer-114270">writes law professor David Orentlicher of the University of Nevada-Las Vegas</a>.</p>
<p>According to federal law, obstruction occurs when a person tries to impede or influence a trial, investigation or other official proceeding with threats or corrupt intent.</p>
<p>“Bribing a judge and destroying evidence are classic examples of this crime,” Orentlicher says.</p>
<p>But other actions may constitute obstruction too, depending on the context. And some actions that look like obstruction may not be, because the law requires a “corrupt” intention to obstruct justice as well.</p>
<p>President Trump did many things that influenced federal investigations into him and his aides, Orentlicher points out, including firing FBI Director James Comey and publicly attacking the special counsel’s work.</p>
<p>The legal question is: Did he do so with “corrupt” intent?</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Barr’s March 24 letter to Congress.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe/fb81cf81c274490e90b6a3d6b162287c/6/0">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>2. Release of the report</h2>
<p>That’s among the many things House Democrats hope to learn from reading Mueller’s report. </p>
<p>But they <a href="https://theconversation.com/how-trump-and-barr-could-stretch-claims-of-executive-privilege-and-grand-jury-secrecy-114166">may never see it</a>, writes Charles Tiefer, professor of law at the University of Baltimore. He expects Trump and Barr will do “everything in their power to keep secret the full report and, equally important, the materials underlying the report.”</p>
<p>Tiefer was special deputy chief counsel of the House Iran-contra Investigation in the 1980s and has worked on many major House investigations.</p>
<p>“I saw the tricks the executive branch can pull to withhold evidence,” he says.</p>
<p>The main legal grounds Barr and Trump will try to use for suppressing the Mueller report, according to Tiefer, are executive privilege and grand jury secrecy.</p>
<p>Trump is likely to argue that executive privilege – the principle that the president can withhold certain information from the courts, Congress or others – permits him to keep much of the Mueller report private.</p>
<p>Executive privilege cannot be used to shield evidence of crime. But that’s where Barr’s exoneration of Trump really helps the White House, Tiefer says.</p>
<p>The attorney general, for his part, has already invoked grand jury secrecy – the rule that attorneys, jurors and others “must not disclose a matter occurring before the grand jury” – to keep Mueller’s report private.</p>
<p>Tiefer suspects Barr will seek to maximize what’s the law by using “the much-deprecated ‘Midas touch’ doctrine,” which could bury “everything indirectly and remotely having some attenuated whiff of a grand jury” as protected information.</p>
<h2>3. Politics versus the law</h2>
<p>In demanding Mueller’s full report, Democrats have asserted that Barr cannot be trusted to interpret its findings objectively because he was appointed by the president. They say that makes his exoneration of Trump a political, rather than legal, determination.</p>
<p>The question of Barr’s independence first arose during his confirmation hearing in February.</p>
<p>Barr, a veteran lawyer who previously served as President George H.W. Bush’s attorney general, interprets the Constitution as giving the president almost unlimited power. He has referred to the attorney general – the government’s top prosecutor – as “the president’s lawyer.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=345&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=345&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=345&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=433&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=433&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=433&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Barr was handpicked by Trump to be in office when the Mueller report came in.</span>
<span class="attribution"><span class="source">AP Photo/Alex Brandon/Jose Luis Magana</span></span>
</figcaption>
</figure>
<p>The question of who the attorney general works for <a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">dates back centuries</a>, says Austin Sarat, a political scientist at Amherst College. That’s because the position is not mentioned in the Constitution. </p>
<p>“It was created when the First Congress passed the Judiciary Act of 1789,” Sarat writes.</p>
<p>That law called for the appointment of a person “learned in the law, to act as attorney general for the United States.” It laid out such limited duties for the role that “the attorney general was to be a part-time official” reporting to the president, Sarat says.</p>
<p>As a result, “Throughout American history, there have been different visions of the role of the attorney general and his or her relationship to the president,” he adds.</p>
<h2>4. Loyalty to the president</h2>
<p>Trump expects <a href="https://theconversation.com/why-does-a-president-demand-loyalty-from-people-who-work-for-him-95199">personal loyalty from his staff</a> – including from his attorney general – reports Yu Ouyang, professor of political science at Purdue University Northwest.</p>
<p>The president fired the previous attorney general, Jeff Sessions, in November 2017, reportedly because Sessions’ recused himself from overseeing the FBI’s probe into Russian meddling – a betrayal that opened the door for Mueller’s appointment as special counsel. That’s how Barr got the attorney general job.</p>
<p>Ouyang, who studies loyalty and politics, says presidents it’s normal for presidents to prefer loyalists.</p>
<p>“Loyalty comes in handy for presidents when they enter office and ask, ‘How do I select the people who will help carry out my agenda?’”</p>
<p>What sets Trump apart, for Ouyang, is his “exceptional emphasis on loyalty.” He values it over other critical qualities like competence and honesty. And he appoints his staff accordingly.</p>
<p>That, say Democratic lawmakers, is why Barr cannot be the only public official to see the evidence Mueller collected on Trump.</p>
<p><em>This article is a round-up of stories from The Conversation’s archive.</em></p><img src="https://counter.theconversation.com/content/114398/count.gif" alt="The Conversation" width="1" height="1" />
As the special counsel’s investigation of Trump turns into a partisan battle in Congress, here are four key issues to follow.Catesby Holmes, International Editor | Politics Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1141662019-03-25T03:37:11Z2019-03-25T03:37:11ZHow Trump and Barr could stretch claims of executive privilege and grand jury secrecy<figure><img src="https://images.theconversation.com/files/265488/original/file-20190325-36270-wll63w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General William P. Barr, appointed by Donald Trump, has provided Congress with only a summary of Mueller's report.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/Search?query=barr+trump+nomination&ss=10&st=kw&entitysearch=&toItem=18&orderBy=Newest&searchMediaType=allmedia">AP Photo/Alex Brandon/Jose Luis Magana</a></span></figcaption></figure><p><a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f&utm_term=.3eaad741bdb1">Attorney General William Barr’s letter</a> to Congress, delivered Sunday, purports to brief lawmakers about the Mueller report.</p>
<p>What it really does is set the stage for a battle royale with Trump and Barr doing everything in their power to keep secret the full report and, equally important, the materials underlying the report. They’re likely to fight Democrats in Congress, if not both parties, over the materials’ release. And while they’ll probably cite a range of reasons for their objections to revealing the report, they also share an expansive view of a president’s right to keep his discussions secret.</p>
<p>The public and Congress are unable to judge whether Barr’s conclusions are justified because Barr’s letter is mostly silent about the underlying Mueller report conclusions and evidence. This would be remedied in time if Barr were required to provide the full report and its supporting witness and documentary evidence. </p>
<p>But Trump and Barr each have tools to minimize the access of House investigations to the report and evidence. Despite the end of Mueller’s probe, those investigations continue: Democrat Jerrold Nadler, chairman of the House Judiciary Committee, made it clear on Sunday <a href="https://www.nytimes.com/2019/03/24/us/politics/trump-impeachment-democrats.html">that he plans to “move forward” with his committee’s investigations</a>, “into obstruction of justice, abuses of power, corruption, to defend the rule of law, which is our job.” </p>
<p>The key grounds for Barr and Trump to justify withholding of evidence are <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">grand jury secrecy</a> and <a href="https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight">executive privilege</a>. </p>
<h2>It’s been done before</h2>
<p>To be sure, these grounds for withholding, properly and narrowly applied, <a href="https://www.justice.gov/file/23246/download">have support in precedent</a>.</p>
<p>But I believe that Trump and Barr can be counted on to use every means available to overstate and exaggerate the degree to which these doctrines justify withholding this information from justifiable, duly-authorized House investigations. </p>
<p>I was <a href="https://www.judiciary.senate.gov/imo/media/doc/07-11-17%20Tiefer%20Testimony.pdf">special deputy chief counsel of the House Iran-contra Investigation</a> and <a href="https://ogc.house.gov/about/prior-general-counsels">acting general counsel of the House of Representatives</a> working with many major House investigations. I saw the tricks the executive branch can pull to withhold evidence. </p>
<p>And I saw the potential for the extreme extent that Trump and Barr could go to keep important materials secret.</p>
<p>Mueller’s investigation included presenting evidence to a grand jury. So let us start with the rule that attorneys, jurors and others “<a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">must not disclose a matter occurring before the grand jury</a>” – a rule that could be used to keep much of the Mueller report secret.</p>
<p>In its precise form, this covers “proceedings” of the grand jury. These “proceedings” are occasions when the jurors themselves meet and hear evidence in an investigation. Typically, in investigations of a president or those around him, “proceedings” encompass only a small fraction of the overall body of witnesses and documents. </p>
<p>Voluntary witnesses can be interviewed by the FBI and prosecutors, without the unnecessary trappings of the grand jury. Such witnesses need only attend “proceedings” to the very limited extent that the jurors themselves need to hear them in person to vote an indictment.</p>
<p>Similarly, <a href="https://crsreports.congress.gov/product/pdf/R/R45456">the documents accumulated in an investigation</a> are only to a very limited extent brought to the grand jurors themselves, as needed for indictment. Over 90 percent of the time, interview memos by the FBI and prosecutors, not grand jury transcripts and specific grand jury exhibits, record the witness and documentary information.</p>
<h2>Defining a ‘proceeding’</h2>
<p>But Barr can be expected to wield the much-deprecated <a href="https://www.judiciary.senate.gov/imo/media/doc/08-05-15%20Brian%20Testimony.pdf">“Midas touch” doctrine</a>.<br>
Like King Midas’ touch that turned everything into gold, the “Midas touch” doctrine turns everything indirectly and remotely having some attenuated whiff of a grand jury into walled-up “proceedings” of the grand jury. </p>
<p>For example, take the former national security adviser, Michael Flynn, who <a href="https://www.politifact.com/truth-o-meter/article/2018/dec/05/detailing-michael-flynns-turn-trump-mueller/">cooperated with Mueller’s investigation</a>.</p>
<p>Mueller surely has full FBI and prosecutors’ materials and interviews regarding what Flynn said about <a href="https://www.nytimes.com/2017/12/06/us/politics/michael-flynn-russia-sanctions-ripped-up-whistleblower.html">Trump’s opposition to sanctions for Russia</a>. Yet Barr’s letter says nothing of this, even though the actual Mueller report may include a full accounting of it. </p>
<p>Here’s what could then happen if Flynn even once spoke to a grand jury: Using the “Midas touch” doctrine, Barr – if he provides a version of the Mueller report to the public – could keep all of the evidence secret that Flynn provided to law enforcement. </p>
<p>And the public would not even know if this material was expunged.</p>
<h2>What Trump can do</h2>
<p>Executive privilege is the principle that the <a href="https://www.npr.org/templates/story/story.php?storyId=11527747">president can withhold specific kinds of information from the courts, Congress or others</a>. It similarly provides a potent tool for Trump to withhold much of the Mueller report. </p>
<p>Executive privilege cannot be used to shield evidence of crime. Since Barr wrote in his letter that <a href="https://www.nytimes.com/2019/03/24/us/politics/mueller-report-summary.html">Mueller would not exonerate Trump for obstruction</a> of justice, which is a crime, I believe executive privilege should not be used to shield Trump’s communications that relate to obstruction. </p>
<p>In its narrow form, <a href="https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight">executive privilege only applies to communications with the president and those who serve him as advisers</a>. </p>
<p>So even if Trump has left an evidentiary trail a mile wide showing his intent to snuff out the Mueller inquiry, I expect Trump will claim that is all behind a wall of executive privilege. </p>
<p>And, in the broadest interpretation, executive privilege could supposedly stretch far beyond the president’s own communications, down to lowly assistants and factotums who know about <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1035&context=jcl">“pre-decisional deliberations”</a> at any level, high or low. </p>
<p>In this interpretation, if there are intelligence agency deputies who contributed to the conclusion, contrary to the president, of the Russian threat, those deputies and their reports are all “pre-decisional deliberations” shielded by executive privilege.</p>
<p>Will the House of Representatives fight against Trump and Barr’s claims of privilege? </p>
<p>Of course. The Framers called the House the <a href="https://www.nytimes.com/1974/01/21/archives/grand-inquest-of-the-nation-abroad-at-home.html">“Grand Inquest” of the nation</a> for a reason.</p><img src="https://counter.theconversation.com/content/114166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Tiefer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The president and attorney general can try to keep the findings of Mueller’s investigation secret. They’ll likely use both the secrecy of grand jury proceedings and executive privilege to do that.Charles Tiefer, Professor of law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1135092019-03-20T16:09:50Z2019-03-20T16:09:50ZThe Mueller probe: Kenneth Starr sees ‘eerie echoes’ of his 1990s Clinton investigation<p>As with Vladimir and Estragon awaiting Godot in <a href="https://www.bl.uk/20th-century-literature/articles/an-introduction-to-waiting-for-godot">Samuel Beckett’s play</a>, those eagerly anticipating the arrival of the Mueller Report may have to adjust their expectations. There has been a palpable sense that, when the document finally comes, it will be a comprehensive and detailed tome. In reality, nothing in the conduct of the investigator and his team to date suggests that this will be the case. </p>
<p>Robert Mueller has run a tight ship, and there is now speculation as to whether his full written findings will <a href="https://www.theguardian.com/us-news/2019/mar/14/house-trump-mueller-russia-investigation">ever be released</a> to the public. Perhaps he is mindful of what has come before when a sitting president has been the subject of a major investigation. Kenneth Starr, who ran that investigation, <a href="https://www.theguardian.com/us-news/2018/sep/15/ken-starr-there-are-eerie-echoes-of-the-past">suggested to The Guardian</a> that “he [Mueller] is trying to avoid landmines”.</p>
<p>It is now more than 20 years since the independent counsel report on the Whitewater Affair was released. And yet, a mention of the name “Ken Starr” to any American over a certain age will bring an inevitable memory recall of the four-year zealous pursuit of Bill Clinton for a range of alleged transgressions from <a href="https://www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline.htm">obscure land deals</a> to <a href="http://time.com/5120561/bill-clinton-monica-lewinsky-timeline/">sexual misconduct</a>. </p>
<p>Fast forward to 2019, and the hype surrounding the release of the Mueller Report rivals that of any blockbuster. This time, the special prosecutor – as the role is now known – is tasked with investigating possible links or coordination between the 2016 presidential campaign of Donald Trump and the Russian government, as well as allegations of obstruction of justice by members of the Trump administration. </p>
<h2>Hunting presidents</h2>
<p>In some respects, parallels can be drawn between the two episodes – and Starr himself has said there are “<a href="https://www.npr.org/2018/09/10/646227331/ken-starr-eerie-echoes-between-lewinsky-probe-and-mueller-s-investigation-of-tru">eerie echoes</a>” of his investigation in Mueller’s. A suspicion of misdemeanour by a man who will become president leads to the appointment of an independent prosecutor, much to the vexation of his supporters. Throughout the inquiry, the extent to which the process can be fair and non-partisan is fiercely contested. Furious allies declare a conspiracy, an apoplectic media splits along predictable partisan lines, and everyone else reaches for the popcorn.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=820&fit=crop&dpr=1 600w, https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=820&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=820&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1031&fit=crop&dpr=1 754w, https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1031&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/264109/original/file-20190315-28502-uboy2s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1031&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Clinton adviser James Carville’s take on the Starr investigation.</span>
<span class="attribution"><span class="source">Amazon</span></span>
</figcaption>
</figure>
<p>But here the similarities end. Former FBI director and Marine Corps platoon commander Mueller was <a href="https://www.bbc.co.uk/news/world-us-canada-47094301">described by the BBC</a> in 2019 as “America’s most mysterious public figure”. The 79-year-old avoids interviews and does not use Twitter. Significantly, his investigation has remained leak-free, dealing instead with the challenge of sensitive documents <a href="https://www.politico.com/story/2019/01/30/mueller-special-counsel-russia-twitter-1138293">being hacked from outside</a>. </p>
<p>Of those <a href="http://fortune.com/2019/02/12/american-confidence-mueller-over-trump-poll/">polled in February 2019</a>, 56% said they trusted Robert Mueller, with 33% in the same poll stating confidence in Donald Trump. If, as is predicted, his report is imminent, this would mean the $25m exercise will have taken less than two years – record speed for a special prosecutor to reach a conclusion.</p>
<h2>How a Starr was born</h2>
<p>The Starr investigation was a significantly different beast, not least because the inquiry led by special prosecutor Robert Fiske into the Clinton affairs was already eight months underway <a href="https://www.washingtonpost.com/gdpr-consent/?destination=%2farchive%2fpolitics%2f1994%2f08%2f06%2fjudges-replace-fiske-as-whitewater-counsel%2f4ca08c66-62cd-4ef3-a44f-9835399ed0ee%2f%3f&utm_term=.93bbb00609cf">when Starr took over</a>. An interim report had been filed, which found that the former Arkansas governor had not acted unlawfully in the Whitewater land deal, and that there was no foul play regarding the death of White House special counsel Vince Foster. And there it should have ended. </p>
<p>But when President Clinton signed the Bill that <a href="https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html">reauthorised the Independent Counsel Act in 1994</a>, the avenue for further investigation was opened – with no time or funding limit. The four-year, $39.4m <a href="https://www.theguardian.com/world/1998/nov/18/clinton.usa">Starr investigation</a> began. </p>
<p>Characterised by leaks, and questionable decisions regarding how to deal with the media, the inquiry became increasingly melodramatic as villains, cheats, religious zealots and victims embraced their roles. At times, it seemed that the public, not yet consumed with new media, had a more measured take on the proceedings than those inside the Beltway. </p>
<p>As the investigation reached its climax, the president’s approval remained stubbornly high, helped not only by a buoyant economy but by the undeniable fact that a majority of the public held the prosecutor in such low regard. Gallup polls at the time of the Starr Report and ensuing impeachment <a href="https://news.gallup.com/poll/3529/starrs-tenure-independent-counsel-marked-strongly-unfavorable.aspx">showed public disapproval of Starr</a> peaking at 62%, alongside 66% approval rating for Clinton’s presidency. Mueller aside, Donald Trump has never yet <a href="https://projects.fivethirtyeight.com/trump-approval-ratings/">reached an approval rating above 58%</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1106312022982053893"}"></div></p>
<p>The key difference between the Mueller and Starr inquiries lies, rather obviously, with the fact that the former has the potential to be the most, if not an even more, serious constitutional crisis since Watergate. The other was nothing of the sort – and if the public response to the Starr Report could be summed up in a sentence, it might be that lying about sex is more grounds for divorce than for impeachment. On the other hand, lying about complicity in alleged Russian interference in a US presidential election is a grave matter indeed.</p>
<p>But thanks to the toxic partisanship that now prevails not only in Washington DC but throughout the country, the penchant to believe that any stories that challenge either partisan narrative are “fake news”. In this era of tribal political warfare, this is potentially problematic for Mueller. The veracity of his findings may yet be rejected by those determined to choose their own truth.</p><img src="https://counter.theconversation.com/content/113509/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clodagh Harrington does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Those awaiting a rollicking read from Robert Mueller may need to manage their expectations.Clodagh Harrington, Associate Professor of American Politics, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1118062019-02-18T13:08:27Z2019-02-18T13:08:27ZThe public may never see a report from Mueller’s investigation<figure><img src="https://images.theconversation.com/files/259165/original/file-20190214-1736-14ds33w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Will the public ever see a report from Special Counsel Robert Mueller?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/174784997?src=fddcud85MIapyBoGDVTgkw-1-95&size=huge_jpg">Shutterstock</a></span></figcaption></figure><p>Almost from the day of <a href="https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html">Robert Mueller’s appointment as special counsel</a>, the media and the public have expected that his investigation will end <a href="https://www.washingtonpost.com/outlook/2018/11/12/congress-made-starr-report-public-it-shouldnt-hide-muellers/?utm_term=.3a11eec47ebf">with a report to either the Congress or the public</a> or both. </p>
<p>I’m a <a href="https://dickinsonlaw.psu.edu/academics/faculty/resident-faculty/stanley-brand">law school professor who teaches</a> a course on the <a href="https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html">independent counsel, the predecessor of the special counsel</a>. </p>
<p>For eight years, I was the general counsel for the U.S. House of Representatives, the chief legal officer responsible for representing the House, its members, officers and employees in connection with legal procedures and challenges to the conduct of their official activities.</p>
<p>I believe that the public’s expectation that they will see a report from the Mueller investigation is unrealistic. That expectation appears to be based on a misunderstanding of the legal principles involved in making any such report available to anyone outside of the Department of Justice.</p>
<h2>Regulation reflects history</h2>
<p>The previous law creating special counsels – which has now lapsed – directed the special counsel to report to the House of Representatives <a href="https://www.law.cornell.edu/uscode/text/28/595">“substantial and credible information”</a> of impeachable conduct. </p>
<p>The <a href="https://www.govinfo.gov/content/pkg/CFR-2016-title28-vol2/pdf/CFR-2016-title28-vol2-part600.pdf">current regulation</a>, adopted during the Clinton administration, provides no such direction. </p>
<p>It says only that “[a]t the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report” <a href="https://www.law.cornell.edu/cfr/text/28/600.8">explaining the decision to either prosecute or not.</a> </p>
<p>The goal of those <a href="https://www.nytimes.com/2018/08/23/podcasts/the-daily/mueller-trump-congress.html">drafting the regulation</a> was to restore more control to the department over the special counsel after <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel030299.htm">what was seen as the excesses</a> of previous <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/e-policing.php">independent counsels in the Iran Contra</a> and <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel030299.htm">Clinton cases</a>.</p>
<p>Those excesses included overly broad and lengthy investigations such as <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal90-1113631#H2_3">the HUD Independent Counsel,</a> which took eight years to complete; expensive investigations, including <a href="https://www.politifact.com/truth-o-meter/statements/2018/may/23/donald-trump/mueller-probe-costing-20-million-donald-trump-says/">US$52 million estimated in one case</a>; and oppressive prosecutorial tactics, like <a href="https://www.washingtonpost.com/archive/politics/1998/02/12/lewinskys-mother-overcome-by-emotion-during-testimony/46ca3376-b1ed-4c99-8797-8c3e59198c61/?utm_term=.95ae9d32c086">subpoenaing Monica Lewinsky’s mother</a> to the grand jury.</p>
<p>Former Department of Justice official Neal Katyal, who drafted the regulations, has explained that returning a degree of control over the process to the Department of Justice would result in a restoration of the separation of powers balance between the executive branch and Congress in these cases. </p>
<p>“The special counsel regulations were drafted at a unique historical moment,” <a href="https://www.washingtonpost.com/posteverything/wp/2017/05/19/politics-could-still-block-muellers-investigation-i-know-i-wrote-the-rules/?utm_term=.2d93c5014dff">wrote Katyal in the Washington Post</a>. </p>
<p>“Presidents of both parties had suffered through scandals and prosecutions under the Independent Counsel Act…There was a chance to rethink things without either party fearing that it would give its political adversaries an advantage.” </p>
<h2>Grand jury mum</h2>
<p>Perhaps more importantly, much of any “Mueller report” would almost inevitably reveal materials presented during the grand jury proceedings. Yet federal law dictates that <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">grand jury proceedings are secret</a>.</p>
<p><a href="https://fas.org/sgp/crs/secrecy/R45456.pdf">There are exceptions</a>. Grand jury materials, for example, such as testimony and documents can be revealed in connection with a judicial proceeding at the request of the government, for state or Indian tribal law enforcement purposes, attorney disbarment proceedings or in connection with a violation of military criminal law. </p>
<p>But they can’t be revealed to Congress or the public unless under these exceptions. </p>
<p>The Department of Justice has vigorously opposed, in court, efforts by Congress to obtain such materials. In connection with the <a href="https://catalog.hathitrust.org/Record/010515417">congressional investigation of the E.F. Hutton</a> mail and wire fraud case in the 1980s, a <a href="https://fas.org/sgp/crs/misc/RL34197.pdf">congressional committee subpoenaed records</a> that had been reviewed by the grand jury and the Department of Justice filed an action to prevent disclosure.</p>
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<a href="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">FBI Director James Comey gave a roundly criticized press conference in 2016 to discuss not filing charges against Hillary Clinton.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Clinton-Emails/f72a7276fe7b46b99723fe9ed51d53c3/134/0">AP/Cliff Owen</a></span>
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<p>Grand jury records and prosecutors’ decisions about individual cases <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">are shielded from public view</a> to protect those who may have been investigated but not charged. </p>
<p>The press conference about <a href="https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system">the investigation into Hillary Clinton’s emails held</a> by former FBI Director James Comey in July 2016 was widely criticized by former Department of Justice officials and prosecutors of both parties for deviating from this policy. </p>
<p>Comey acknowledged he was departing from normal procedure. </p>
<p>“This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would,” said Comey. </p>
<p>Some critics have linked Hillary Clinton’s election defeat to the statements by Comey that Clinton was “extremely careless,” even though he determined she did not commit offenses for which she should be prosecuted. </p>
<p>Rod Rosenstein, the deputy attorney general, <a href="https://ig.ft.com/trump-comey-memo/">explained the policy best</a>. Comey “laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook case example of what prosecutors…are taught not to do.”</p>
<p>Given all these limitations, in the words of NYU professor and <a href="https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.biography&personid=19943">legal ethicist Stephen Gillers</a>, the prosecutor has two choices: “<a href="https://www.nytimes.com/2017/03/24/nyregion/bill-de-blasio-campaign-finance.html">Indict or shut up</a>.” </p>
<h2>Big exception</h2>
<p>Finally, there is the Watergate precedent. </p>
<p>The grand jury investigating Watergate prepared a sealed report, with <a href="https://www.washingtonpost.com/local/public-safety/us-archivists-release-watergate-report-that-could-be-possible-road-map-for-mueller/2018/10/31/841cc938-dbb5-11e8-85df-7a6b4d25cfbb_story.html?utm_term=.066fb6ee8270">assistance from special counsel Leon Jaworski</a>, and requested permission from the court to <a href="https://www.lawfareblog.com/watergate-road-map-and-coming-mueller-report">release it to the House Judiciary Committee</a>. </p>
<p>The committee had requested such a report as necessary for its impeachment inquiry into crimes Nixon was <a href="https://www.nytimes.com/1974/08/09/archives/the-case-against-richard-nixon-a-catalogue-of-charges-and-his.html">alleged to have committed related to the Watergate burglary</a>. </p>
<p><a href="https://www.casemine.com/judgement/us/59149695add7b049345e3e4d">The court determined</a> that Rule 6(e) permitted transmission to the House, despite its restrictions on disclosure and no unambiguous exception for disclosure to Congress. </p>
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<figcaption>
<span class="caption">U.S. District Court Judge John Sirica, who ruled in 1974 that a grand jury report could be shared with a congressional committee investigating Watergate.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-Associated-Press-Domestic-News-Dist-of-/f5e03a41ed854e2f8e878ce35288603e/29/0">AP</a></span>
</figcaption>
</figure>
<p>Nixon did not challenge the decision. The public did not, however, see it for decades. It remained sealed until 2018, <a href="https://www.washingtonpost.com/local/public-safety/us-archivists-release-watergate-report-that-could-be-possible-road-map-for-mueller/2018/10/31/841cc938-dbb5-11e8-85df-7a6b4d25cfbb_story.html?utm_term=.51d2e844e2a7">when a judge released most of it</a> in response to a lawsuit. </p>
<p>The release of the Watergate grand jury’s report happened under a very narrow and specific set of circumstances related to a House committee’s impeachment investigation. It remains a serious legal question whether release to Congress of the Mueller grand jury’s deliberations would be barred by the law.</p>
<p>No such House proceeding is yet underway to determine whether the president should be impeached. And there are a lot of “ifs” that would apply were such a committee to request access to any Mueller grand jury report: Even if impeachment of Trump were to be considered by the House, if the committee requested grand jury records, if the grand jury wanted to provide the House with testimony and if a judge allowed it, it is unlikely that Trump would respond as Nixon did and fail to appeal the decision. </p>
<p>Of course, Congress could attempt to subpoena the report. That would undoubtedly produce prolonged litigation.</p>
<p>None of this is to say that the “Mueller report” will not ultimately see the light of day. </p>
<p>Rather, there are significant legal and procedural hurdles to overcome in making it public and no clear precedent which can be relied on to predict such an outcome.</p><img src="https://counter.theconversation.com/content/111806/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Will the public ever see a report from Robert Mueller’s investigation of possible collusion between the Trump campaign and Russia? Maybe not. There are big legal hurdles to making it public.Stanley M. Brand, Distinguished Fellow in Law and Government, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1090252018-12-20T11:36:40Z2018-12-20T11:36:40ZIt started with Nazis: Concerns over foreign agents not just a Trump-era phenomenon<figure><img src="https://images.theconversation.com/files/251573/original/file-20181219-45406-17pgr77.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government's website for FARA.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Campaign-2016-Trump-Aides-Ukraine-Lobbying/52aa64eb7a4a41aca4f7191c42fa4d62/2/0">AP/Jon Elswick</a></span></figcaption></figure><p>A U.S. law used to fight Nazi propaganda that many experts saw as a historical relic has come back to life.</p>
<p>Businessmen Bijan Kian and Ekim Alptekin, once associates of former national security adviser Michael Flynn, were indicted on several counts of violating the <a href="https://www.justice.gov/nsd-fara">Foreign Agents Registration Act</a>, commonly called FARA, <a href="https://www.nytimes.com/2018/12/17/us/politics/flynn-turkey-bijan-kian.html">in mid-December</a>. </p>
<p><a href="https://www.justice.gov/nsd-fara">The act</a> requires “agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure” of that relationship. Activities taken as a result of it must also be disclosed.</p>
<p>Kian and Alptekin are only the latest targets in a series of indictments and guilty pleas related to FARA. Their case is part of a return to the headlines for a law that had fallen into disuse.</p>
<p>From 1966 to 2015, the Department of Justice pursued <a href="https://www.nytimes.com/2018/08/01/us/politics/fara-foreign-agents-mueller.html?login=email&auth=login-email">just seven FARA cases in court</a>. </p>
<p>FARA spent the second half of the 20th century ignored and unused, and its initial purpose long forgotten: the prosecution of Nazis for interfering with American democracy.</p>
<p>Using the media tools of the time, the Nazis were able to integrate their messages into America’s politics. The law aimed at fighting that disinformation has <a href="https://www.npr.org/2018/12/17/677390345/new-reports-detail-expansive-russia-disinformation-scheme-targeting-u-s">startling relevance</a> to our lives today.</p>
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<a href="https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251577/original/file-20181219-45397-1ru120.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bijan Kian, a one-time business partner of former national security adviser Michael Flynn, was recently indicted on charges including failing to register as a foreign agent.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe-Flynn/88eb7954d6904dd19f2d2bb865a24d1b/2/0">AP/Jacquelyn Martin</a></span>
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<h2>Old law, new targets</h2>
<p>FARA’s diminished status changed with the recent indictments related to <a href="https://www.nytimes.com/2018/08/01/us/politics/fara-foreign-agents-mueller.html">Robert Mueller’s investigations</a>, and with good reason. </p>
<p>The law was designed precisely to combat the type of election interference and lobbying activities <a href="https://www.pbs.org/wgbh/frontline/article/the-russia-investigations-explained/">the special prosecutor’s team is currently examining</a>. </p>
<p>As my recent book, “<a href="https://us.macmillan.com/books/9781250148957">Hitler’s American Friends: The Third Reich’s Supporters in the United States</a>,” points out, the Foreign Agents Registration Act was introduced in Congress in summer 1937 with a specific threat in mind: Nazi subversion of the American democratic system. </p>
<p>From 1933 to the 1941 bombing of Pearl Harbor, Nazi agents across the United States had operated with virtual impunity. They spread anti-Semitic propaganda, attacked President Franklin D. Roosevelt and tried to convince Americans that they should pressure the Roosevelt administration to stay out of any future European war. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=758&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=758&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=758&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=953&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=953&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251585/original/file-20181219-45403-wq7w6x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=953&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Sylvester Viereck, Nazi propagandist in the U.S.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Sylvester_Viereck_cph.3b27115.jpg">Library of Congress via Wikimedia</a></span>
</figcaption>
</figure>
<p>More dangerously, George Sylvester Viereck was a Nazi agent, paid by the German Embassy and ensconced on Capitol Hill itself. </p>
<p>Viereck nominally worked as a journalist and publicist for the Reich. In reality, Viereck was running a bold campaign to insert Nazi propaganda into the Congressional Record with the help of sympathetic senators and representatives. They included Minnesota Sen. <a href="http://bioguide.congress.gov/scripts/biodisplay.pl?index=L000514">Ernest Lundeen</a> of the Farmer-Labor Party, West Virginia Sen. <a href="http://bioguide.congress.gov/scripts/biodisplay.pl?index=H000749">Rush D. Holt</a>, a Democrat, and New York Republican Rep. <a href="http://bioguide.congress.gov/scripts/biodisplay.pl?index=F000142">Hamilton Fish III</a>. </p>
<p>Viereck had a great distribution plan: He convinced his congressional allies to deliver speeches he had written for them, or simply insert them by unanimous consent into the legislative record. </p>
<p>He would then use money provided by the German embassy to order large numbers of reprints of those speeches. He mailed those copies to Americans on the mailing lists of isolationist pressure groups using legislators’ franked, pre-stamped envelopes. Postage was paid by the taxpayers.</p>
<p>From 1936 to 1940, Viereck’s pro-German, anti-British and anti-Roosevelt propaganda reached millions of Americans thanks to a combination of Nazi cash and the cooperation of American politicians. </p>
<p>Viereck was so successful that he even purchased a small publishing company called Flanders Hall and used German money to begin pumping out cheap monographs for mass distribution. </p>
<p>This plan was brazen, and, before FARA, probably legal. Though the extent of Viereck’s operation was not known when FARA was passed, he had already been investigated during World War I for <a href="https://www.jta.org/1933/12/17/archive/viereck-called-chief-nazi-propagandist-in-u-s">similar pro-German propaganda activities</a>. </p>
<p>His later appearance on Capitol Hill aroused suspicion, and in 1938 he became one of the first witnesses subpoenaed to testify before the <a href="https://www2.gwu.edu/%7Eerpapers/teachinger/glossary/huac.cfm">House Un-American Activities Committee</a>, chaired by Representative Martin Dies Jr. of Texas. </p>
<p>Yet, even if Viereck could be shown to have been taking German money, there was effectively no statute he could easily be prosecuted under since his activities fell far short of espionage.</p>
<h2>Fighting foreign influence</h2>
<p>This Nazi agent was precisely the type of foreign agent FARA was designed to unmask and prosecute. The statements of its creators make this clear. </p>
<p>In 1937, Rep. John W. McCormack of Massachusetts – who was later elected speaker – <a href="https://www.govinfo.gov/content/pkg/USCODE-2009-title22/pdf/USCODE-2009-title22-chap11-subchapII.pdf">introduced FARA</a> in the House of
Representatives. </p>
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<a href="https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=787&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=787&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=787&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=989&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=989&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251582/original/file-20181219-45408-17n3tco.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=989&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Massachusetts Rep. John W. McCormack authored the Foreign Agents Registration Act, which passed in 1937.</span>
<span class="attribution"><a class="source" href="http://ddr.densho.org/ddr-njpa-1-961/">The Hawaii Times Photo Archives Foundation, Nippu Jiji Photograph Archive</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>McCormack told his colleagues that the bill was needed because the German government had undertaken a concerted effort to disseminate propaganda in the U.S. </p>
<p>Nazi agents, he said, were trying to convince American young people to “disbelieve in our form of Government.” The Nazis wanted to convert them to “political doctrines and philosophy which are utterly contrary to the doctrines and principles upon which our American Government is based.” </p>
<p>McCormack’s solution was to expose “their nefarious ideas,” he said.
FARA, he added, “will expose them (the propagandists) to the pitiless light of publicity. The passage of this bill will label such propaganda just as the law requires us to label poison.”</p>
<p>In its original form, FARA required agents working for a “foreign principal” including governments, political parties and foreign-based corporations to reveal their activities and the details of their contracts to the government. Journalists and accredited diplomats were specifically exempted from registration. </p>
<p>Agents who failed to register their activities or made knowingly false statements could face fines or even imprisonment. </p>
<h2>Law catches the agents</h2>
<p>President Roosevelt signed FARA into law in 1938. More than a dozen suspected Nazi agents, including Viereck, were subsequently investigated and indicted, though Viereck’s conviction eventually was <a href="https://supreme.justia.com/cases/federal/us/318/236/">overturned on a technicality</a>.</p>
<p>Some Nazi agents spent the entire war in prison as a result, limiting the damage they might have been able to inflict on the U.S. military effort. </p>
<p>Over subsequent decades, FARA made an occasional return to the headlines.</p>
<p>Despite these successes, subsequent amendments changed FARA’s scope. A 1995 provision allows some who would have fallen under its remit to register under the less stringent <a href="https://lobbyingdisclosure.house.gov/amended_lda_guide.html">Lobbying Disclosure Act</a>. </p>
<p>As a result, <a href="https://jenner.com/system/assets/publications/17773/original/The%20Revival%20of%20the%20Foreign%20Agents%20Registration%20Act_%20What%20You%20Should%20Know,%20and%20What%20to%20do%20Next.pdf?1519768945">FARA fell into virtual obscurity</a> by the early 21st century. </p>
<p>Foreign agents were still required to register their activities and the Department of Justice nominally pursued those who failed to do so. But by the department’s <a href="https://www.judiciary.senate.gov/imo/media/doc/07-26-17%20Hickey%20Testimony.pdf">own admission</a>, enforcement was mostly limited to sending suspected violators a threatening letter.</p>
<p>All this has changed with special prosecutor Mueller’s recent actions. Most prominently, former Donald J. Trump campaign chairman Paul Manafort pleaded guilty to charges that <a href="https://www.cnbc.com/2018/09/14/trump-campaign-chief-paul-manafort-pleads-guilty-to-conspiracy-charges.html">included deliberate violations of FARA</a>. </p>
<p>Even in cases where Mueller has not directly used FARA to bring an indictment, it has still provided legal grounds on which to open an investigation and pursue more serious charges, or <a href="https://www.vox.com/2018/8/31/17805310/sam-patten-mueller-plea-manafort">secure witness cooperation</a>.</p>
<h2>Reform ahead?</h2>
<p>The original intent of FARA was to inform the American people about the sources of the information they were receiving about the critical issues of the day. It was designed to carefully protect the First Amendment rights of those producing messages, while requiring that the source of the money used to distribute them be revealed. </p>
<p>Congress could consider revisions to FARA that will make it more relevant to the 21st century. </p>
<p>For example, the term “lobbyist” was not in widespread use in 1937 and does not appear in the original statue.</p>
<p>Instead, the original version of FARA lists those required to register as those working as “public-relations counsel, publicity agent, or as agent, servant, representative, or attorney for a foreign principal.” </p>
<p>The most antiquated of these terms, “publicity agent,” <a href="https://www.govinfo.gov/content/pkg/USCODE-2009-title22/pdf/USCODE-2009-title22-chap11-subchapII.pdf">was defined as</a> “any person who engages directly or indirectly in the publication or dissemination of oral, visual, graphic, written, or pictorial information … including publication by means of advertising, books, periodicals, newspapers, lectures, broadcasts, motion pictures, or otherwise.”</p>
<p>Congress might well consider this definition’s relevance to the technology-saturated world of the 21st century, and the intent behind its original inclusion.</p>
<p>As Rep. McCormack put it in 1937, the United States is now undertaking an effort to label propaganda just as it labels poison. FARA may well provide a perfect tool to do so.</p><img src="https://counter.theconversation.com/content/109025/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bradley W. Hart does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The initial aim of the 1937 Foreign Agents Registration Act was long forgotten: the prosecution of Nazis for interfering with American democracy. But that law is startlingly relevant to the US now.Bradley W. Hart, Assistant Professor of Media, Communications and Journalism, California State University, FresnoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1066142018-11-09T11:44:24Z2018-11-09T11:44:24Z3 things Jeff Sessions did as attorney general that history should remember<figure><img src="https://images.theconversation.com/files/244667/original/file-20181108-74754-1dyzkyn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mike Pence administers the oath of office to Attorney General Jeff Sessions.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-100-100-Photos/790340e9197445da8dcc8393b47e89fd/1/0">AP Photo/Pablo Martinez Monsivais, File</a></span></figcaption></figure><p>President Donald Trump’s sacking of Attorney General Jeff Sessions has raised concerns among those who wish to see the investigation by special counsel Robert Mueller continue unimpeded.</p>
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<p>Those same people will likely not lament Session’s ouster based on what he accomplished as attorney general. In my view, his tenure as attorney general saw him on the wrong side of most important law enforcement decisions. On the other hand, many will point to him as a historic champion for “law and order” conservatism at the highest level. </p>
<p>Here are three areas where Sessions will most be remembered. </p>
<h2>1. Controversial from the start</h2>
<p>Sessions’ tenure began back in early 2017. During his <a href="https://www.nytimes.com/2017/03/02/us/politics/jeff-sessions-russia-trump-investigation-democrats.html">confirmation hearings</a>, Sessions testified incorrectly under oath that he had had no contacts with Russian officials during his active role in the 2016 Trump campaign. When it became public that he had met with the Russian ambassador, <a href="https://www.factcheck.org/2017/03/did-sessions-lie/">he claimed he had not lied</a>. But because of those contacts and his role in the campaign, he recused himself from the Russia investigation.</p>
<p>This caused a rift between him and President Trump, which was ironic, given that Sessions enthusiastically implemented most of Trump’s policy priorities. In the end, the perceived lack of personal loyalty from the recusal – the necessity of which seemed pretty straightforward to most outside legal observers – proved to be Sessions’ downfall. </p>
<h2>2. Crackdown on drugs</h2>
<p>Sessions enthusiastically waged the war on drugs, much to the chagrin of those who considered that war a proven failure. </p>
<p>Sessions <a href="https://www.washingtonpost.com/world/national-security/sessions-issues-sweeping-new-criminal-charging-policy/2017/05/11/4752bd42-3697-11e7-b373-418f6849a004_story.html?noredirect=on&utm_term=.e4d64261fdc7">instructed prosecutors</a> to seek the maximum possible sentences for drug offenses and in 2017 <a href="https://www.reuters.com/article/us-usa-prisons-idUSKBN1622NN">reversed an Obama-era Department of Justice policy</a> that barred the Department of Justice from contracting with private prisons.</p>
<p>He also reversed the Obama-era policy against federal enforcement of <a href="https://www.washingtonpost.com/world/national-security/sessions-is-rescinding-obama-era-directive-for-feds-to-back-off-marijuana-enforcement-in-states-with-legal-pot/2018/01/04/b1a42746-f157-11e7-b3bf-ab90a706e175_story.html?utm_term=.f2e0b306ebf5">marijuana possession laws</a> in states where marijuana had been decriminalized. This meant low-level drug offenders were subjected to serious federal criminal penalties for dealing a substance made legal under state law. This position highlighted a tension between the dueling conservative principles of being “tough on crime” while also respecting states’ rights.</p>
<p>Sessions’ criminal justice policies would put many more people in jail, exacerbating the perceived problem of <a href="https://www.politifact.com/virginia/statements/2014/dec/15/jim-webb/webb-says-us-has-5-percent-worlds-population-25-pe/">mass incarceration</a>. America is responsible for 25 percent of the world’s imprisoned persons despite having only 5 percent of the world’s population. As attorney general, Sessions embraced the policies seen by many as major causes of this problem, including harsh mandatory minimum sentences; the use of private prisons which create a for-profit incentive to incarcerate; and imprisoning persons who commit low-level, nonviolent drug offenses. </p>
<p>Sessions and his supporters argued that illegal drugs are a scourge, and that swift and certain punishment was the best means of combating it. This included a Sessions-led crackdown on <a href="https://www.nytimes.com/2018/08/22/us/politics/opioids-crackdown-sessions.html">doctors, drug dealers and traffickers</a> whose distribution of drugs through either legal or illegal means fed the nation’s opioid epidemic, one of the signal Sessions efforts which garnered the most bipartisan support. </p>
<h2>3. ‘Zero tolerance’ at the border</h2>
<p>On immigration, Sessions faithfully put into action the tough talk of the president – even where, some would say, supporting evidence was lacking. </p>
<p>Research shows that immigrants commit fewer crimes in the U.S. <a href="https://theconversation.com/immigration-and-crime-what-does-the-research-say-72176">than non-immigrants</a>.</p>
<p>But Sessions often falsely claimed that there was a strong correlation between immigration – including legal immigration – and crime, including terrorism. He pointed out that members of the notorious <a href="https://theconversation.com/central-american-gangs-like-ms-13-were-born-out-of-failed-anti-crime-policies-76554">MS-13 gang</a> came to the U.S. from other countries – although, ironically, the gang got its start here in the U.S. </p>
<p>Sessions used the false connection between immigrants and crime for sharp reductions in the number of <a href="https://www.usatoday.com/story/news/politics/2015/10/01/syria-refugee-crisis-congress-hearing/73164432/">Syrian refugees the U.S. should admit</a>, despite the fact that it is IS terrorists that they themselves are fleeing. He also used it to justify a crusade against so-called “sanctuary cities,” cities which forbade local law enforcement officials from enforcing certain federal immigration laws. </p>
<p>As sanctuary city advocates observe, such enforcement might make local immigrant communities less likely to report crimes, serve as witnesses, and otherwise cooperate with local law enforcement to reduce ordinary crime. Sessions’ January 2017 executive order to suspend all federal funding to such cities was eventually <a href="https://www.npr.org/2017/05/22/529560837/justice-department-narrows-scope-of-sanctuary-cities-executive-order">blocked by the courts</a> as unconstitutional overreach.</p>
<p>But the most prominent and devastating aspect of his immigration policy was creating a “zero tolerance” policy at the border – the idea that every undocumented person coming to the border without documentation would be detained and criminally prosecuted, even those pursuing valid and legal asylum claims.</p>
<p>The policy triggered the widely criticized practice of <a href="http://time.com/5268572/jeff-sessions-illegal-border-separated/">family separation</a>, in which federal agents separated <a href="https://www.vox.com/2018/6/19/17479138/how-many-families-separated-border-immigration">thousands of children</a> from their parents. Parents <a href="https://www.cnn.com/2018/06/21/politics/jeff-sessions-immigration-family-separation/index.html">accused of no crime</a> went months without seeing their young children, talking to them or even knowing where they were. The <a href="https://psmag.com/news/trump-officials-claim-to-be-unaware-of-the-psychological-trauma-of-family-separation">trauma produced lasting effects</a> on many of the younger, more vulnerable children. Many remain separated.</p>
<p>At the same time, the get-tough-on-immigration approach shared by Sessions and Trump resonated with many Americans, especially Republicans. Trump <a href="https://theconversation.com/republican-ads-feature-ms-13-hoping-fear-will-motivate-voters-105474">leaned on it</a> heavily to <a href="https://www.bloomberg.com/news/articles/2018-10-21/trump-gambles-with-immigration-attack-to-energize-midterm-voters">mobilize his base</a> in the run-up to the midterm elections. </p>
<p>Sessions effectively pursued the conservative goals he had long championed and which his boss favored.</p><img src="https://counter.theconversation.com/content/106614/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Mulroy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>He was a champion for ‘law and order’ policies at the highest level.Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1064672018-11-07T08:23:41Z2018-11-07T08:23:41ZUS midterm results: six key issues and what they mean for the country’s uncertain future<p>America has voted, the results are in, but the country’s future remains uncertain – for now.</p>
<p>Tuesday’s <a href="https://www.theguardian.com/us-news/2018/nov/06/midterm-elections-2018-exit-polls-voters">Congressional midterm elections</a> were billed – rightly – as among the most important in US history. Decades of widening division have been exacerbated by an aggressive Donald Trump willing to remake the American system (some might say overrun it) with his rhetoric and executive orders.</p>
<p>After 35 Senate races and verdicts on all 435 House seats, there is no clear resolution. Democrats did take the House of Representatives with a large swing; but Republicans not only clung to the Senate, they increased their majority.</p>
<p>In some races, the Republicans <a href="https://www.al.com/news/index.ssf/2015/11/what_does_gop_stand_for_and_wh.html">(GOP)</a> pulled off upsets. The current governor, Rick Scott, grabbed the Florida Senate seat narrowly from incumbent Bill Nelson, a victory replicated in the governor’s race by Ron DeSantis over Andrew Gillum – who would have been the first African-American to head Florida. The Republicans regained the Indiana seat by a larger margin with Mike Braun defeating incumbent Joe Donnelly; they took North Dakota as expected and are narrowly ahead in three other key races — a combination which could produce a 55-45 GOP advantage in the Senate for the next four years.</p>
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<p>But Democrats flipped more than 30 House seats, in some cases by double-digit majority, in all areas of the country. They regained Trump territory, notably in Pennsylvania and even the deep-red state of Texas. </p>
<p>Across the US, the Democrats held a 9% margin over the GOP – the largest gap since 2008 and one of the biggest in midterm history.</p>
<p>So with no clarity, what’s American future from November 7, 2018?</p>
<h2>1. City-Suburb v. Country</h2>
<p>This was an election that only widened the gulf between cities and their suburbs and rural areas. That split meant Democrats could pick up GOP House seats in areas such as northern Virginia, southern Florida, the suburbs from Pennsylvania to Colorado, and even the heartland of Kansas. But it also limited the advance in House seats that spanned urban and rural areas, such as the close-run race in central Kentucky.</p>
<p>And it was decisive in the vital state-wide victories in the Senate. The Democrats never had a chance in the deep red state of Tennessee. In Florida, the Democrats rolled up big margins in cities from Miami to Tallahassee but this was overtaken by the GOP tallies in the smaller but numerous rural districts from the Panhandle through the centre. Indiana went back to its deep Republican country roots to outnumber Democrat majorities in Indianapolis, Fort Wayne, and Evansville. North Dakota, the fourth most Republican state in the US, went back to the GOP, and rural Montana may also go.</p>
<h2>2. Health care not enough to redraw map… yet</h2>
<p><a href="https://www.nbcnews.com/politics/elections/midterm-exit-polls-2018-n932516">Exit polls showed</a> that healthcare, despite being down the list of headline issues in the campaign, was the number one priority for a plurality – about 40% – of voters. That portion topped the 20% each for the economy and immigration. </p>
<p>But that did not translate into a decisive rejection across the US of the GOP’s efforts to gut Obamacare. It remains to be seen whether this was an uneven priority, with voters in some states – and House districts within states – putting more emphasis on the issue than others. Or it could be that a “soft” attachment to healthcare for more voters was outweighed by a “hard” emphasis on the economy and immigration for others.</p>
<h2>3. Nor is surge of youth and women</h2>
<p>The extent of the surge in turnout is still to be calculated, but <a href="https://abcnews.go.com/Politics/election-2018-exit-poll-analysis-56-percent-country/story?id=59006586">exit polls point</a> to a sharp rise in involvement of 18 to 24-year-olds and women. Some conventional wisdom held that this shift would boost Democrats – and exit polls showed a 19% advantage among women and 35% among the 18-to-24 group. Again, on a statewide level, this did not necessarily translate into gains.</p>
<p>But there was a Blue wave in the overall vote – and more than 100 women, the large majority Democrats, will be seated in the Congress in January.</p>
<p>Is there still more to be done by Democrats to galvanise the under-25s and women? Or is this an issue of a surge among dedicated older voters that will continue to bolster the Republicans?</p>
<h2>4. Trump a double-edged sword for GOP</h2>
<p>The spectre of an immigrant “<a href="https://thehill.com/homenews/administration/413624-trump-calls-migrant-caravan-an-invasion">invasion</a>”, Trump’s primary theme, offers a paradox. The false drama may have helped Republicans in unaffected areas far from the border. But in the immigration frontline of Texas it may have cost the GOP. And, in pockets like Kansas, Trump declarations such as the ending of “birthright citizenship” may have upset Republican campaigns and led to unexpected losses because of a backlash against the anti-immigrant drive as well as its effects on local communities.</p>
<p>In addition to Beto O'Rourke’s near-upset of Ted Cruz, Democrats took a series of House seats, overcoming the urban-rural split in Texas and also flipping the GOP Senate seat in Nevada. Could Texans and Nevadans – the young, the suburban areas, Hispanic-Americans – have recoiled from Trump’s scorched-earth rhetoric and policies such as indefinite detention and the separation of children from parents?</p>
<p>And Trump had some reverse Midas touches where his patronage contributed to defeat. In Kansas, Kris Kobach – a loud Trump cheerleader who headed the ill-fated White House voter fraud commission – unexpectedly lost the governor’s race.</p>
<h2>5. Trump didn’t win, but he will tweet ‘#Winning’</h2>
<p>Donald Trump did not win these mid-terms. His party lost the House of Representatives. Some of his allies fell. And, if there was no Democrat Blue wave to retake the Senate, there are fast streams of opposition in many urban and suburban areas.</p>
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<p>But Trump is never one to accept a reality offering less than victory. So he will seize upon the increase in the Republican majority in the Senate as not only a vindication, but an outcome due to his personal intervention. He will point from Florida to North Dakota as he persists with his anti-immigrant campaign. He will rail against a “fake news” media that does not grant him acclaim, and he will falsely claim voter fraud that prevented more “#Winning”, especially in the House.</p>
<h2>6. More uncertainty – if Russia doesn’t get Trump first</h2>
<p>So it’s two more uncertain, possibly chaotic, years in the US. In “normal” times, a split Congress would be labelled as gridlock. But in the abnormal Trumpian years, the White House occupant is already beyond gridlock.</p>
<p>The Trump administration has not governed through legislation – it has only one bill, the <a href="https://www.theguardian.com/us-news/2017/dec/19/donald-trump-tax-bill-plan-house-approves-senate">December 2017 tax cuts</a>, to its credit – but through executive orders and commands to agencies. These have ranged from immigration to tariffs to shredding of environmental protections and corporate regulations to ripping up international agreements.</p>
<p>Trump will press on. The language will be even more aggressive, the proposals more brash. He will be egged on by hardline advisers, including the xenophobic, anti-immigrant Stephen Miller, as well as some of the majority in the Senate, and Republicans who have held on in the House, including the “white nationalist” Steve King of Iowa and the indicted Duncan Hunter of California.</p>
<p>The 2018 midterm elections have not checked Trump. Democratic control of the House will not stop him, despite a possible attempt to subpoena Trump’s tax records amid questions over his finances, alleged fraud and tax manipulation, and conflict of interest. </p>
<p>Perhaps the only barrier until 2020 is the Trump-Russia investigation led by Robert Mueller: its announcements and indictments have been paused this autumn but will <a href="https://edition.cnn.com/2018/11/04/politics/ip-forecast/index.html">now resume</a> and possibly close with a showdown with Trump.</p>
<p>Last week, I <a href="https://eaworldview.com/2018/11/ea-on-talkradio-assessing-the-midterm-elections-and-trumps-future/">concluded an assessment</a>, “The most important person in America on November 7 will be Robert Mueller.” This morning, amid the lack of clarity, I am doubling down on that evaluation.</p><img src="https://counter.theconversation.com/content/106467/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott Lucas does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Democrats took the House of Representatives, but uncertainty remains and Trump is still standing. All eyes are now on Robert Mueller.Scott Lucas, Professor of International Politics, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1032962018-10-11T10:42:23Z2018-10-11T10:42:23ZFrom Caesar to Trump: Immunity is a hard thing to give up<figure><img src="https://images.theconversation.com/files/239815/original/file-20181008-72117-ji628.jpg?ixlib=rb-1.1.0&rect=18%2C9%2C5981%2C3362&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. President Donald Trump during a campaign rally in Topeka, Kan., Oct. 6, 2018. </span> <span class="attribution"><a class="source" href="http://pictures.reuters.com/C.aspx?VP3=SearchResult&VBID=2C0BXZRF203QU&SMLS=1&RW=1403&RH=650#/SearchResult&VBID=2C0BXZRF203QU&SMLS=1&RW=1403&RH=650&PN=2&POPUPPN=80&POPUPIID=2C0BF1QLSYH06">REUTERS/Yuri Gripas</a></span></figcaption></figure><p>Two prosecutors working Robert Mueller’s investigation into Russian interference in the 2016 election <a href="https://www.dailymail.co.uk/news/article-6237423/Mueller-team-loses-two-prosecutors-leading-claims-end-sight.html">have left and returned to jobs</a> at the Justice Department, a possible sign that the investigation is winding down. Among the big questions remaining, after the indictments of Trump campaign staff or confidants: Will Mueller formally charge President Donald Trump with a crime? </p>
<p>As media coverage has underscored, there is a long-standing tradition of American jurisprudence that <a href="https://www.theatlantic.com/ideas/archive/2018/05/presidential-indictment/560957/">a president cannot be indicted</a> while in office. </p>
<h2>Ancient roots</h2>
<p>Immunity from prosecution for elected officials is not a modern American concept. It stretches back almost three millennia to the ancient Mediterranean. </p>
<p>Paying attention to this history, and particularly to the <a href="http://www.bbc.co.uk/history/ancient/romans/fallofromanrepublic_article_01.shtml">tumultuous last days of the Roman Republic</a> in the first century B.C., allows us to better understand how our current conversation about presidential immunity is deeply entwined with ancient Roman law, whether we know it or not.</p>
<p>As classics scholar <a href="https://www.forbes.com/sites/drsarahbond/2017/12/11/trump-mueller-and-the-ancient-history-of-grants-of-immunity/#261733f059f1">Sarah Bond</a> has recently shown, immunity “either as a privilege of office or as a special grant” has a long history as a feature of Greek, Roman and medieval law. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/239840/original/file-20181009-72121-wym197.gif?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Caesar at the Rubicon. Did his desire to retain power and immunity lead to the fall of the Roman Empire?</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/w/index.php?curid=32247178">Illustration by J.M. Synge</a></span>
</figcaption>
</figure>
<h2>Immunity in Roman law</h2>
<p>While both Roman and U.S. law render certain officeholders immune from prosecution while in office, the Romans theorized the relationship between power and office differently than U.S. law.</p>
<p><a href="https://www.jstor.org/stable/3185349">Roman law</a> granted immunity to certain elected officials whose offices entitled the holder to “imperium” or “potestas” or to officials whose office was “sacred.” </p>
<p>Offices with “imperium” are closest to what we might consider presidential powers. The term translates generally as “the right to command.” “Imperium” allowed the officeholder to exercise authority over a range of matters, such as military command, legislative authority, the maintenance of public order and the power of coercion (ranging from incarceration to capital punishment). </p>
<h2>Protection has its limits</h2>
<p>According to Roman jurists, officials with immunity <a href="https://droitromain.univ-grenoble-alpes.fr/Anglica/D2_Scott.htm#IV">could not be summoned to court</a> for criminal or civil offenses <a href="https://droitromain.univ-grenoble-alpes.fr/Anglica/D47_Scott.htm#X">while they held office</a>. </p>
<p>This did not mean, however, that those officials could never be held accountable.</p>
<p>Roman officeholders with immunity could not be removed from office until their term was <a href="https://www-jstor-org.libproxy2.usc.edu/stable/1087035">completed</a>. They kept their office until they formally laid it down in a ritual ceremony. All officeholders could be indicted after they completed their year in office for both civil and criminal offenses. </p>
<p>Since the law stipulated that officeholders with immunity could not hold two such offices consecutively, officials were often taken to court after their terms expired. </p>
<p>One of the most famous examples was the trial of Gaius Verres for his alleged crimes while <a href="https://en.wikisource.org/wiki/Against_Verres/Second_pleading/Book_1">governor of Sicily in 70 B.C.</a> Verres was brought to trial after his governorship for extorting bribes and looting art from temples, among other things. </p>
<p>As Rome conquered more territory, the temptation for provincial governors to engage in graft or other crimes increased. That’s because new territory presented greater access to resources, while the governor’s “imperium” made taking advantage of the inhabitants of these provinces far too tempting. This meant that accountability became more important over time. </p>
<p>Whereas the American system allows for the possibility of impeaching certain elected officials, the Roman system relied on veto power from a higher official or one of equal rank, and short terms of office. </p>
<p>Thus, a consul – the highest elected office in the Roman Republic and closest in practice to our president – could have his decisions vetoed by his co-consul for that year, effectively rendering his powers null. Because these offices were held for only a single year, this system made it hard for one individual to do lasting damage. </p>
<h2>Julius Caesar works the system</h2>
<p>The Roman political system began to <a href="https://www.amazon.com/Storm-Before-Beginning-Roman-Republic/dp/1610397215">fall apart</a> in the Late Republic of the first century B.C. This was a time when, much like our current moment, there was a breakdown of norms and the exploitation of the system’s rules by increasingly brazen elites. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1088&fit=crop&dpr=1 600w, https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1088&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1088&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1367&fit=crop&dpr=1 754w, https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1367&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/239837/original/file-20181009-72130-fhvpix.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1367&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Julius Caesar, who started a war so he could stay in office.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Julius_Caesar#/media/File:Gaius_Iulius_Caesar_(Vatican_Museum).jpg">Vatican Museum</a></span>
</figcaption>
</figure>
<p>The most famous example of this was Julius Caesar. </p>
<p>In 59 BCE, Caesar was first elected consul. Caesar and his opponents used bribery extensively to buy votes during the election. </p>
<p>In order to pass legislation, Caesar also violently intimidated his conservative co-Consul Bibulus to the point where he <a href="http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/12Caesars/Julius*.html">holed up in his house for the year</a>. </p>
<p>At the end of his term, Caesar arranged to be appointed proconsul, or governor, of Gaul for five years, the result of a secret alliance with Marcus Crassus, a wealthy aristocrat, and Pompey, <a href="http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/12Caesars/Julius*.html">a powerful military commander</a>. This extended his immunity and allowed him to avoid pending prosecution. </p>
<p>The First Triumvirate – as these three were called – later extended <a href="http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/12Caesars/Julius*.html">Caesar’s proconsulship by another five years</a>. </p>
<p>By 50 B.C., having held office for 10 years, Caesar’s alliance had fallen apart and he lacked the allies in Rome to secure a further renewal of his term. When his term was set to end, he feared prosecution for what he had done <a href="http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/12Caesars/Julius*.html">during his consulship</a>. </p>
<p>The next year, Caesar <a href="https://www.nationalgeographic.com/archaeology-and-history/magazine/2017/03-04/julius-caesar-crossing-rubicon-rome/">led an army across the Rubicon</a> in a bid to hold on to his office, beginning a civil war that would lead to the fall of the Republic. </p>
<p>All because he was afraid of losing his immunity.</p>
<h2>US impeachment vs. Roman veto</h2>
<p>While <a href="https://www.amazon.com/Development-Anglo-American-Jurisprudence-Nineteenth-Century/dp/0820318396">British law</a> was informed by Roman law, the founders of the American Republic relied heavily on Roman legal philosophy as a model when they wrote the Constitution. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=708&fit=crop&dpr=1 600w, https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=708&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=708&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=889&fit=crop&dpr=1 754w, https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=889&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/239839/original/file-20181009-72124-g5nih7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=889&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Alexander Hamilton first described a system for presidential immunity in the Federalist Papers.</span>
<span class="attribution"><a class="source" href="http://npg.si.edu/object/npg_NPG.79.216">National Portrait Gallery</a></span>
</figcaption>
</figure>
<p>In the Federalist Papers, <a href="http://avalon.law.yale.edu/18th_century/fed77.asp">Alexander Hamilton described presidential immunity</a> much like that which <a href="http://avalon.law.yale.edu/18th_century/fed69.asp">applied to a Roman consul</a>: The president cannot be prosecuted while in office, but he is liable to prosecution after his term ends. </p>
<p>Unlike the Roman system, Hamilton and the founders created a mechanism to remove the president from office: <a href="https://constitutioncenter.org/blog/what-the-founders-thought-about-impeachment-and-the-president">impeachment by Congress</a>. Impeachment was a necessary check. With two consuls serving alongside each other every year, the Romans had a natural check on executive power that is lacking in the American system and its single executive. </p>
<p>This brings us back to Trump’s legal troubles. Roman law relied on short terms of office and the veto power of other officeholders as checks on the grant of immunity. The American system relies on impeachment by Congress as the mechanism for checking presidential immunity. </p>
<p>Caesar’s various machinations – extending his time in government, waging war – to prolong his immunity should make it clear what any president, including Trump, could do to maintain their immunity to prosecution. These dangers apply to Republican and Democratic politicians alike. </p>
<p>As was the case with Caesar, immunity is a tough thing to give up when you may have something to lose.</p><img src="https://counter.theconversation.com/content/103296/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cavan W. Concannon does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>US law says the president can’t be indicted, an echo of ancient Roman law. The efforts Roman leader Julius Caesar made to maintain his immunity is a cautionary tale for America’s political system.Cavan W. Concannon, Associate Professor of Religion, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1008012018-08-23T10:41:56Z2018-08-23T10:41:56ZToday’s GOP leaders have little in common with those who resisted Nixon<figure><img src="https://images.theconversation.com/files/233179/original/file-20180822-149484-1o7uteq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Atty. Gen. Elliot Richardson swears in William D. Ruckelshaus as his deputy. Both men later resigned rather than carry out Nixon's order to fire the Watergate special prosecutor.</span> <span class="attribution"><span class="source">AP/John Duricka</span></span></figcaption></figure><p>Republican leaders in 2018 are profoundly different than the ones who dealt with Watergate in the 1970s. </p>
<p>During Watergate, a significant number of GOP members of Congress and the Nixon administration publicly resisted President Richard Nixon’s efforts to undermine the rule of law. </p>
<p>Today’s GOP leaders, with few exceptions, meekly follow President Trump. </p>
<p>Republicans in Congress, and even GOP candidates for Congress, <a href="https://www.npr.org/2018/07/22/631255006/republicans-struggle-to-criticize-trump">have been loathe to criticize the president</a>. Their submissiveness has significant implications.
In my view, some Republicans today are, with the support of the president, openly impeding an ongoing investigation that may or many not implicate Trump. </p>
<p><a href="https://www.washingtonpost.com/politics/conservative-lawmakers-introduce-resolution-calling-for-impeachment-of-rod-rosenstein-who-oversees-special-counsel-probe-on-russia/2018/07/25/fe8ee304-9060-11e8-bcd5-9d911c784c38_story.html?utm_term=.18fb145f5950">Recent attacks from Republicans</a> <a href="https://www.vox.com/2018/6/28/17504514/house-republicans-document-war-rosenstein-nunes-trump-mueller">on Robert Mueller’s investigation</a> into Russian interference in the 2016 election has made that much clear.</p>
<p>That’s in contrast to how some prominent members of the GOP acted during the Watergate crisis that led to President Nixon’s resignation. </p>
<p>Research in my forthcoming book “<a href="https://www.ucpress.edu/book/9780520299054/they-said-no-to-nixon">They Said No to Nixon</a>” reveals that Republican civil servants serving in President Nixon’s administration blocked his attempts to politicize their work.</p>
<p>Their stories, when contrasted with the actions of Republicans today, show how the GOP has transformed from a party that included moderate civil servants to one that embraces a culture of loyalty now.</p>
<h2>Past isn’t prologue</h2>
<p>The political backdrop today is of growing crisis for President Trump as Mueller’s investigation has spawned indictments of the president’s associates. </p>
<p>Two dozen people, including five in Trump’s circle, have <a href="https://www.washingtonpost.com/graphics/2017/national/robert-mueller-special-counsel-indictments-timeline/?utm_term=.ec2ee5bced53">been charged in Mueller’s investigation</a>. On Tuesday, Trump’s former campaign chairman <a href="https://www.npr.org/2018/08/22/640745928/guilty-6-takeaways-from-manaforts-and-cohen-s-big-day">Paul Manafort was convicted of tax evasion and bank fraud on the same day</a> the president’s former personal lawyer Michael Cohen pleaded guilty to eight federal crimes, including campaign finance violations.</p>
<p>Trump feeds the crisis atmosphere with <a href="https://www.independent.co.uk/news/world/americas/trump-twitter-live-updates-tweets-latest-us-president-meaning-explained-a8310501.html">intemperate tweets and inflammatory statements</a>.</p>
<p>Earlier this month, Trump sent out a <a href="https://twitter.com/realDonaldTrump/status/1024646945640525826?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1024646945640525826&ref_url=https%3A%2F%2Fwww.cnn.com%2F2018%2F08%2F01%2Fpolitics%2Ftrump-russia-jeff-sessions-mueller%2Findex.html">tweet</a> that openly encouraged Attorney General Jeff Sessions to end Mueller’s investigation. </p>
<p>Following the Manafort conviction, the president once again referred to the Mueller investigation as a “<a href="https://twitter.com/realDonaldTrump/status/1032259660378779648">witch hunt</a>” and praised Manafort, calling him a “<a href="https://twitter.com/realDonaldTrump/status/1032256443985084417">brave man</a>” for refusing to “break.” </p>
<p>The president has set the tone for Republicans in Congress who have mostly followed his lead. </p>
<p>Rep. Jim Jordan, R-Ohio, has attempted to rally Republicans in Congress to <a href="https://www.cbsnews.com/news/rod-rosenstein-articles-of-impeachment-introduced-house-republicans-mark-meadows-jim-jordan-2018-07-25/">impeach</a> Deputy Attorney General Rod Rosenstein, who is overseeing the Mueller investigation. House Majority Leader Paul Ryan <a href="https://www.politico.com/story/2018/07/26/ryan-rejects-conservative-push-to-impeach-rosenstein-743487">disavowed this effort, though he was still supportive of other measures</a> conservative House members wanted to take that would escalate the conflict with Rosenstein and the Justice Department. </p>
<p>The House Republican attacks on Rosenstein follow those of California Rep. Devin Nunes, the chair of the House Intelligence Committee, who has repeatedly tried to find ways to <a href="https://www.cnn.com/2018/08/09/opinions/finally-nunes-admits-what-charade-is-all-about-zelizer/index.html">limit</a> the scope of the Mueller investigation. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/233182/original/file-20180822-149484-1if4t6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rep. Jim Jordan, R-Ohio, wants to impeach Deputy Attorney General Rod Rosenstein.</span>
<span class="attribution"><span class="source">AP/Andrew Harnik</span></span>
</figcaption>
</figure>
<h2>Moderate Republicans</h2>
<p>Here are three instances when Republicans in both Congress and the Nixon administration stood up to Nixon.</p>
<p><strong>One:</strong> <a href="https://www.history.com/this-day-in-history/nixon-resigns">Richard Nixon resigned from the presidency on Aug. 9, 1974</a>, more than two years after five men who worked for the president’s re-election campaign were caught <a href="http://www.washingtonpost.com/wp-srv/politics/special/watergate/part1.html">breaking into the Democratic National Committee at the Watergate</a> office complex. </p>
<p>Subsequent investigations uncovered evidence that the <a href="https://www.nytimes.com/2007/06/30/opinion/30krogh.html">White House attempted to cover up their involvement in the break-in</a> in order to hide their broader campaign to spy on their political opponents. That evidence included the <a href="https://www.youtube.com/watch?v=ehKRQ0N-dIg">“smoking gun” tape which featured the president discussing with his Chief of Staff H.R. Haldeman</a> how they could stop the Watergate investigation. </p>
<p>On Aug. 7, Republican Senators Barry Goldwater and Hugh Scott, along with Congressman John Jacob Rhodes, went to the White House and <a href="http://articles.latimes.com/2003/aug/26/local/me-rhodes26">told the president that his support in Congress had collapsed</a>. They also told the president that the House would impeach him and that the Senate would convict him. </p>
<p><a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/0808.html">Nixon announced his resignation the very next day.</a></p>
<p><strong>Two:</strong> In contrast to the Republican party of 2018, which has largely followed Trump’s brand of conservatism, the GOP of the Nixon era represented a <a href="https://global.oup.com/academic/product/rule-and-ruin-9780199768400?cc=us&lang=en&">wider range of views</a>. The Nixon administration and Republicans in Congress included many moderates whose priorities were not always in line with the more conservative White House.</p>
<p>Among the moderates were cabinet members <a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/bday/0720.html">Attorney General Elliot Richardson</a> and <a href="https://www.treasury.gov/about/history/pages/gpschultz.aspx">Treasury Secretary George Shultz</a>. </p>
<p>Less than two months before the 1972 presidential election, in which Nixon was running for re-election, IRS Commissioner Johnnie Walters <a href="https://www.youtube.com/watch?v=FG_TjWN-Mk4">refused to comply with</a> the White House’s plan to audit hundreds of the president’s enemies. Shultz defied the White House and supported Walters, who worked for him.</p>
<p><a href="http://www.latimes.com/opinion/op-ed/la-oe-koncewicz-the-little-known-heroes-who-stood-up-to-nixon-20170517-story.html">When Nixon later sent orders to the staff of the Office of Management and Budget to punish universities that permitted large antiwar protests</a>, Shultz defied him again and refused to carry out a plan to cut federal funds to MIT.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/233181/original/file-20180822-149493-1kdymna.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Washington Post front page after the Saturday Night Massacre.</span>
<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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</figure>
<p><strong>Three:</strong> Elliot Richardson, Nixon’s attorney general, <a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1020.html">famously resigned</a> on Oct. 20, 1973, after refusing Nixon’s order to fire the Watergate Special Prosecutor Archibald Cox. Cox was investigating the Watergate burglary and crimes related to it. </p>
<p>In what came to be known as the <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/102173-2.htm">“Saturday Night Massacre,”</a> Richardson’s deputy, William Ruckelshaus, a fellow moderate, also resigned in protest. Cox was subsequently fired by the man who became acting attorney general, <a href="https://www.nytimes.com/1987/07/02/us/bork-irked-by-emphasis-on-his-role-in-watergate.html">Robert Bork</a>.</p>
<p>After Cox was fired, Congress was <a href="https://www.nytimes.com/1987/07/26/us/new-views-emerge-of-bork-s-role-in-watergate-dismissals.html">besieged by telegrams</a> calling for Nixon’s impeachment. By the end of the month, a plurality of the <a href="https://news.google.com/newspapers?id=hMofAAAAIBAJ&sjid=wdcEAAAAIBAJ&pg=694,3954202&dq=telegrams&hl=en">American public</a> were in favor of impeachment.</p>
<p>Nixon later wrote in his memoirs of Richardson, a product of the Ivy League establishment, “The first major mistake was the appointment of Richardson as Attorney General.” He added, “Richardson’s weakness, which came to light during the Cox firing, should have been apparent.” </p>
<p>Nixon labeled moderates who resisted his orders as weak and disloyal, similar to how Trump <a href="https://www.vox.com/policy-and-politics/2018/5/30/17408666/jeff-sessions-trump-attorney-general-twitter-gowdy">has described Attorney General Jeff Sessions</a> and others who disagree with him. </p>
<h2>Commitment to civil service</h2>
<p>I believe that the individuals who said “no” to Nixon placed an emphasis on finding nonpartisan solutions in their work instead of slavishly following their party and its leader.</p>
<p>For example, former IRS Commissioner Johnnie Walters, the Republican who refused to audit Nixon’s “enemies,” <a href="https://www.nixonlibrary.gov/sites/default/files/forresearchers/find/histories/Johnnie_Walters.pdf">said in 2008</a>, “By doing the job right, we were protecting our tax system and the tax laws and the taxpayers, and not the Administration.” Like Shultz, Walters’ stand demonstrated that he was someone who was not bound by his political party.</p>
<p>Walters and other administration officials were committed to nonpartisan civil service. Nixon was a politician.</p>
<p>Nixon once said to his outgoing cabinet member John Connally: “I don’t believe that civil service is a good thing for the country.” </p>
<h2>Culture of loyalty</h2>
<p>The actions of Walters, Shultz, Richardson and Ruckelshaus, as well as the Republican congressional leaders who told Nixon he’d lost party support, show that there were GOP officials and leaders who were willing to challenge President Nixon. </p>
<p>Similar to today, each of these Republicans had to overcome the president’s culture of loyalty. Nixon <a href="https://www.ucpress.edu/blog/37721/august-9-1974-the-president-resigns/">frequently obsessed</a> over creating what he called a “new establishment” that would move the country in a more conservative direction. Its central component was loyalty to him. </p>
<p>During a meeting where he plotted out his second term, <a href="https://www.nixonlibrary.gov/white-house-tapes">Nixon said</a>: “I’d rather take a dumb loyalist than a bright neuter.”</p>
<p>Soon after the Saturday Night Massacre, Nixon wrote that <a href="https://books.google.com/books?id=fnVmDwAAQBAJ&lpg=PA114&ots=x68E0JPhcD&dq=%E2%80%9CEstablishment%20types%20like%20Richardson%20simply%20won%E2%80%99t%20stand%20with%20us%20when%20%5Bthe%5D%20chips%20are%20down.%E2%80%9D&pg=PA114#v=onepage&q=%E2%80%9CEstablishment%20types%20like%20Richardson%20simply%20won%E2%80%99t%20stand%20with%20us%20when%20%5Bthe%5D%20chips%20are%20down.%E2%80%9D&f=false">“establishment types like Richardson simply won’t stand with us when (the) chips are down.” </a></p>
<p>Today’s Republicans are led now by a president who also demands loyalty at every turn. And their actions stand in marked contrast to those who once were faced with similar challenges, and who chose country over loyalty to one man.</p><img src="https://counter.theconversation.com/content/100801/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Koncewicz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Republicans in Congress today are different than GOP figures who challenged President Nixon during Watergate. GOP leaders now stand in contrast to those who once chose country over loyalty to one man.Michael Koncewicz, Assistant Research Scholar, New York UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1019732018-08-22T02:48:52Z2018-08-22T02:48:52ZWith Cohen and Manafort both guilty, the pressure on Trump is rising<figure><img src="https://images.theconversation.com/files/233017/original/file-20180822-149493-1242pry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protestor outside the Virginia courtroom where Paul Manafort was convicted of fraud on Tuesday.</span> <span class="attribution"><span class="source">Michael Reynolds/EPA</span></span></figcaption></figure><p>The <a href="https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=span-ab-top-region&region=top-news&WT.nav=top-news">guilty pleas</a> by Michael Cohen, Donald Trump’s former lawyer and fixer, and <a href="https://www.nytimes.com/2018/08/21/us/politics/paul-manafort-trial-verdict.html">conviction</a> of Paul Manafort, Trump’s former campaign manager, this week no doubt deepen the US president’s legal problems.</p>
<p>Occurring nearly simultaneously in separate courtrooms, the developments were the most dramatic yet in the <a href="https://theconversation.com/explainer-what-is-a-special-counsel-and-what-will-he-investigate-in-the-trump-administration-77952">ongoing investigation</a> into Russian interference in the 2016 US elections.</p>
<p>But do they pose an existential risk to Trump’s presidency? This obviously depends how special counsel Robert Mueller’s investigation continues to develop in Washington. But in terms of how damaging Tuesday’s events are for Trump, there are competing schools of thought. </p>
<h2>Things are looking bad for Trump</h2>
<p>The Manafort verdict was the first time Mueller’s investigation has been tested in court. Trump has spent months deriding this “witch-hunt” against him, but even witches get a trial and Manafort largely, though not completely, lost his. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1030940529037651968"}"></div></p>
<p>Manafort was convicted of <a href="https://www.wsj.com/articles/paul-manafort-jury-trial-verdict-day4-1534861860">eight of the 18 charges</a> he faced relating to tax and bank fraud with his personal finances. Manafort was Trump’s campaign manager in 2016, though his crimes largely predate that three-month tenure. While Manafort’s convictions are not directly related to Mueller’s probe into Russian interference in the 2016 elections, the impression the Trump campaign was staffed by white-collar criminals is now much stronger.</p>
<p>Manafort <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/08/19/paul-manaforts-complicated-ties-to-ukraine-explained/?utm_term=.948ee997072f">was also in the pay</a> of a Russian-backed leader in Ukraine, former President Viktor Yanukovych. When Yanukovych was <a href="https://www.washingtonpost.com/world/europe/ukraines-yanukovych-missing-as-protesters-take-control-of-presidential-residence-in-kiev/2014/02/22/802f7c6c-9bd2-11e3-ad71-e03637a299c0_story.html?utm_term=.b96f4a248d02">ousted from office</a> in 2014, that source of income dried up, forcing Manafort to find new and nefarious ways to support his lavish lifestyle. </p>
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Read more:
<a href="https://theconversation.com/q-a-why-is-paul-manafort-on-trial-and-what-does-it-mean-for-donald-trump-100399">Q+A: Why is Paul Manafort on trial and what does it mean for Donald Trump?</a>
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<p>The problem for Trump is the possible nexus between himself, Manafort and Putin that Manafort’s guilty verdicts could expose. That will likely be tested when the former campaign chair <a href="https://edition.cnn.com/2018/08/16/app-politics-section/mueller-manafort-evidence-next-trial/index.html">goes on trial in Washington</a> next month for his alleged crimes linked to his Ukraine consultancy.</p>
<p>Cohen’s plea bargain also makes a possible charge against Trump more stickable. Importantly, Cohen has gone further than anyone else in <a href="https://www.newyorker.com/news/current/jon-ossoff-on-how-to-talk-about-special-elections-and-the-ohio-twelfth">directly implicating</a> Trump as a co-conspirator in some of his actions. If Trump did authorise his former personal lawyer to <a href="https://www.bbc.com/news/world-us-canada-45265546">pay off women</a> with whom he had had extramarital affairs and told him to do so in order not to derail his 2016 presidential campaign, he may be guilty of campaign finance violations, at the very least.</p>
<p>Together, the legal travails of Manafort and Cohen bring the Mueller investigation into the White House. It has so far just been banging on the windows. Trump has been able to skirt the malfeasance of his former advisors through the court of public opinion. The problem is that the United States is a government of laws and of actual courts that <a href="https://twitter.com/realDonaldTrump">bully-pulpit tweets</a> cannot indefinitely protect him from.</p>
<h2>This won’t hurt Trump that much (at least, not yet)</h2>
<p>Trump has earned a sort of immunity by profusion. He commits so many <a href="https://www.theguardian.com/us-news/2018/jul/19/very-aggressive-trump-suggests-montenegro-could-cause-world-war-three">faux pas</a>, is <a href="https://abcnews.go.com/Politics/trump-blame-sides-charlottesville-now-anniversary-puts-spot/story?id=57141612">politically incorrect</a> so often, skirts potential legal issues so frequently, that no one transgression ever seems to stick. </p>
<p>Former President Richard Nixon committed one clear crime and <a href="https://www.telegraph.co.uk/news/0/watergate-nixon-impeached/">paid the price</a>. But what is Trump actually guilty of? Having dubious business and political associates? What president hasn’t had those? </p>
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Read more:
<a href="https://theconversation.com/a-friendly-reminder-impeaching-donald-trump-will-not-remove-him-from-office-94369">A friendly reminder: impeaching Donald Trump will not remove him from office</a>
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<p>Sexual relations with women other than his wife? <a href="https://en.wikipedia.org/wiki/Bill_Clinton_sexual_misconduct_allegations">Bill Clinton did as much</a> and is regarded as one of the most successful presidents of recent years.</p>
<p>Trump’s supporters also don’t care about any of this. Many see the trials of Manafort and Cohen as the elite going after Trumps’s associates because they can’t land a glove on their hero. </p>
<p>This popular sentiment is a vital currency for the Trump administration. He has thus far <a href="https://www.washingtonpost.com/news/politics/wp/2018/07/24/why-is-trump-so-much-more-popular-with-republicans-than-past-presidents/?utm_term=.ba9392100d8e">remained enormously popular</a> with his base, despite the gathering legal clouds. He is particularly adept at exploiting his victim-in-chief status. The most powerful man in the world is protected in the court of public opinion by his victimhood – a remarkable state of affairs.</p>
<p>And another important point: there is still <a href="https://apnews.com/ea3e3e6b24034a88b3f397e77028c73e/Q&A:-What-Cohen's-plea,-Manafort's-verdict-mean-for-Trump">no clear crime</a> that would make Trump impeachable. There is still not enough in the Manafort verdict and Cohen plea bargain to force Republicans to desert the man on whom their <a href="https://www.reuters.com/article/us-usa-election-republicans/its-trumps-party-now-and-us-republicans-could-pay-in-november-idUSKBN1J937X">fortunes</a> in the November midterm elections (and beyond) depend.</p>
<p>American politics is about to become even more partisan and personal because the legal stakes have just gotten higher. Are they high enough to end the Trump presidency, though? Probably not. There is some way to go and many more days in court before we can answer that with any confidence.</p><img src="https://counter.theconversation.com/content/101973/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy J. Lynch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The legal travails of Paul Manafort and Michael Cohen bring the Mueller investigation into the White House.Timothy J. Lynch, Associate Professor in American Politics, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1003992018-07-25T14:24:39Z2018-07-25T14:24:39ZQ+A: Why is Paul Manafort on trial and what does it mean for Donald Trump?<p>Paul Manafort, one time head of the campaign to elect Donald Trump as president, is about to stand <a href="https://www.washingtonpost.com/local/public-safety/special-counsel-offers-immunity-to-five-witnesses-for-paul-manafort-trial/2018/07/17/c52f3774-89f5-11e8-85ae-511bc1146b0b_story.html?noredirect=on&utm_term=.ec9d08c21afd">trial</a> on charges arising from the investigation being led by Robert Mueller into potential Russian meddling in US politics. The outcome could be highly significant for the president.</p>
<h2>Who is Paul Manafort?</h2>
<p>After becoming involved with the Trump campaign in spring 2016, political operative Paul Manafort took over from Corey Lewandowski as campaign manager in <a href="https://mobile-reuters-com.cdn.ampproject.org/v/s/mobile.reuters.com/article/amp/idUSKCN0Z61L5?amp_js_v=a2&amp_gsa=1&usqp=mq331AQCCAE%253D#referrer=https://www.google.com&amp_tf=From%2520%25251%2524s&ampshare=https%253A%252F%252Fwww.reuters.com%252Farticle%252Fus-usa-election%252Ftrump-parts-ways-with-campaign-manager-lewandowski-nyt-idUSKCN0Z61L5">June</a> the same year. Formerly a Washington insider (his lobbying firm <a href="http://content.time.com/time/subscriber/article/0,33009,960803-1,00.html">Black, Manafort and Stone</a> was a mainstay of 1980s US politics and was labelled the “ultimate supermarket of influence peddling” by Time Magazine), Manafort’s presence partially undermined Trump’s claims that he was the insurgent candidate.</p>
<p>He was replaced by Steve <a href="https://amp-usatoday-com.cdn.ampproject.org/v/s/amp.usatoday.com/amp/88887552?amp_js_v=a2&amp_gsa=1&usqp=mq331AQCCAE%253D#referrer=https://www.google.com&amp_tf=From%2520%25251%2524s&ampshare=https%253A%252F%252Fwww.usatoday.com%252Fstory%252Fnews%252Fpolitics%252Fonpolitics%252F2016%252F08%252F17%252Ftrump-campaign-stephen-bannon-kellyanne-conway%252F88887552%252F">Bannon</a> in August 2016 after questions arose about his prior work in <a href="https://edition.cnn.com/2016/08/15/politics/clinton-slams-trump-over-manafort-report/index.html">Ukraine</a>. Trump had also begun to slide in the polls against <a href="https://amp-cnn-com.cdn.ampproject.org/v/s/amp.cnn.com/cnn/2016/08/17/politics/trump-campaign-overhaul/index.html?amp_js_v=a2&amp_gsa=1&usqp=mq331AQCCAE%253D#referrer=https://www.google.com&amp_tf=From%2520%25251%2524s&ampshare=https%253A%252F%252Fwww.cnn.com%252F2016%252F08%252F17%252Fpolitics%252Ftrump-campaign-overhaul%252Findex.html">Hillary Clinton</a>.</p>
<h2>What are the charges against him?</h2>
<p>Manafort, currently held in custody, is due to stand trial twice in the next few months on charges arising from the investigation of special counsel <a href="https://theconversation.com/what-the-charges-against-manafort-gates-and-papadopoulos-could-mean-for-trump-86593">Robert Mueller</a>.</p>
<p>The first trial in Virginia relates to charges of tax evasion and bank fraud. The second is a federal trial due to take place in Washington DC in September. This relates to charges that Manafort <a href="https://edition.cnn.com/2018/03/08/politics/manafort-trial/index.html">failed</a> to <a href="https://www.justice.gov/sco/page/file/1070326/download">register</a> as a foreign agent when conducting political work in the Ukraine and that he laundered <a href="https://edition.cnn.com/2018/06/28/politics/mueller-search-warrants-manafort/index.html">millions</a> of dollars. He did ultimately register his work, but not until <a href="https://www.politico.eu/article/paul-manafort-registers-as-foreign-agent/">June</a> 2017. </p>
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<p>Manafort was originally <a href="https://www.justice.gov/file/1007271/download">indicted</a> in October 2017, along with Richard Gates, his former assistant. Gates has since signed a <a href="https://www.justice.gov/file/1038801/download">plea</a> deal with Mueller. In doing so, Gates <a href="https://www.justice.gov/file/1038806/download">pleaded guilty</a> to conspiracy, deliberately failing to register foreign political work and making false statements to the FBI at Mueller’s office about a 2013 meeting involving Manafort, a member of congress, and a lobbying firm by erroneously claiming that Ukraine was not discussed. Manafort, however, has consistently <a href="https://www-independent-co-uk.cdn.ampproject.org/v/s/www.independent.co.uk/news/world/americas/us-politics/paul-manafort-charges-robert-mueller-ukraine-lawsuit-judge-amy-berman-jackson-a8353436.html?amp_js_v=a2&amp_gsa=1&amp&usqp=mq331AQCCAE%253D#referrer=https://www.google.com&amp_tf=From%2520%25251%2524s&ampshare=https%253A%252F%252Fwww.independent.co.uk%252Fnews%252Fworld%252Famericas%252Fus-politics%252Fpaul-manafort-charges-robert-mueller-ukraine-lawsuit-judge-amy-berman-jackson-a8353436.html">denied</a> the charges against him.</p>
<p>Originally granted bail, Manafort was taken into <a href="https://amp-timeinc-net.cdn.ampproject.org/v/amp.timeinc.net/time/5313625/paul-manafort-jail-witness-tampering?amp_js_v=a2&amp_gsa=1&usqp=mq331AQCCAE%253D#referrer=https://www.google.com&amp_tf=From%2520%25251%2524s">custody</a> in <a href="https://www.nytimes.com/2018/06/15/us/politics/manafort-bail-revoked-jail.html">June</a> for violating the terms of his bail by contacting trial witnesses.</p>
<h2>How does all this relate to Trump?</h2>
<p>Besides the fact that the charges against Manafort arose from a <a href="https://www.justice.gov/opa/press-release/file/967231/download">special counsel</a> investigating the work of the Trump campaign, it seems likely that the trials themselves will provide testimony and evidence that could feed back into the Mueller investigation. Such testimony and evidence could, for example, relate to what Manafort and others knew about any inappropriate behaviour by members of the Trump campaign and the alleged Russian attempt to influence the 2016 presidential election.</p>
<p>Moreover, there is the possibility (although the time available for this is obviously receding as the trials draw closer) that Manafort could strike a plea deal, which could be detrimental to Trump and those around him. Potentially crucial in this regard is what occurred during a meeting attended by Manafort, a Russian lawyer with alleged links to the Kremlin, Jared Kushner, Trump’s son-in-law, and Trump’s son Donald Trump Jr., and others in Trump Tower on June 9, 2016. </p>
<p>Manafort is said to have attended the meeting after being forwarded an email chain by Trump Jr. that contained an offer, whether officially sanctioned or not, of “documents and information that would incriminate” Clinton from a Russian official. Responding to the offer, Trump Jr. said “if it’s what you say it is I love it”. Manafort has been quiet about the meeting, but <a href="https://www.vox.com/2018/3/14/17119550/russia-mueller-investigation-trump-tower-collusion">Trump Jr.</a> has continually denied the meeting was significant. <a href="https://edition.cnn.com/2017/07/24/politics/jared-kushner-statement-russia-2016-election/index.html">Kushner</a>, and <a href="https://www.vox.com/2018/2/26/16964328/trump-tower-meeting-mueller-russia">others</a> have said the meeting was focused on the issue of US citizens adopting Russian children. </p>
<p>Regardless of the tenor of the meeting itself, the emails that led to it seem to show Trump Jr.’s willingness to take possession of damaging material on Clinton from the Russian state. As such, any awareness Manafort may have of the meeting’s broader context is likely to interest Mueller, who has shown <a href="https://www.nytimes.com/2018/01/31/us/politics/trump-russia-hope-hicks-mueller.html">curiosity</a> about the exchange.</p>
<h2>Why does it matter?</h2>
<p>Most obviously, Manafort’s trials are the first to arise from Mueller’s investigation. That means at least parts of the process set in motion by the firing of FBI head <a href="https://www.theguardian.com/us-news/2018/apr/18/james-comey-not-fired-over-russia-investigation-donald-trump">James Comey</a> in May 2017 are starting to move to some kind of end game.</p>
<p>Regardless of whether Manafort strikes a plea deal, there is always the chance that Trump could issue a presidential <a href="https://www.vox.com/2017/8/29/16211784/trump-pardons-manafort-flynn-mueller">pardon</a>. This could solve an immediate problem for Trump and Manafort. However, there would surely be further questions about the rationale for a pardon and it could provide significant ammunition for Trump’s opponents to deploy in the court of public opinion. The president may also decide to <a href="https://www.theguardian.com/us-news/2018/apr/11/trump-mueller-firing-latest-twitter-russia-tirade">fire Mueller</a> himself, triggering a new crisis.</p>
<p>Finally, the timing of the trials is significant. One of the most important mid-term elections in recent times is just months away, meaning that any damaging information that comes could directly impact how votes are cast in November. Given that the Democrats are desperately trying to retake the House of Representatives, they are unlikely to miss any opportunity to exploit the trials for their own advantage in their attempt to dent Trump’s power.</p>
<p>Similarly, if Manafort is successful in defending himself and the trials lead to little new evidence coming to light, Trump and his supporters are likely to use it to their own advantage. This would feed into their narrative that the Russia story is overplayed and that nothing untoward occurred during the 2016 campaign. That narrative may enable them to defend their congressional majorities and entrench Republican power.</p><img src="https://counter.theconversation.com/content/100399/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s former campaign manager is on trial for tax charges but his travails could cause problems for the White House.Peter Finn, Lecturer in Politics, Kingston UniversityRobert Ledger, Visiting Researcher, Goethe University Frankfurt am MainLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1000832018-07-17T00:14:17Z2018-07-17T00:14:17ZThe Trump-Putin summit: Hired hand at work?<figure><img src="https://images.theconversation.com/files/227905/original/file-20180716-44097-p83fil.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. President Donald Trump speaks with Russian President Vladimir Putin during a news conference after their meeting at the Presidential Palace in Helsinki, Finland on July 16, 2018. </span> <span class="attribution"><span class="source">(AP Photo/Pablo Martinez Monsivais)</span></span></figcaption></figure><p>There were at least six topics that Donald Trump could have forcefully raised with Russia’s Vladimir Putin at Monday’s so-called summit in Helsinki, Finland. Any other president would have.</p>
<p><a href="https://www.cnbc.com/2018/07/16/putin-told-trump-russia-never-meddled-in-us-election.html">First was Russian meddling</a> in the 2016 presidential election.</p>
<p>Second was <a href="https://www.washingtonpost.com/news/worldviews/wp/2018/07/10/russia-stays-in-the-drivers-seat-in-syria/?utm_term=.d54f4c3d5166">Russia’s presence in Syria.</a></p>
<p>Third was the unlawful <a href="https://www.theatlantic.com/international/archive/2018/07/trump-putin-helsinki-ukraine/565235/">Russian annexation of Crimea.</a> </p>
<p>Fourth was Russia’s <a href="https://www.aljazeera.com/news/2018/01/ukraine-declares-russian-occupation-eastern-region-180118164950405.html">intrusion into eastern Ukraine.</a> </p>
<p>Fifth was Russia’s continued and ominous expressions of “concern” for Russian speakers in the Baltic states, <a href="https://www.reuters.com/article/us-baltics-russia/wary-of-divided-loyalties-a-baltic-state-reaches-out-to-its-russians-idUSKBN1630W2">particularly Latvia</a> and Estonia, that echo some of the rhetoric prior to Putin’s actions in Ukraine. </p>
<p>Sixth was Russia’s possible help to North Korea given Putin, after all, was reportedly <a href="https://qz.com/1304547/trump-stopping-war-games-with-south-korea-was-putins-idea/">the one who suggested Trump scrap joint U.S.-South Korea military exercises.</a></p>
<p>But it’s the first lost opportunity that was most astonishing. Trump didn’t criticize the Russians. Instead, he backed Putin’s laughable denials that Russia had meddled in American politics, <a href="https://www.wsj.com/articles/trump-blames-u-s-for-poor-relations-with-moscow-1531732220">sneering at U.S. intelligence and justice officials</a> who beg to differ.</p>
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<figcaption><span class="caption">The Trump-Putin news conference in Helsinki, Finland. RT.</span></figcaption>
</figure>
<p>Trump was given plenty of ammunition to confront Putin by the remarkable set of indictments issued by Special Counsel Robert Mueller last week in his ongoing investigation into Russian involvement in the 2016 presidential election.</p>
<p>The indictments contain such detailed information that they, in effect, sent a message to the Kremlin and its military intelligence branch, the GRU, all but declaring: “We know who you are and where you live.” </p>
<h2>‘A powerful tool’</h2>
<p>In the hands of a legitimate president, the indictments would have been a powerful tool at such a summit. Trump’s refusal to accept the information, and likely any additional information, from his own intelligence community in order to stand beside Putin and deny Russian involvement has sent the world into shock.</p>
<p>But not yours truly.</p>
<p>As an expert in U.S.-Russia relations who advised the Bill Clinton White House, I believe that what Trump did is perfectly understandable if you believe, as I have argued recently, that he’s a Russian stooge.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-trump-putins-stooge-99498">Is Trump Putin's 'stooge?'</a>
</strong>
</em>
</p>
<hr>
<p>Mounting evidence suggests <a href="https://www.nytimes.com/2018/05/16/us/politics/trump-tower-meeting-donald-trump-jr-senate-judiciary-documents.html">his campaign was helped by Russia.</a> Several key figures associated with him <a href="https://www.vox.com/policy-and-politics/2018/3/5/17080302/trump-russia-news-kushner-mueller">are being investigated</a>; <a href="https://nypost.com/2018/07/12/this-is-paul-manafort-behind-bars/">some of the accused are behind bars already</a>. Russia very likely has <a href="https://www.nationalreview.com/news/nancy-pelosi-trump-russia-press-conference-proves-blackmail/">compromising material</a> on him. Most importantly, Trump, a man of utter venality, <a href="https://www.vanityfair.com/news/2017/05/eric-trump-russia-investment-golf-course">has been supported by Russian money</a> for years — the only question is how much.</p>
<p>Trump is also a man whose brain apparently has a disconnect. </p>
<p>How else can one explain <a href="https://www.theguardian.com/us-news/2018/jul/13/trump-fake-news-fox-cnn-theresa-may">him giving a recorded interview that demeaned British Prime Minister Theresa May,</a> his hostess the following day, and then claiming it was fake news (a Russian concept)? This is not stupidity. This is brain malfunction.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/all-the-lessons-donald-trump-has-taught-us-85311">All the lessons Donald Trump has taught us</a>
</strong>
</em>
</p>
<hr>
<p>So what could one have reasonably expected from Trump? After all, he sought a one-on-one with Putin, probably to seek approval for stooge duties well done, and more money — perhaps even a <a href="https://www.cnn.com/2017/09/08/politics/document-trump-tower-moscow/index.html">Trump Tower Moscow!</a> </p>
<p>His interpreter is to be debriefed, so we may learn the details. I would not be surprised if the Russians recorded the exchange and release it to embarrass Trump, just as they released the transcripts and footage of <a href="https://www.cnn.com/2017/05/17/politics/russia-us-trump-lavrov-intel/index.html">his meeting with high-ranking Russian officials</a> the day after he fired FBI director James Comey. </p>
<h2>Mixed emotions</h2>
<p>They clearly have conflicted feelings about their probable stooge, perhaps preferring to see him replaced with someone a little more stable and effective.</p>
<p>I also expect to hear more damage, more abject abasement on the other points that I listed. </p>
<p>I confess that while I am not shocked, I am surprised at the magnitude of the event. In a presidency marked by a near daily barrage of the ugly and incompetent, Monday’s summit may be one fiasco too far. </p>
<p>Even many of the <a href="https://www.usatoday.com/story/news/politics/2018/07/16/house-speaker-paul-ryan-contradicts-trump-says-russia-meddled-2016/789061002/">Republicans in Congress seem to sense that Trump has entered a realm</a> where they themselves wish not to go. The former CIA director John Brennan <a href="https://www.cnn.com/videos/politics/2018/07/16/john-brennan-tweet-putin-trump-cooper-ip-sot-vpx.cnn">has called Trump’s actions at this summit treasonous.</a> </p>
<p>Treason is defined as aiding the enemy. Will aiding the adversary suffice? I would say yes. It’s a fitting label for an atrocious act. No one, even anyone in his “base,” can deny that he is failing to live up to his oath of office.</p>
<p>What to do? </p>
<p>The cabinet <a href="http://time.com/5098402/could-the-25th-amendment-be-trumps-downfall/">can invoke the 25th amendment</a> and remove him by declaring him unfit for office — not a hard case to make. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1018738368753078273"}"></div></p>
<p>The Republicans in the House of Representatives could screw up their nerve and draw up articles of impeachment to pass on to the Senate for a trial. </p>
<p>We could all wait until November, hoping that the Russians will not corrupt that round of voting and pray that a Democratic Congress will do what the GOP should have done a year ago. </p>
<p>Perhaps the military will give Trump a parade and remove him. After all, extraordinary violations of norms call for extraordinary remedies.</p>
<p>Then again, when he fully absorbs the outcry, Trump will likely just utter two dismissive words: “Fake news.”</p><img src="https://counter.theconversation.com/content/100083/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Colarusso does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the hands of a legitimate president, the recent indictments against Russian nationals for interfering in the 2016 presidential election would have been a powerful tool at a summit. Not Donald Trump.John Colarusso, Professor of Languages and Linguistics and Anthropology, Department of Anthropology, McMaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/977572018-06-05T13:49:06Z2018-06-05T13:49:06ZTrump may believe in the rule of law, just not the one understood by most American lawyers<figure><img src="https://images.theconversation.com/files/221787/original/file-20180605-119853-in1rkp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">AP</span> </figcaption></figure><p>Donald Trump’s <a href="http://nymag.com/daily/intelligencer/2018/03/trump-attacks-mueller-personally-on-twitter.html">June 4 tweet</a> suggesting he could pardon himself in the event that Special Counsel Robert Mueller’s investigation brings charges <a href="http://thehill.com/homenews/house/336700-dem-rep-trump-administration-showing-incredible-disrespect-for-rule-of-law">drew outrage</a> among critics, part of mounting and long-standing concern about the president’s <a href="http://thehill.com/blogs/blog-briefing-room/news/333263-dan-rather-blasts-trumps-willful-disregard-for-the-rule-of-law">disrespect for “the rule of law.”</a></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1003616210922147841"}"></div></p>
<p>Many <a href="https://www.bostonglobe.com/news/nation/2017/05/10/warren-comey-firing-shows-trump-disregard-for-rule-law/DTKu5wXPfNPyVmAOMzFIEL/story.html">prominent lawmakers</a>, <a href="https://www.bloomberg.com/view/articles/2017-05-10/comey-s-firing-is-a-crisis-of-american-rule-of-law">law professors</a> and <a href="https://www.nytimes.com/2017/05/15/opinion/trumps-madness-invites-mutiny.html">journalists</a>, among others, see the administration <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/04/26/all-the-times-trump-personally-attacked-judges-and-why-his-tirades-are-worse-than-wrong/?utm_term=.ca88897a8b75">flouting</a> this cornerstone value of American legal politics.</p>
<p>But what is the rule of law? </p>
<p>As a lawyer and political scientist who <a href="https://mei.nus.edu.sg/index.php/web/publications_TMPL/insight-149-contested-meanings-of-the-rule-of-law-in-qatar-and-the-arab-gul">studies this question</a> in <a href="http://carnegieendowment.org/2005/09/11/legalism-sans-fronti-res-u.s.-rule-of-law-aid-in-arab-world-pub-17440">diverse Arab countries and elsewhere</a>, I can affirm that the answer is not obvious. The rule of law means a variety of things <a href="https://mei.nus.edu.sg/index.php/web/publications_TMPL/insight-158-debates-on-the-rule-of-law-and-why-they-matter">within and across countries</a>. And they are not always consistent. </p>
<p>This helps make sense of the fact that Trump and some of his supporters may actually endorse one version of the rule of law. If this is controversial in the U.S., because it’s because Trump’s version is more dominant in nondemocratic political systems.</p>
<h2>Meanings of the rule of law</h2>
<p>Like “democracy” or “equality,” the rule of law is a popular ideal, but not always a clear one. For this reason, United Nations officials have tried <a href="https://www.un.org/ruleoflaw/what-is-the-rule-of-law/">to define it</a>. Prominent organizations like the World Bank have measured it through <a href="http://info.worldbank.org/governance/wgi/#home">basic indices</a> or <a href="https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2016">complex criteria</a>, such as civil rights, order and security, constraints on government power and absence of corruption.</p>
<p>Yet using an appealing phrase to describe different social phenomena can have real political consequences.</p>
<p>The “rule of law” has at least two broad definitions that exist in obvious tension. </p>
<p>One is a dominant dogma of American political history, as conveyed by Founding Father <a href="http://www.mass.gov/courts/court-info/sjc/edu-res-center/jn-adams/mass-constitution-1-gen.html#JohnAdamsandtheRuleofLaw">John Adams’ succinct phrase</a>: “a government of laws, not men.” The idea here is basic. Government leaders, like all citizens, should not be above the law, but rather bound by it. This means, for example, that a U.S. senator who extorts money is no more immune to being charged with this crime than an ordinary American.</p>
<p>A second possible meaning, in tension with the first one but present in democracies nonetheless, is that law ensures that people obey government.</p>
<h2>Law over leaders</h2>
<p>Let’s first consider the rule of law as John Adams and the U.S. Constitution’s framers defined it.</p>
<p>The U.S. Constitution and courts’ mandate to review specific laws defines the rule of law as a value and set of procedures that provide legal protection to all Americans. The framers of the Constitution stressed in <a href="http://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law">Federalist 78</a> the need for judges with autonomy from politics who could defend fundamental citizen rights. <a href="https://plato.stanford.edu/entries/rule-of-law/">Equality under the law</a> was popularized as a foundation of the rule of law in the wider English-speaking world by the 19th century.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=349&fit=crop&dpr=1 600w, https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=349&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=349&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=438&fit=crop&dpr=1 754w, https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=438&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/173478/original/file-20170612-10208-261yyy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=438&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A carving reads ‘Equal Justice Under Law’ above the main portico of the Supreme Court building.</span>
<span class="attribution"><span class="source">AP Photo/Carolyn Kaster</span></span>
</figcaption>
</figure>
<p>This has not meant that all Americans, in fact, <a href="https://learning.blogs.nytimes.com/2016/01/06/equality-under-the-law-investigating-race-and-the-justice-system/">enjoy equal legal resources</a>. Nor has it prevented powerful individuals or groups from using laws to their advantage. Nonetheless, institutions that enforce the idea that legal rules and procedures bind everyone, including leaders, are central to the U.S. and other countries. The expectation that rules will be applied to everyone also underpins <a href="http://prospect.org/article/america%E2%80%99s-interest-global-rule-law">contemporary international law</a>.</p>
<p>The rule of law, understood as laws over leaders, takes on added significance in the U.S. Here, a comparatively <a href="https://www.clements.com/sites/default/files/resources/The-Most-Litigious-Countries-in-the-World.pdf">large proportion of people become lawyers</a>. In turn, <a href="http://www.abajournal.com/news/article/lawyers_no_longer_dominate_congress_is_commercialization_of_profession_to_b">many lawyers become bureaucrats and politicians</a>. American leaders with legal training are educated to focus on specific rules, procedures and a close reading of legal texts. </p>
<p>Because of this, many government officials and members of the private and public-interest law firms who rotate in and out of government care about details of legal rules, procedures and transparency. A leader like Trump, whose tweets denigrate the neutrality of American judges, who <a href="http://www.cnn.com/2017/04/26/politics/trump-taxes-reform/">refuses to submit to the same expectations</a> of his peers or other citizens, <a href="https://www.washingtonpost.com/news/powerpost/wp/2017/05/09/comey-firing-reaction-from-members-of-congress-on-fbi-directors-dismissal/">who appears to interfere with an important legal inquiry</a>, and who argues that he has an <a href="https://www.cnbc.com/2018/06/04/trump-i-have-the-absolute-right-to-pardon-myself.html">absolute right to pardon himself</a>, <a href="http://billmoyers.com/story/trumps-lawyers-rule-law/">raises the hackles of other lawyers</a> and politicians. </p>
<p>Many Americans who are trained in the importance of the autonomy of laws will mistrust a leader who seems not to respect such autonomy. </p>
<p>Thus, it was not surprising that as soon as Trump became president, <a href="http://www.newsweek.com/trump-travel-immigration-ban-muslims-supreme-court-san-francisco-9th-circuit-555203">lawyers</a> <a href="https://www.forbes.com/sites/markcohen1/2017/01/31/with-u-s-democracy-in-crisis-its-suddenly-thank-god-for-lawyers/#54f3c4cf18f0">mobilized against</a> an executive attitude that <a href="https://www.brennancenter.org/blog/does-trump-administration-believe-rule-law">demeans their sense of the rule of law</a>. As Trump and his legal team make increasingly <a href="https://www.nytimes.com/interactive/2018/06/02/us/politics/trump-legal-documents.html">broad claims about executive power</a>, <a href="https://www.lawfareblog.com/pardons-obstruction-justice-and-rule-law-demagogic-presidency">lawyers continue to object</a>.</p>
<h2>Law and order</h2>
<p>Trump and some supporters appear to embrace a different understanding of the rule of law. The president has in fact <a href="http://www.theblaze.com/news/2017/01/25/trump-we-are-going-to-restore-the-rule-of-law/">stated his dedication</a> to the rule of law. <a href="http://www.foxnews.com/opinion/2017/04/29/rule-law-in-trumps-first-100-days.html">Some argue</a> that his leadership on certain issues, such as <a href="http://www.washingtontimes.com/news/2017/apr/20/first-100-days-trump-ushers-new-immigration-enforc/">enforcing immigration law</a>, has confirmed this commitment. This is not merely a case of alternative media. It underscores the importance of multiple meanings for the rule of law.</p>
<p>Trump seems to view the rule of law as deference to political authority and efficient <a href="https://www.usatoday.com/story/news/politics/elections/2016/11/09/donald-trump-criminal-justice/93550162/">law enforcement</a>. This includes institutions that execute laws, which might be summarized as “cops, courts and clinks” (jails).</p>
<p>Part of candidate Trump’s <a href="http://www.ocregister.com/2016/11/22/anti-illegal-immigration-advocates-thrilled-with-trumps-win/">appeal</a> was his repeated charge that people in the U.S. who broke the law, particularly undocumented immigrants, were inadequately policed. Since taking office, he has stressed <a href="http://www.independent.co.uk/news/world/americas/donald-trump-sign-executive-order-police-more-authority-murder-shooting-us-president-jeff-sessions-a7572001.html">enhancing police power</a> and <a href="http://www.foxnews.com/politics/2017/04/28/trump-proclaims-may-1-as-loyalty-day.html">loyalty</a> to <a href="https://www.theatlantic.com/politics/archive/2017/05/letat-cest-trump/526431/">authority, especially his own</a>. </p>
<p>This is hardly a fringe meaning of the rule of law. Efficient enforcement and state order are critical components of a legal system that also embraces citizens’ rights and protections. Yet these two key facets of the rule of law don’t always sit well together. </p>
<p>Strong policing can accompany denial of equal protection to suspected criminals, patterns of <a href="https://www.theatlantic.com/politics/archive/2015/04/the-brutality-of-police-culture-in-baltimore/391158/">brutality</a> and <a href="https://www.nytimes.com/2016/04/14/us/chicago-police-dept-plagued-by-systemic-racism-task-force-finds.html">racism</a>. Leaders’ natural interest in strong and efficient law enforcement and citizen loyalty can override their legal accountability.</p>
<p>Different political systems strike different balances with this tension. This helps explain Trump’s fondness for claiming presidential immunity from <a href="https://www.vox.com/policy-and-politics/2017/5/17/15654158/trump-prosecuted-constitution-impeachment-prosecutor">most criminal prosecution</a> and <a href="https://www.washingtonpost.com/news/fact-checker/wp/2016/11/23/trumps-claim-that-the-president-cant-have-a-conflict-of-interest/?utm_term=.5a52a9d27ff4">some conflict-of-interest standards</a>. This, and his <a href="http://www.rollingstone.com/politics/features/trumps-anti-democratic-war-on-facts-and-free-speech-w462960">impatience with protest and criticism against him</a>, appear to show that the president cares about law as a tool to bolster his authority, rather than to enhance ordinary Americans’ rights. </p>
<p>The world is certainly <a href="https://qz.com/643497/we-are-witnessing-the-rise-of-global-authoritarianism-on-a-chilling-scale/">seeing a trend</a> toward leaders like Egypt’s President Sisi and Turkey’s President Erdogan, who wish to control law, rather than subordinate themselves to it.</p>
<p>Trump, and Americans who consider him a strong leader, likely believe in the rule of law, as they understand it. The controversy among many lawyers is that the level to which the new administration elevates efficiency, enforcement and executive privilege <a href="https://www.nytimes.com/2018/06/03/opinion/mueller-trump-executive-power.html">tramples their dominant sense</a> of the rule of law as government by laws, not people.</p>
<p>Growing conflicts between the Trump administration and a range of lawyers, judges and activists stem, in part, from each side invoking real, contestable concepts of the rule of law.</p>
<p>Naturally, even if Trump and some supporters share a genuine belief in the rule of law as enforcement and order, this does not justify acts he may have taken that violate American laws. It should nevertheless serve as a reminder that using complex concepts like the rule of law without context or nuance may make it much harder to understand genuine political disagreements.</p>
<p>Indeed, the world may be witnessing less an outright rejection of democracy and more a subtle move by many elected leaders to <a href="https://www.ft.com/content/c5e7e8f8-22c4-11e7-8691-d5f7e0cd0a16?mhq5j=e1">concentrate power in authoritarian ways</a>. With Trump’s <a href="http://www.vanityfair.com/news/2017/05/donald-trump-praising-authoritarians-rodrigo-duterte">appreciation of leaders with strong power</a>, and the <a href="https://www.washingtonpost.com/opinions/the-constitutional-crisis-is-here/2018/05/21/deaf19b2-5d27-11e8-a4a4-c070ef53f315_story.html?utm_term=.9697aa592fc3">possibility of a constitutional crisis</a> over the Mueller investigation, it is particularly important to clarify whether Trump’s idea of the rule of law matches up with most Americans’ sense of this important, but slippery, term.</p><img src="https://counter.theconversation.com/content/97757/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Mednicoff does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The rule of law can take on different meanings depending whom you ask and where you are – but in the US it pretty much means one thing.David Mednicoff, Chair, Department of Judaic and Near Eastern Studies, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.