Barely Plausible

90

Plainly, William Barr lobbied to become attorney general for the second time in his career. I can think of four at-least-barely-plausible hypotheses about why Barr might have sought his current position:

  1. the customary mixture of resume enhancement, personal ambition, public service, and intellectual interest in the issues within the purview of the office
  2. because he had drunk the Trump Kool-Aid, had joined the Cult of Trump, and wanted, above all else, to be Trump’s toady
  3. because he wanted to protect the interests of the monied establishment by keeping Trump in office, by hook or by crook, and then getting him reelected in 2020, or
  4. because he wanted to protect the interests of the monied establishment by easing Trump from office—probably through a deal to get him to resign in exchange for immunity from criminal liability—and inaugurate the more pliable and predictable President Pence.

When he became attorney general, Barr was at the end of a long, prestigious, and highly lucrative career. He had no need to enhance his resume. His personal ambition had long since been satisfied. Hypothesis one is barely plausible but highly unlikely.

In the wake of the four-page Mueller report “summary,” many are leaping to hypothesis two. They may be right.

But Barr’s confirmation testimony was not what would expect from a Trump cultist. Nor, in my view, is the June 2018 Barr memo or the March 2019 Barr letter the work of a Trump cultist. Rather, each is the work of a very careful legal draftsman who seemed to seek the approval of a Trump cultists and highly superficial readers—such as Trump himself.

That disposes of hypothesis two. We are left to choose between three and four.

By the application of logic to the known facts, I’m still going with four.

In fact, I think it’s entirely possible that Barr wrote the four-page “summary” in a way that was intended to bring on a Trump “vindication” overreach that will backfire when the Mueller report is released.

That’s Machiavellian thinking.

Barr made a great deal of money in his career. And, to make that money, he did a whole heap ‘o Machiavellian thinking.

The Plot Thickens

plot thickens

The Postulated Plot

I have previously argued these interrelated points. First, William P. Barr did not come to Washington to fall on his sword for Donald Trump—or to occupy the same jail cell where Nixon’s attorney general severed 19 months.

I have also argued that, in the current situation, and given his economic and professional circumstances, William P. Barr likewise did not come to Washington to serve for a second time as attorney general, out of a mere abstract interest in doing good and serving justice.

I have argued that William P. Barr is a man with a plan; that that plan is, most probably, to get Donald Trump out of office with a Spiro Agnew style immunity agreement; and that this postulated plot was most probably organized at Barr’s law firm, Kirkland & Ellis.

The Postulated Plot Progresses

Today’s news is that William P. Barr has persuaded The Donald to nominate, as his deputy, to succeed Rod Rosenstein, one Jeffry Rosen, who is currently the Deputy Secretary of Transportation—serving, by the way, under the Transportation Secretary, Elaine Chao, wife of Mitch McConnell.

And what was Mr. Rosen doing prior to his service in the Transportation Department?

Mr. Rosen was senior partner at, you guessed it, Kirkland & Ellis.

The boys and girls at Kirland have a tendency to be too clever by half. But, even so, they are damn fine lawyers. And not about to have a prolonged stay in the hoosegaw for obstructing justice.

Watch this channel for further developments. I think The Donald is being thoroughly snookered and that his goose is about to be well and truly cooked.

 

Happy National Emergency Day

word meaning

Will the courts—and, in particular, the Supreme Court—uphold Trump’s purported use of his powers under the National Emergencies Act of 1976? Like many legal questions, the issue is, at one and the same time, both complex and simple. And, if you wish to gain a basic understanding of the relevant legal reasoning—as opposed to emoting and bloviating about it—then you need to grasp both the complexity and the simplicity of the matter.

Here, the complexities involve constitutional law, identification of all the relevant statutes, interpretation of the pertinent statutes (including a fair amount of case law), and a lot of theological reasoning about who would, and who would not, have “standing” to appear in court as a plaintiff to challenge Trump’s actions. For a quick summary, I recommend yesterday’s post from the Journal of the American Bar Association, Can Trump legally use emergency powers to build a border wall? Experts weigh in.

My sense is that the good folks at the ABA Journal have gone a little bit out of their way to find Trump-friendly legal experts to pontificate on all these legal complexities. But, if you actually want to understand a legal issue, then you need to begin by wrapping your mind around your adversary’s best arguments (or his least bad arguments, as the case may be).

Now for the fundamental, simple issues.

The Humpty Dumpty Rule of Statutory Interpretation

In 1976, Congress made a considered decision not to include language defining “emergency” in the National Emergencies Act. Trump appears to reason that Congress thus made him a presidential Humpty Dumpty, with the power to define the term any way he wants to define the term.

Trump did not go to law school. If he had done so, then he would have learned that if you want to know what a word in a statute means, then—absent a specific statutory definition—you look to the dictionary, and then you consider what the dictionary says in light of public policy. In other words, your legal analysis must be informed by an understanding of what problem Congress thought it was addressing when it enacted the statute.

Merriam-Webster says “emergency” means “an unforeseen combination of circumstances or the resulting state that calls for immediate action” or “an urgent need for assistance or relief.”

In context, the argument is that a national emergency justifying extraordinary presidential action means a situation demanding immediate action, that Congress did not foresee and provide for, or that Congress does not have time to consider and provide for.

A Rational Relation Between the Perceived Emergency and the Presidential Action

Reports this morning are that Trump intends to divert $2.5 billion from current drug interdiction problems, in order to build a wall that will not stop drugs from entering the country.

Does the President not only possess Humpty-Dumpty-like powers to define words, but also the power to act irrationally in addressing the perceived problem that he chooses to call a “national emergency”? That would be surprising.

The Legal Significance of Congressional Consideration and Action

Here, the country has debated, and Congress has considered. the question of a border wall at great length. Having duly considered the matter, both houses of Congress have enacted legislation addressing the topic.

Even if the President might be deemed to possess the powers of Humpty Dumpty in other circumstances, does his power extend to a situation where Congress has fully considered and resolved the matter, and he is unhappy with the result?

Trump Loyalty Versus Logic, Precedent, and Public Policy

A Trump loyalist would find a way to rule for Trump. But that would create a precedent for a fundamental change in our constitutional order.

I have no idea what Alito, Gorsuch, Kavanaugh, and Thomas will say on this topic. I do not believe that John Roberts will render a decision favoring the Cult of Trump.

Be we shall see what we shall see.

Legal Sabotage, Anyone?

And one more thing.

It will also be interesting to see how our new attorney general will handle the matter. Perhaps he, too, has joined the Cult of Trump. But, as I have said before, I doubt it.

One option for him in supervising the legal defense of the national emergency declaration would be to ensure that the legal briefs supporting Trump are so badly written as to sabotage the case. And, by the way, that could easily be done by employing language that Trump himself would love!

We shall see what we shall see.

Trump’s Pecker in Trouble Again

Bezos Pecker

The headline pretty much sums up the situation, I think.

Meanwhile, permit my indulgence this afternoon in some confirmation bias.

For some time my intuition has been that Matthew Whitaker—lightweight, amoral, opportunistic, bottom feeder though he may be—is also a terrified, self-preserving bottom feeder

As I predicted, his terror and minimal sense of self=preservation seem to have stopped him from interfering with the Mueller investigation. Based on today’s hearing’s, Paul Waldman shares my view, and concludes, Whitaker hearing confirms it: On Mueller probe, Democrats have already won.

And, by the way, Mr. Whitaker’s days of public service are soon coming to an end, permitting him to retire into that deep obscurity that he so richly merits. Soon, William Barr will replace him as attorney general. Please let the record reflect my continued view that Mr. Barr—who is also an opportunist, though surely not a bottom feeder—is a Man with a Plan. And that plan is not to save Donald J. Trump.

Theodore Roosevelt Steering a Ship

What is Barr’s Game?

William Barr

We have had the hearings, we have read the July Barr memo, we have digested the information. Here is my quick take, for what it is worth. I wish I had time to develop these thoughts more fully, but life intervenes. So please let me just make some shorthand points.

One. It is obvious even to those of the meanest intelligence that Barr sought the job of Attorney General. When he says that the job sought him, he is fibbin’.

Two. There are many, highly persuasive reasons why someone of his ilk would not have wanted the job—at this time, in these circumstances.

Three. If follows ineluctably from points one and two that Barr is coming to Washington with a mission. I am sure that he cares about issues that normal attorney generals in normal times care about: mass incarceration, immigration enforcement, the finer points of antitrust theory. But common sense would tell us that his concern about such matters is not a motivating factor.

Four. So what might that mission be?

Conceivably, it might be to protect Donald J. Trump at all costs. But there are multiple reasons to reject that supposition.

Conceivably, his secret mission might be to ensure that Donald J. Trump is screwed, blued, and tattooed, in the impeachment process.

But, in my view, it remains much more likely that William Barr, Esquire, has come to Washington to get Donald J. Trump offstage, through a Spiro Agnew-type agreement to resign from office in exchange for immunity from prosecution.

William Barr, Esquire, is the kind of person whose overarching mission in life is to do the bidding of the plutocracy. And the plutocracy—for its own amoral, financially motivated reasons—is sick and tired of the horseshit.

**

I am gestating a post to be entitled, “I Read the Barr Memo, So You Don’t Have To.” Hope to get it done early next week.

The Cat That Ate the Canary

the cat that ate the canary

The Mother of All Straw Men

Speaking of William Barr’s infamous legal memo on presidential power, Jennifer Rubin—who is beginning to get a corner of the puzzle—writes,

Barr set up the mother of all strawmen. If you wanted to preen and audition for the AG job, you’d write a memo based on a narrow set of hypothetical facts that bore no resemblance to the facts at issue and could be distinguished from the actual fact pattern. If the investigation was not premised on Comey’s firing alone but on an entire fact pattern, including witness-tampering and lying to investigators, hypothetically, Mueller wouldn’t be relying on the facts and theory Barr set out. Barr could grandstand and audition for the job, without actually tying his hands.

William P. Barr, Esquire, along with his handlers and confederates think they are being very clever. Indeed, they are. Too clever by half.

As I said before, just exactly the sort of thing you would expect from the folks at Kirkland & Ellis, who are convinced they are cuter than Bambi.

I believe Ms. Rubin has accurately reverse engineered Barr’s Machiavellian strategy for attaining the office of Attorney General. She does not address why Barr might want to occupy that office, at this perilous time. But, as I have said, I believe I have figured it out.

Where, O Where, Has Matt Whitaker Gone?

Feds Investigating Trump Inauguration for Alleged Bribery and Embezzlement

President Trump is facing so many criminal investigations it’s difficult to keep track of them all. The latest, revealed late Thursday by The Wall Street Journal, is that the U.S. Attorney’s Office in Manhattan is probing Trump’s Inauguration. The investigation reportedly centers on two alleged crimes: embezzlement and trading money for favors.

If the Acting Attorney General wants to protect Trump from the investigators, he’s really doing a piss-poor job of it, isn’t he?

The Spiro Agnew Solution

Spiro Agnew, facing deep legal doodoo, made a deal in 1973 to resign from office in exchange for no prosecution for bribery and related offenses.

The new House may or may not impeach Trump. Even if they do impeach him, at this point it looks as the Senate would not convict him and remove him from office.

Prosecutors may or may not try to indict Trump while he is in office. If they do try, then whoever is running the Justice Department may not let them bring an indictment.

These are risks, but the biggest risk of all is that Trump loses reelection in 2020, and that on January 21, 2021, he’s hit with sixty-‘leven criminal indictments.

If my name were Donald J. Trump, the Spiro Agnew option would begin to be looking mighty good right about now.

Implementing the Spiro Agnew Solution

Continuing the speculation laid out in prior posts, I think that William P. Barr, Esquire, is coming to Washington to get that deal done.