Historical events occur twice: How Bill Bar and Donald Trump brought 30 years of GOP criminality full circle
Historical events occur twice, Karl Marx famously said, first as tragedy and then as farce. But when it comes to the rampant lawlessness of Republican presidential administrations, the record is a succession of national tragedies for the United States. And the damage to America’s democratic institutions is no laughing matter. As President Trump, his attorney general, and their allies in right-wing media demonstrated this week in their thus far very successful effort to suppress the Mueller report, the Republican Scandal Defense Machine™ has featured many of the same odious operatives, sham sound bites, and laughable legal theories since the late 1980s. From the Iran-Contra affair, the outing of covert CIA agent Valerie Plame, and President George W. Bush’s purge of U.S. attorneys to his regime of detainee torture, and now the Trump-Russia imbroglio, only the stakes have changed.
For starters, consider the role of Attorney General William Barr. Trump, after all, hired Barr precisely because of—and not despite—his 2017 memo, which argued that special counsel Robert Mueller’s investigation was “grossly irresponsible” and “fatally misconceived,” and risked “grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.” That opposition, echoed by many Republicans in the spring of 2017, sounds eerily similar to the language used by George W. Bush, Dick Cheney, Tom DeLay and others in initially refusing to support the creation of the 9/11 Commission. And when Barr warned, “Mueller’s sweeping obstruction theory would now open the way for the ‘criminalization’ of these [political] disputes,” he was only dusting off the talking point President George H.W. Bush debuted to defend Iran-Contra pardons that he and Barr engineered 25 years earlier.
But Barr’s 21st-century reprisal of his role as GOP legal hatchet man isn’t merely rhetorical. The same attorney general who in his March 24 letter and again in his highly redacted version of the Mueller report promised to share its “principal conclusions” lied to Congress 30 years ago when he made the same pledge. As Ryan Goodman documented this week, as head of the DOJ’s Office of Legal Counsel, Barr refused to release a memo justifying the supposed legality of the FBI’s power to abduct foreigners (like Panamanian dictator Manuel Noriega) and bring them to the United States without consent from the leaders of those countries. Wrong on both the facts and the law, Barr shared only his summary of the secret memo in written testimony to Congress. As Goodman explained, worse than what Barr misrepresented was what he omitted altogether.
As Yale Law School professor Harold Koh told Anderson Cooper on CNN on April 16:
Well, you know, Anderson, athletes and dancers have signature moves and so do lawyers. And Bill Barr is sort of a four-step process. First, refuse and deny, delay. Second, summarize. Third, slant. And four, omit.
So, he was there asked by congressional committee for the opinion. He refused and delayed. Second, when asked to give something, he summarized. Third, when he offered the conclusions, he slanted it toward his client. And then when the opinion was released three years later, it turned out he omitted some of the most unfavorable conclusions to his client.
The full memo of the Office of Legal Counsel was only declassified and released in 1993 after Bill Clinton defeated George H.W. Bush in the presidential election the previous November. As Goodman lamented, “The true content of the opinion, given what Barr told the American people and testified before Congress, remains much to the discredit of the Attorney General.” But if you thought the smoke screen surrounding that GOP memo about “renditioning” foreign suspects to the United States was a one-off, you’d be wrong. As we’ll see below, when the newly inaugurated President Barack Obama in April 2009 released a set of secret Bush administration memos that authorized the torture of terrorism detainees, Republicans and their water carriers accused Obama of “criminalizing conservatism.”
As it turns out, the “criminalization of politics” talking point was first deployed by the GOP in the aftermath of the Iran-Contra scandal, which exploded in 1986. It was the late President George H.W. Bush who popularized the term when he announced his Christmas Day 1992 pardons of several Iran-Contra figures. Those pardons, it turned out, had been manufactured by none other than Attorney General William Barr.
As the once and future attorney general explained his rationale almost a decade later on April 5, 2001:
I asked some of my staff to look into the indictment that was brought, and also some of the other people I felt had been unjustly treated and whether they felt that they would have been treated this way under standard Department guidelines. I don’t remember going through the pardon office, but I did ask some of the seasoned professionals around the Department about this, asked them to look into it. Based on those discussions, I went over and told the President I thought he should not only pardon Caspar Weinberger, but while he was at it, he should pardon about five others…
The big ones obviously were the Iran Contra ones. I certainly did not oppose any of them. I favored the broadest— There were some people arguing just for Weinberger, and I said, No, in for a penny, in for a pound. Elliot Abrams was one I felt had been very unjustly treated.
Among other things, Elliott Abrams would go on to become President Donald Trump’s point man on engineering regime change in Venezuela.
Of course, “Cover-Up General” William Barr, then as now, was only doing the bidding of the president of the United States. In announcing his pardons for two Reagan administration officials awaiting trial (Caspar Weinberger and Duane Clarridge) and four others already convicted (Clair George, Robert McFarlane, Elliott Abrams, and Alan Fiers), Bush 41 tried to convert criminal prosecutions into mere partisan politics. As the New York Times reported at the time:
Mr. Bush said today that the Walsh prosecution reflected 'a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences.'
He added: 'These differences should have been addressed in the political arena without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom.' [Emphasis mine.]
Among others, Maine Democratic Sen. George Mitchell torched Bush’s defense of the pardons. “It is not as the president stated today a matter of criminalizing policy differences,” Mitchell charged. “If members of the executive branch lie to the Congress, obstruct justice and otherwise break the law, how can policy differences be fairly and legally resolved in a democracy?”
If this language sounds nauseatingly familiar and oddly current, it should. After all, right-wing water carriers, including radio host Mark Levin and Andrew McCarthy of the National Review both decried special counsel Robert Mueller’s Trump-Russia investigation as the “criminalization of politics.” Last December, ardent Trump defender Alan Dershowitz even published a book titled Trumped Up: How Criminalization of Political Differences Endangers Democracy. Echoing Bush’s 1992 talking points, he argued in a New York Times op-ed, “When Politics is Criminalized,” that:
[E]lastic criminal laws should not be stretched to cover Mr. Trump’s exercise of his constitutionally authorized power. When the president asked the director of the F.B.I. to drop its investigation into Michael Flynn, the former national security adviser, or fired James Comey from the F.B.I., or provided classified information to the Russians, he was acting within his constitutional powers. Those actions may deserve opprobrium, but they should not be deemed criminal. The proper place to litigate the wisdom of such actions should be at the ballot box, not in the jury box.
Not be deemed criminal, that is, even if the president and members of his administration lied about them. Just as they did in Iran-Contra.
Iran-Contra, as you'll recall, almost laid waste to the Reagan presidency. Desperate to free U.S. hostages held by Iranian proxies in Lebanon, President Reagan provided weapons Tehran badly needed in its long war with Saddam Hussein (who, of course, was backed by the United States). In a clumsy and illegal attempt to skirt U.S. law, the proceeds of those sales were then funneled to the Contras fighting the Sandinista government in Nicaragua. As the New York Times reported, Reagan's fiasco started with an emissary bearing gifts from the Gipper himself:
A retired Central Intelligence Agency official has confirmed to the Senate Intelligence Committee that on the secret mission to Teheran last May, Robert C. McFarlane and his party carried a Bible with a handwritten verse from President Reagan for Iranian leaders.
According to a person who has read the committee's draft report, the retired C.I.A. official, George W. Cave, an Iran expert who was part of the mission, said the group had 10 falsified passports, believed to be Irish, and a key-shaped cake to symbolize the anticipated ''opening'' to Iran.
As his diaries published in 2005 show, Reagan was under no illusions about the illegality of the scheme—or that it constituted anything other than a swap of arms for hostages. On Dec. 5, 1985, Reagan wrote in his diary:
N.S.C. briefing--probably Bud's last. Subject was our undercover effort to free our 5 hostages held by terrorists in Lebanon. It is a complex undertaking with only a few of us in on it. I won't even write in the diary what we're up to.
Nevertheless, just two days later, Reagan wrote about that very topic. On Dec. 7, Reagan noted this in his diary:
Day opened with "Rex" (our new dog) on our bed. I then had a meeting with Don R., Cap W. and Bud M., John P., Geo. Schultz and Mahan of C.I.A. This had to do with the complex plan which could return our 5 hostages & help some officials in Iran who want to turn that country from its present course & on to a better relationship with us. It calls for Israel selling some weapons to Iran. As they are delivered in installments by air our hostages will be released. The weapons will go to the moderate leaders in the army who are essential if there is to be a change to a more stable govt. We then sell Israel replacements for the delivered weapons. None of this is a gift--the Iranians pay cash for the weapons--so does Israel.George S. Cap and Don are opposed--Cong. has imposed a law that we can't sell Iran weapons or sell any other country weapons for resale to Iran. Geo. also thinks this violates our policy of not paying off terrorists. I claim the weapons are for those who want to change the govt of Iran & no ransom is being pd. for the hostages. No direct sale would be made by us to Iran but we would be replacing the weapons sold by Israel.
In case there was any doubt that Ronald Reagan blessed the delivery of hundreds of advanced anti-tank weapons to Tehran, the president himself removed it with his Jan. 17, 1986, diary entry, which stated, "I agreed to sell TOWs to Iran."
Of course, that's not what Reagan told the nation—at least not at first. On Nov. 13, 1986, just as revelations about the weapons shipments to Tehran began to surface, Reagan took to the airwaves to address the American people—and lie to their faces:
The charge has been made that the United States has shipped weapons to Iran as ransom payment for the release of American hostages in Lebanon, that the United States undercut its allies and secretly violated American policy against trafficking with terrorists. Those charges are utterly false. The United States has not made concessions to those who hold our people captive in Lebanon. And we will not. The United States has not swapped boatloads or planeloads of American weapons for the return of American hostages. And we will not...To summarize: Our government has a firm policy not to capitulate to terrorist demands. That no concessions policy remains in force, in spite of the wildly speculative and false stories about arms for hostages and alleged ransom payments. We did not -- repeat -- did not trade weapons or anything else for hostages, nor will we.
But less than six months later, the Gipper was forced to rewrite his historical revisionism. As he told the American people in a nationally televised address on March 4, 1987:
A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not. As the Tower board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages.
Of course, the pathetic saga didn't end there. Then Lt. Colonel and now Fox News commentator Oliver North saw his Iran-Contra conviction overturned by an appellate court led by faithful Republican partisan and later Iraq WMD commissioner Laurence Silberman. And in December 1992, outgoing President George H.W. Bush offered Christmas pardons to Defense Secretary Caspar Weinberger and five other Iran-Contra scandal figures. Among them were John Poindexter and Elliott Abrams, men who eight years later reprised their roles in the administration of George W. Bush. As it turns out, Abrams—one of the people who brought you the Iraq War—also served as an adviser to Mitt Romney during the 2012 presidential campaign. In that capacity, he argued that Congress should give President Obama an authorization to use force against Iran for a preventive war to destroy Tehran's nuclear program. During the 2016 campaign, he advised both Florida Sen. Marco Rubio and Texas Sen. Ted Cruz. And Michael Ledeen, the man who helped set up the weapons triangle between the U.S., Israel, and Iran, in 2016 co-wrote a book titled The Field of Fight: How We Can Win the Global War Against Radical Islam and Its Allies. His co-author? None other than Trump booster, and the shortest-tenured national security adviser ever, Gen. Michael Flynn.
As it turned out, it was then-Rep. Dick Cheney, later Bush 41's secretary of defense and Bush 43's vice president, who authored the sneering 1987 congressional Iran-Contra Committee minority report:
The bottom line, however, is that the mistakes of the Iran-contra affair were just that - mistakes in judgment, and nothing more. There was no constitutional crisis, no systematic disrespect for 'the rule of law,' no grand conspiracy, and no Administration-wide dishonesty or coverup. In fact, the evidence will not support any of the more hysterical conclusions the committees' report tries to reach.
(The American people, of course, never got to see much of that evidence. In 2001, President Bush the Son acted to make sure it would be much more difficult for the public to access the records of President Bush the Father.)
The "criminalization of politics" arrow has been the first one pulled from the Republican scandal quiver ever since.
Take, for example, the outing of covert CIA operative Valerie Plame by the Bush administration in July 2003. After her husband, Ambassador Joe Wilson, wrote a New York Times op-ed about the yellow cake uranium he didn't find in Niger, Americans learned that his wife worked for the CIA on, of all things, WMD proliferation issues. Neither Karl Rove nor others were ever charged with the technical and narrowly defined offense of revealing the Plame’s identity to columnist Robert Novak and others. But Cheney's chief of staff, Scooter Libby, was convicted on four counts of perjury and obstruction of justice. And to the shock troops of the conservative movement, Libby the felon was a victim of the criminalization of politics.
The usual cavalcade of apologists for Republican lawbreaking swarmed to Libby's defense. With Libby's looming indictment in the fall of 2005, Texas Sen. Kay Bailey Hutchison compared him to Martha Stewart, and offered a new variant of the old sound bite, the "perjury technicality." Hutchison said she hoped
That if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars.
Hutchison, of course, had plenty of company in offering the criminalization of politics canard in the CIA leak case. On Oct. 14, 2005, Bill Kristol complained, "I am worried about what happens to the administration if Rove is indicted," adding, "I think it's the criminalization of politics that's really gotten totally out of hand." In succeeding days, Kristol's Fox News colleagues Bill O'Reilly, Sean Hannity, Stuart Varney, and Chris Wallace joined the chorus. On Oct. 24, Kristol took to the pages of the Weekly Standard to denounce a supposed Democratic strategy of criminalizing conservatives. When Libby was later convicted, the Wall Street Journal editorial page called for a pardon. The WSJ cited grave dangers if the Libby verdict were to stand: "Perhaps the worst precedent would be normalizing the criminalization of policy differences."
Fox News regular Tucker Carlson tried to normalize a precedent of his own. While failing to mention that his father, Richard, was on the board of the Scooter Libby Legal Defense Fund, Carlson launched a smear campaign against special prosecutor Patrick Fitzgerald. In November 2005, he insisted Fitzgerald was "accusing Libby—falsely and in public—of undermining this country's security," adding, "Fitzgerald should apologize, though of course he never will." Reversing his past position in support of independent counsels, Carlson in February 2007 blasted "this lunatic Fitzgerald, running around destroying people's lives for no good reason." After Fitzgerald in a May 2007 court filing confirmed Plame's covert status, Carlson called the Bush appointee a liar:
“CIA clearly didn't really give a shit about keeping her identity secret if she's going to work at f**king Langley...I call bullshit on that, I don't care what they say.”
As for Scooter Libby, he had his sentence commuted by President George W. Bush and later received a full pardon from President Trump. Presiding over Libby’s trial and conviction was federal district court Judge Reggie Walton. Following his verdict in the Libby case, Walton received death threats. First appointed by United States Chief Justice John Roberts in 2007, Judge Walton is now the presiding judge of the Foreign Intelligence Surveillance Court. Walton is now hearing a Freedom of Information Act case involving the Mueller report and has stated that he may review the Justice Department’s redactions. “Obviously there is a real concern as to whether there is full transparency,” he said this week. "The attorney general has created an environment that has caused a significant part of the American public to be concerned" about the redactions.
Former House Majority Leader Tom DeLay called bullshit, too, when he was indicted on money laundering charges. DeLay, who had previously been reprimanded by the House and saw several of his aides convicted in the Jack Abramoff and other scandals, declared as early as April 2005 of the ethics charges then swirling around him: "Democrats have made clear that their only agenda is the politics of personal destruction and the criminalization of politics." Amazingly, that comment came before DeLay's own October 2005 indictment in Texas for money laundering in association with his PAC Texans for a Republican Majority (TRMPAC).
Unsurprisingly, the conservative echo chamber rushed to DeLay's defense and amplified his talking point. Days after DeLay's indictment by District Attorney Ronnie Earle, Robert Novak penned a column titled “Criminalizing Politics,” concluding:
“Democrats are ecstatic. The criminalization of politics may work, even if the case against DeLay is as threadbare as it looks.”
DeLay, who on the day of his booking said, "Let people see Christ through me," had a similar message following his conviction in November 2010:
“This is an abuse of power. It's a miscarriage of justice. I still maintain my innocence. The criminalization of politics undermines our very system.”
(Ultimately, The Hammer claimed vindication when a Texas appeals court, by a 2-to-1 vote, threw out his money laundering conviction.)
Like Libby and DeLay’s defenders, congressional Republicans sang from the same “criminalization of politics” hymnal during the imbroglio surrounding the politically motivated firings of U.S. attorneys beginning in 2006. In May 2007, Republican California Congressman Dan Lungren was only too happy to offer the criminalization of politics ruse for Monica Goodling and Alberto Gonzales alike. Just moments after acknowledging Goodling's admission of violating civil service rules and Hatch Act prohibitions ("She did admit that she made mistakes in that regard"), Lundgren returned to the script:
“Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?”
That was a surprising statement for him to make, given that Bush White House liaison Goodling, in her May 23, 2007, testimony, admitted she had discriminated against job applicants who weren't Republican or conservative loyalists. Admitting that she illicitly screened out civil service job applicants who happened to be Democrats, Goodling clarified for all why she sought immunity from the committee in the first place:
"I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes."
But during his questioning, then-Indiana Republican Rep. Mike Pence ignored Goodling's confession to make a different point about the Bush administration's purge of U.S. attorneys then under investigation.
"I'm listening very intently. I'm studying this case, and I want to explore this issue of illegal behavior with you. Because it seems to me, so much of this, and even something of what we've heard today in this otherwise cordial hearing, is about the criminalization of politics. In a very real sense, it seems to be about the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government." [Emphasis mine.]
"I am troubled," Pence concluded, "about the fact that we seem to be moving ever further down the road of the criminalization of politics."
As it turned out, the DOJ's own inspector general later rejected that criminalization of politics defense. (As the AP reported in May 2008, "A new Justice Department report concludes that politics illegally influenced the hiring of career prosecutors and immigration judges, and largely lays the blame on top aides to former Attorney General Alberto Gonzales.") But in a July 2010 report for the Department of Justice, Bush appointee Nora Dannehy effectively swept the prosecutor purge under the rug, concluding that the Bush administration's actions in sacking seven U.S. attorneys were inappropriately political, but not criminal.
The same, however, cannot be said of President Bush's regime of detainee torture implemented after the devastating attacks of Sept. 11, 2001. As I have documented elsewhere, U.S. and international law not only define waterboarding as torture, but require the legal prosecution of torturers. As Scott Horton explained, after Vice President Cheney (soon followed by President Bush) boasted of their support for waterboarding and other so-called "enhanced interrogation techniques”:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?...What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.
Alas, it was not to be. Despite the agreement by President Obama, Attorney General Eric Holder, and the Senate Intelligence Committee's John McCain that waterboarding constitutes torture, Bush, Cheney, and their henchmen never faced justice for authorizing torture and forever staining the honor of the United States.
As a candidate for the presidency, then-Sen. Barack Obama denounced waterboarding as torture. "It's time to stop the political parsing and to close the legal loopholes," Obama said on Oct. 29, 2007. "Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution." As president, Obama reiterated his belief in the illegality of the Bush administration torture techniques. As recently as his May 2013 speech at the National Defense University, Obama declared:
In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.
Yet even he before he was sworn in, President-elect Obama made it clear that the Bush torture team need not fear punishment from him:
We need to look forward as opposed to looking backwards.
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in free fall. In the last quarter of 2008, the GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So Obama signaled to Team Bush and its Republican allies that there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to that talking point conservatives love most: criminalizing politics. During his confirmation hearings on Jan. 16, 2009, attorney general nominee Eric Holder declared, "Waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.
Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, the identities of those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were prosecuted, as Holder in August 2012 ended his last investigation into two detainee deaths.) President Obama went further in seemingly backing away from any legal action against the Bush torture team:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.
But spending that time and energy was never about "laying blame for the past"; it would have been about redeeming American values by holding America's leaders to account for failing to uphold those values—and the law. As George Washington University professor Jonathan Turley, now carrying water for Trump, put it in 2010:
Because it would have been politically unpopular to prosecute people for torture, the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point.
And a Republican talking point at that. After all, what Eric Holder called "criminalizing policy differences" is the standard defense Republican miscreants have used for decades to fight off scandals, including Iran-Contra, the Valerie Plame affair, illicit domestic surveillance by the NSA, and the Bush administration's prosecutor purge. And when the Obama administration in April 2009 released those four torture memos authored by Bush attorneys Jay Bybee, Steven Bradbury, and John Yoo, Republicans in Congress and their amen corner in the media charged that the new president was "criminalizing conservatism."
Powerline's John Hinderaker made that exact charge in a piece by the same title. "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009, titled "Presidential Poison," the Wall Street Journal went on the attack, using the GOP's tried-and-untrue “criminalizing politics” canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
But almost 10 years later, no "patriotic official" has been indicted, no judges have been impeached, and no professor has been stripped of his academic tenure—not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Foundation. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lose his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who smeared the Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appeared regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush, he's free to paint himself in the shower and give speeches to "replenish the ol' coffers."
Now, the walls are closing in on another Republican president, Donald Trump. With the U.S. intelligence community having long ago concluded that Russia interfered in the 2016 election to help Trump get elected, the Mueller probe is continuing to unearth more revelations about the four Trump-Russia scandals. (They are: possible collusion with Moscow by the Trump campaign, potential conflicts of interest involving Trump’s businesses, changing U.S. policies toward Russia as a result, and obstruction of justice.) Thirty-three people have been indicted in connection with Mueller’s “several ongoing investigations”; several, including Flynn and Trump campaign manager Paul Manafort, have pleaded guilty. The “Perjury Chart” on the website Just Security has begun tracking the Team Trump players who have misled, lied to, or perjured themselves before investigators and congressional committees.
In response to this week’s developments, Republican press, pundits, and politicians have rounded up the usual talking points. (These are generally the same people who, along with Donald Trump, Michael Flynn, and posing Attorney General Matthew Whitaker, have said of Hillary Clinton, “Lock her up.”) PJ Media lamented, “Mueller racks up yet another process crime with Michael Cohen's guilty plea.” Sean Hannity protested that Gen. Michael Flynn’s life had been ruined by Mueller, who has “set out to disrupt, discredit, and destroy the presidency of Donald J. Trump.” He wrote, “No matter how many lives are ruined in the process. You can't get him on the crime. Let's get him on a process crime. Let's set a perjury trap.”
Libby defender Tucker Carlson agreed, resurrecting the old Scooter sound bites about “perjury technicalities” and “no underlying crime” this week to warn, “Boy, there had better be a huge crime underlying all of this. We’re really going through a lot and so if this winds up being a bunch of stupid perjury charges, I mean, someone should be punished for it.”
Rush Limbaugh and the folks at PJ Media aren’t the only ones whining that “every one of Mueller’s indictments is a process crime.” As Steve Benen noted, the GOP’s best and brightest on Capitol Hill have been regurgitating the same talking point:
Some Republicans, like Sen. Lindsey Graham of South Carolina and Sen. John Thune of South Dakota, said Cohen’s admission doesn’t prove collusion between Russia and the president. […]
Graham, who has emerged as one of Trump’s fiercest defenders, said he had “no idea what that’s all about” when asked his reaction to Cohen’s guilty plea, adding that it “seems to be a process crime.”
Of course, another word for “process crime” is “crime.” Breaking the law is breaking the law, unless the miscreants and the narrators of the story are Republicans. In that case, as the late George H.W. Bush and a generation of Republicans have insisted, the lawlessness is merely “the criminalization of policy differences.” But almost 26 years after Poppy first debuted that tried-and-untrue GOP defense, it remains a cynical fraud. As Bob Bauer put on the blog Lawfare a year ago:
If there is evidence that a presidential campaign established a political alliance with a foreign power, and the successful candidate upon achieving office then obstructs an inquiry into the facts of that relationship, it is a strange indeed to suggest that an investigation is somehow an abuse of law and the legal process.
It is a not a criminalization of politics to investigate serious allegations of criminality in politics.
Unless, of course, you’re a Republican. Then, as President Richard Nixon counseled Vice President Spiro Agnew in 1973, “Just say that it’s persecution. Political partisan persecution crap.” Donald Trump has been only too happy to call the tentacles of the Russia investigation “a witch hunt” no fewer than 261 times. Earlier this month, Attorney General Barr refused to contradict Trump’s witch hunt charge, telling senators, “It really depends on where you're sitting, if you are somebody who is being falsely accused of something.” As for Trump’s Republican allies in Congress, they already made up their minds even before Barr released his sanitized, abridged version of the special counsel’s report on April 18. As California Republican Rep. Devin Nunes put it on Fox News earlier this week, “Whatever happens on Thursday, Donald Trump is a free man.”
And whatever steps Democrats may take to force the release of the Mueller report, Donald Trump’s tax returns, his accounting firm’s records, or pretty much anything else that could put the 45th president in legal jeopardy, his men on the Supreme Court will definitely put a halt to it. That would be Justice Neil Gorsuch (whose mother Anne Gorsuch was cited for contempt of Congress during her rocky Reagan-era reign at the EPA) and Justice Brett Kavanaugh (who, as Bill Clinton inquisitor Ken Starr’s hatchet man in 1998, said of the investigation into Clinton that it was “our job to make his pattern of revolting behavior clear—piece by painful piece.”
All of which means Donald Trump, Bill Barr, and Capitol Hill Republicans will soon stop whining about the “criminalization of politics” and get on with the people’s work. Things like investigating the Obama Justice Department for “spying” and prosecuting Hillary Clinton over her email server.