May 2nd 2019, 10:20, by Brian Bennett and Tessa Berenson
As President Donald Trump walked out of the South Portico of the White House on April 26, a reporter asked him if he had ordered the firing of special counsel Robert Mueller nearly two years ago. In the question, Trump apparently heard an echo of President Richard Nixon’s 1973 firing of Watergate special prosecutor Archibald Cox, which came to be known as the Saturday Night Massacre and helped pave the way for Nixon’s eventual resignation. “I’m a student of history,” Trump said over the thumping blades of the waiting Marine One helicopter. “I see what you get when you fire people, and it’s not good.”
If Trump is a student of history, though, Mueller’s recently released 448-page final report suggests the President has learned a different lesson from that of his predecessors. Rather than defer to the constraints that Nixon’s downfall imposed on the presidency, Trump has sought to dismantle them. The special counsel found examples of Trump using the power of the presidency to advance his personal political goals and push for criminal inquiries against his enemies. Witnesses detailed nearly a dozen episodes in which Trump tried to limit the scope of the Mueller investigation. And despite Trump’s April 26 denial, his former White House counsel Don McGahn testified that Trump had ordered him to fire Mueller.
Now Trump is using the Mueller report itself to expand the power of the chief executive. Claiming that Mueller exonerated him, Trump and his lawyers are refusing to cooperate with most congressional investigations, even though the special counsel seemed to call for them. More ambitiously, Trump is using the report as a weapon against his 2020 political opponents, raising money off the top-line findings and saying he was the target of an illegal coup, in the hope that the inaccurate claim will inflame his voters and drive them to the ballot box.
Some of these moves are intentional, the result of a strategy developed and implemented by the President’s lawyers. Some are instinctive–Trump’s zero-sum worldview drives him to amass power. Some, the report shows, happen almost by chance. But whatever the reasons, Trump’s effort to politicize the Mueller investigation may have worked. Despite its alarming revelations, polls suggest the President’s support has not been dented by the special counsel’s report.
Trump’s Attorney General, William Barr, has played a critical role in shielding the President from the initial blow. Before the document was released to the public, Barr stated that Mueller’s investigation did not establish that Trump had obstructed justice. Mueller had qualms about Barr’s handling of the report, and asked Barr on March 27 to release fuller executive summaries from the document. Barr’s wording “did not fully capture the context, nature and substance of this Office’s work and conclusions,” Mueller wrote to the Attorney General. “There is now public confusion about critical aspects of the results of our investigation.”
Win McNamee—Getty ImagesAttorney General William Barr is sworn in to testify about the Mueller report before the Senate on May 1
Barr refused, letting his characterization stand for weeks, during which Trump inaccurately claimed “total exoneration,” before the public gained access to Mueller’s more nuanced findings. “It was my decision how and when to make it public, not Bob Mueller’s,” Barr told a Senate committee on May 1.
Some professional historians see a worrying picture emerging. “The Mueller report makes a very strong case that Donald Trump is guilty of obstruction of justice,” says Ken Hughes, an expert on Nixon and abuse of presidential power at the University of Virginia’s Miller Center. “That has been an impeachable offense in this country since Nixon’s time.” Which means the stakes in the coming days are much higher than just the fate of congressional investigations or even the 2020 election. They go directly to the balance of power between Congress and the White House, potentially taking us back to a more powerful, pre-Watergate presidency.
On its face, the Mueller report is disturbing. It details a massive Russian operation to interfere in the 2016 presidential election and multiple efforts by the Russians to influence the Trump campaign. Mueller did not establish that Trump or his associates knowingly aided the Russian effort, but his report paints a damning picture of the Trump camp’s openness to Russia’s advances. Worse, the report lays out a series of alarming, possibly obstructive actions Trump took to prevent investigators from finding out what happened in 2016.
Trump likely fired former FBI director James Comey because of the Russia investigation, then misrepresented why he fired him, Mueller found. Trump tried to pressure former Attorney General Jeff Sessions to limit the scope of Mueller’s inquiry, then tried to fire Sessions. The President ordered McGahn to fire Mueller; McGahn went so far as to pack up his office in preparation to quit rather than interfere with Mueller’s work. “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the special counsel wrote.
Mueller felt constrained in how he could respond to the evidence of Trump’s potential obstruction. Department of Justice protocol suggests a sitting President cannot be indicted, and Mueller took great care to explain in his report that he had decided to abide by that position. The best Mueller seemed to be able to muster was an argument that Congress could take up the case itself. “The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law,” the report says.
Trump worked hard to get ahead of any challenge Congress might pose by undermining the Mueller report even before it became public. The President set the bar low with his repeated assertions that there had been “no collusion” with Russia, and attacked the credibility of Mueller’s investigators. He refused to sit for an interview with Mueller’s lawyers, avoiding the risk of perjuring himself and making it harder for Mueller’s team to prove corrupt intent. And he misrepresented the investigation’s ultimate findings, loudly proclaiming the report had concluded there was “no obstruction.” So when Barr declared on April 18 that Mueller had found “no evidence” of “collusion” between Trump and Russia and cleared Trump of obstruction, the President claimed vindication.
A White House official dismisses Mueller’s evidence of obstruction as “thought crimes,” since Trump’s aides didn’t follow through with his orders and Mueller did not find any coordination with Russia in the first place. “In Watergate, there was actually a crime to obstruct,” the official says. White House staff view the report’s lengthy section on obstruction as a partisan “swipe” at the President, according to another official. Mueller’s team, these officials say, stepped out of bounds when it wrote nearly 200 pages on bad behavior by Trump without charging him with a crime.
Some Democrats cited the document as cause to launch impeachment proceedings. But at the moment, Congress looks no more likely than Mueller to level charges. Trump and his surrogates have taken a hard line with Congress over compliance with their expanding investigations. “We’re fighting all the subpoenas,” Trump said on April 24. In doing so, he is reviving a fight over presidential power from the Watergate era. In 1974, the Supreme Court ordered President Nixon to comply with a subpoena in a ruling against a near inviolable claim of Executive privilege. “We’ve never been back to that grand claim, until effectively now,” says John Q. Barrett, a law professor at St. John’s University.
Trump’s lawyers are open to a less absolute approach, White House officials say. And the President is keeping other options at the ready too. Trump’s personal lawyers spent months preparing a rebuttal to the report, then never released it. The President and his allies “do not need it yet,” says Trump’s lawyer Rudy Giuliani. For now, Giuliani says, the report’s charges can be “handled one at a time.” But they’re still prepared to release the rebuttal if they deem it necessary.
Congressional Republicans seem buoyed by signs that Trump is weathering Mueller’s findings. South Carolina Senator Lindsey Graham, who chairs the Senate Judiciary Committee, said the only investigations he will entertain would look into Justice Department overreach in investigating Trump. The Senate GOP is ready to offset any moves by the Democratic-led House to go after Trump.
The defense of the President is not just limited to vocal allies. North Carolina Senator Thom Tillis, a vulnerable Republican facing re-election next year, had frequently introduced bipartisan legislation to protect Mueller during his probe. Now he says he fully supports the President’s pushing back against congressional Democrats. “They’re trying to reprosecute something that I helped defend for two years,” Tillis says. Even Republican Senator Mitt Romney, who criticized Trump’s handling of the Mueller investigation after reading the report, is not pressing for investigations in the Senate or impeachment proceedings. “I think it’s a political matter. And I think the Democrats would be wise to focus on the election,” Romney told reporters on April 29.
As the GOP circles the wagons, the Democrats are frustrated by their opponents and divided on how to move forward. Speaker Nancy Pelosi says she’s hesitant to proceed with impeachment unless there’s some measure of bipartisan support. “The President of the United States engaged in behavior that was unethical, unscrupulous and beneath the dignity of the office that he holds,” Pelosi said at the TIME 100 Summit on April 23. “What’s surprising about it is that the Republicans seem to have an unlimited appetite for that kind of behavior. Instead of being ashamed of what that report said, they gave their blessing once again to the President.”
If Congress doesn’t act, there remains another check on the President’s power: the voters. Unlike the Watergate and Iran-contra scandals, which unfolded in the second terms of Presidents Nixon and Ronald Reagan, the Mueller probe concluded ahead of Trump’s attempt to win re-election. Which means the American electorate will have the chance to register their opinion on Trump’s behavior at the polls in 2020. It’s not clear, however, that the Mueller report has soured the public’s view of the President. In a Washington Post/ABC News poll released April 26, 58% of respondents said the report doesn’t change their opinion of the Trump Administration and 53% think the report “did not clear Trump of all wrongdoing.” Some 36% said the report made them more likely to oppose the President in 2020. Mueller spent two years on his investigation and wrote more than 400 pages on his findings. But the ultimate arbiters of Trump’s behavior–the voters–appear largely unmoved by his conclusions.
Which means Mueller’s report may end up helping Trump expand his power rather than curtailing it. The President and his top campaign staff say they plan to use the Mueller report as a cudgel against Democrats in 2020. The report “creates a massive credibility problem for the left, one that is fair to say we will be using,” says Trump’s 2020 national press secretary Kayleigh McEnany, sitting high above the Potomac River in the campaign’s spacious Virginia headquarters. The Trump campaign sent out a fundraising text when the Mueller report came out, raising more than $1 million in one day. “Sorry Trump haters. The biggest waste of money witch hunt in history is finally over,” the website announcing the fundraising haul reads. “The attacks and lies will keep coming heading into 2020. That’s why we need to fight back bigger and stronger than ever before.”
Trump isn’t the first President to look for ways to expand Executive power. After the Sept. 11, 2001, attacks, George W. Bush clawed back some of the wartime authorities Congress had stripped from the presidency following the politically motivated Vietnam War escalations. Barack Obama, facing an entrenched Republican Congress, embraced the use of regulations and Executive Orders to expand health care and immigration protections.
But Trump’s moves are the most self-serving since Nixon, says Timothy Naftali, a former director of the Richard Nixon Presidential Library and Museum. And the 45th President has learned a noteworthy lesson from the 37th. Nixon famously worked the levers of power, pushing for IRS audits, wiretapping and cutting off federal funds to punish political enemies. But for the most part, he made these moves in secret. Trump is brashly pulling those levers in public. He has called for the investigation of career FBI agents, demanded that the Federal Reserve chairman keep interest rates low and promised to release people caught entering the U.S. illegally into cities he sees as too lax in their treatment of immigrants. Where the revelation of Nixon’s behavior hurt him, Trump’s open expansion of power seems to help.
“Our culture has forgotten why these norms were established in the first place,” says Naftali. “We will see if Donald Trump will be penalized in 2020 for trying to restore some of the Nixonian spirit to the Executive Branch.”
Trump is willing to have that fight. On April 25, he railed against the Mueller investigation to Fox News host Sean Hannity. “This was an overthrow, and it’s a disgraceful thing,” the President said. “It’s far bigger than Watergate. I think it’s possibly the biggest scandal in political history in this country.” For Trump’s critics, however, the President is not the victim of a Nixon-era abuse of power. He’s the man resurrecting the tradition.
–With reporting by ALANA ABRAMSON and PHILIP ELLIOTT/WASHINGTON
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