Democrats Slap Donald Trump On the Wrist In the Midterms

The midterms were a mixed success for the Democrats in 2018. Most notably the Democrats took control of the House, but unfortunately this probably means Nancy Peolsi returns as Speaker. They also regained about three hundred of the near one thousand seats in state legislatures they lost over the past decade, have a majority of state attorney generals in the nation, and won some key governorship battles, especially in the midwest. On the other hand, despite a Republican president as terrible as Donald Trump, their midterm gains in the House were historically not terribly impressive for the party out of power, and they did poorly in the high profile battles in the Senate. (I’m waiting to hear Rachel Maddow explain why the Russians meddled in the Senate races but not the House races this year.)

This was far more a slap on the wrist than a shallacking for Donald Trump.

The Senate map was undoubtedly very unfavorable for Democrats, but it will be so virtually every year as long as Democrats are unable to come up with a message to win in the smaller states beyond the east coast. The system of giving two Senators to each state regardless of size makes the Senate extraordinarily unrepresentative. Still, don’t be tempted to repeat the memes showing up since the election regarding winning the popular vote. They are misleading as the entire nation did not vote for Senate, and this can be tilted by which states do vote. This was especially true in 2018 as California had two Democrats running for Senate due to a system where the two leaders in the primary get on the November ballot regardless of party. This leads to a tremendous number of Democratic votes if the mythical Senate popular vote is counted, but only one Democratic Senator.

Democrats are always far quicker to list off the problems which make it more difficult to win than to change their strategy. They showed once again that moving to the right in the hopes of attracting Republican votes does not work. Nor did recruiting veterans help them do any better than expected. I would prefer to see Democrats be more consistent in supporting a reduction in  the role of government in the private lives of individuals–an attitude which might make defense of reproductive rights part of a consistent philosophy that might be accepted in the more libertarian minded portions of the country. Taking a rational anti-war line, as opposed to acting as if they are apologizing for appearing weak on national security, might also help in those areas which are hurt by perpetual warfare–and rejected Hillary Clinton in 2016.

This does note mean that the Democrats don’t have many valid complaints, including regarding voter suppression and gerrymandering. Some of the election results will help, including increasing their strength in several state governments before the next redistricting. While the high profile races in Florida did not turn out as hoped (how badly did campaigning with Hillary Clinton hurt Andrew Gillum?), but there was a victory in passing a ballot initiative to restore voting rights to convicted felons who have served their time.

While Democrats continued to struggle in Florida and Ohio, their hopes for Pennsylvania, Michigan, and Wisconsin being more blue in 2018 look favorable after Tuesday’s results, including the defeat of Scott Walker in Wisconsin. Besides possibly giving the Democrats their electoral votes again in 2020, there might be an increased number of representatives as the heavily gerrymandered system of drawing Congressional districts will be replaced by an independent redistricting commission in Michigan.

Other ballot proposals passing in Michigan will make it easier to vote and legalized marijuana for recreational use. Newly elected Governor Gretchen Whitmer is looking at legislation or issuing executive orders to free prisoners convicted for marijuana related charges which will no longer be crimes after the ballot proposal passed. I did hold my nose and vote for Whitmer, despite her reliance on dark money and financing by Blue Cross Blue Shield of Michigan. Action such as this will make me happier that I did so. A judge has already put some new marijuana cases on hold.

Medicaid expansion passed in Idaho, Nebraska, and Utah, and is also expected in Kansas due to the victory for a Democratic governor. While there is no chance of it becoming law imminently, there are also more Democratic supporters of Medicare for All in the House.

There were victories for various groups. The media has covered extensively how there are more women and people of color in the House. In addition, seven more scientists were elected to the House–all Democrats as the Republican war on science continues.

It remains to be seen how some issues will play out now that the midterms are over. Are we still supposed to be terrified by the caravan? Donald Trump quickly took advantage of having control of the Senate by firing Jeff Sessions.  I never would have guessed that I would see this as a bad thing when Sessions first became Attorney General. On the one hand, Sessions might have been the worst Attorney General in history. On the other hand, Sessions was absolutely right in his dispute with Trump in recusing himself from Mueller’s investigation, and his firing could be a sign that Trump plans to take action against Mueller. I suspect that Mueller has prepared for this by being ready to turn over evidence of financial crimes committed by Trump and his cronies to state prosecutors. Congressional Democrats will also be able to take over the investigation if needed. Hopefully they concentrate on Trump’s financial crimes and obstruction of justice, as opposed to the dubious conspiracy theories popular among many Democrats blaming Russia for Hillary Clinton’s loss.

James Comey On The Investigation Of Hillary Clinton

After getting a copy of James Comey’s book, A Higher Loyalty, I couldn’t resist skipping past the material from earlier in his career and get to the sections on Clinton and Trump. His views of Trump and his reasons for his statements on Clinton have been dealt with in many media interviews over the past week, but I did find some selections worth quoting from Chapter 10, which deals with his investigation of Hillary Clinton.

The first section I’m quoting lays out the reasons for the investigation. This is important as Clinton apologists often claim that the lack of an indictment exonerates Clinton. The first problem with this is that the inclusion of classified material investigated by the FBI is only one aspect of the email scandal. The bigger scandals in terms of Clinton being unfit for the presidency were over her violating rules designed to promote transparency (after she accused members of the Bush administration who did far less of shredding the Constitution), her frequent lies to the press and the public over her email, and the question of whether the email which was destroyed contained evidence of her influence peddling at the State Department.  This section also notes that Colin Powell’s use of his AOL account was not relevant to the investigation, despite Clinton trying to use his actions as an excuse:

Though much has been made since of Hillary Clinton’s emails and the FBI’s investigation, the focus of the Bureau’s investigation is often lost. The criminal investigation was not centered on the fact that Secretary Clinton decided to use nongovernmental email to do her work. In an attempt to blur the seriousness of the case, her defenders often cite the fact that one of her predecessors, Colin Powell, also used nongovernmental email, in his case AOL, as if that were relevant to the investigation. In fact, it entirely misses the point. I have never seen any indication that Powell discussed on his AOL account information that was classified at the time, but there were numerous examples of Secretary Clinton having done so.

Our investigation required us to answer two questions. The first question was whether classified documents were moved outside of classified systems or whether classified topics were discussed outside of a classified system. If so, the second question was what the subject of the investigation was thinking when she mishandled that classified information.

Information is classified based on its potential for harm to the United States if it is disclosed. Information marked at the lower classification level of “Confidential” refers to information that can cause some damage to the security of the United States if released. Information labeled “Secret” refers to material expected to cause “serious” damage to national security. “Top Secret” information is material that, if disclosed, could be expected to cause “exceptionally grave” damage to the security of the United States. This system is enforced by a variety of possible administrative punishments, including possible loss of a person’s security clearance or loss of their job. For the most serious cases, criminal prosecution is a possibility. A variety of espionage statutes make it a felony to steal or to disclose national security information to people not permitted to receive it. Those statutes are used most often when someone is a spy or gives classified information to journalists for publication. More commonly used is a statute making it a misdemeanor—punishable by up to a year in jail—to mishandle classified information by removing it from appropriate facilities or systems. Even with the misdemeanor, the Department of Justice has long required that investigators develop strong evidence to indicate government employees knew they were doing something improper in their handling of the classified information.

In Secretary Clinton’s case, the answer to the first question—was classified information mishandled?—was obviously “yes.” In all, there were thirty-six email chains that discussed topics that were classified as “Secret” at the time. Eight times in those thousands of email exchanges across four years, Clinton and her team talked about topics designated as “Top Secret,” sometimes cryptically, sometimes obviously. They didn’t send each other classified documents, but that didn’t matter. Even though the people involved in the emails all had appropriate clearances and a need to know, anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials. Although just a small slice of Clinton’s emails, those exchanges on top-secret topics were, by all appearances, improper. Put another way, there were thirty-six email chains about topics that could cause “serious” damage to national security and eight that could be expected to cause “exceptionally grave” damage to the security of the United States if released. The heart of the case, then, was the second question: What was she thinking when she did this? Was it sloppy or was there criminal intent? Could we prove that she knew she was doing something she shouldn’t be doing?

It makes sense that Comey did not recommend prosecution–if you go by this standard. While Clinton did mishandle classified information (and had previously lied about this), I would agree that she did not intend to compromise the security of the United States. However, people lower than Clinton who had treated classified information in this manner would be far less likely to receive such consideration if investigated.

Further in the chapter there was more on his rational for not recommending prosecution:

Her actions in regard to her emails seemed really sloppy to us, more than ordinary carelessness. At one point the draft used the term “grossly negligent,” and also explained that in this case those words should not be interpreted the way a hundred-year-old criminal statute used the term. One part of that 1917 law made it a felony if a person “through gross negligence permits [classified material] to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”

The history of that provision strongly indicated that Congress in 1917 meant the statute to apply only to conduct that was very close to willful—that is, driven by bad intent—and members of Congress who voted for it back then were very concerned that they not make merely careless behavior a felony. I was told that the Department of Justice had only charged one person under this statute since 1917—a corrupt FBI agent whose conduct was far worse than gross negligence—and no one had ever been convicted under it. This context strongly reinforced my sense that the statute simply did not apply in the Clinton email case and made use of the term “grossly negligent” inappropriate and potentially confusing, given the old statute. So I directed our team to consider other terms that more accurately captured her behavior. After looking at multiple drafts, I settled on “extremely careless” as the best way to describe the conduct.

Another section suggests that Comey handled Clinton with a different standard than the average person probably would have been treated:

By Clinton’s account, she was unsophisticated both about technology and security, used the personal account for convenience to avoid maintaining dual government and personal email accounts, and still didn’t consider the contents of the emails to be classified. Her lack of technological sophistication is evident in her memoir, What Happened, in which she seems to intimate that her private server in Chappaqua was protected from hacking because it was contained in a home guarded by the Secret Service. Hacking a server is done through the internet, not by breaking the glass in a basement window. She also said in her interview that she believed she and her staff had successfully “talked around” sensitive topics, a method of operating made necessary by the State Department’s poor communications infrastructure, which didn’t provide secure and reliable email and phone for her and her senior staff. There was some truth to this, but although frustrating to her team, it didn’t change the rules around classified information. Also in her interview, Clinton said she delegated the review and deletion of her emails to others, believed they were only deleting purely personal emails, and had no knowledge of any efforts to obstruct justice.

After discussion and careful review of her answers, there was nothing in her comments that we could prove was a lie beyond a reasonable doubt. There was no moment when investigators caught her in a lie. She did not at any point confess wrongdoing or indicate that she knew what she had done with her emails was wrong. Whether we believed her or not, we had no significant proof otherwise. And there was no additional work the investigators thought they should do. This case was done. Now the American people needed to know what the FBI had found.

We do know that the deleted email did contain non-personal material, such as discussions of Iraq and Libya, due to finding examples of deleted email from the other party involved. Imagine if you or I had email subpoenaed, reported that half was deleted because it was personal, and tried to explain this by saying we don’t understand computers and someone else had handled the deletions. I just don’t believe such excuses would be accepted from people not as powerful as Clinton.

Comey did not believe that Loretta Lynch was interfering with his investigation, but this passage shows she certainly did intercede to try to help Clinton’s reputation during the investigation (when she was also a candidate):

Attorney General Lynch agreed that it made sense to do that. But then she quickly added, “Call it ‘a matter.’”

“Why would I do that?” I asked.

“Just call it ‘a matter,’” came her answer.

It occurred to me in the moment that this issue of semantics was strikingly similar to the fight the Clinton campaign had waged against The New York Times in July. Ever since then, the Clinton team had been employing a variety of euphemisms to avoid using the word “investigation.” The attorney general seemed to be directing me to align with that Clinton campaign strategy. Her “just do it” response to my question indicated that she had no legal or procedural justification for her request, at least not one grounded in our practices or traditions. Otherwise, I assume, she would have said so.

The FBI didn’t do “matters.” The term means nothing in our language, and it was misleading to suggest otherwise. It was probably a mistake that I didn’t challenge this harder. But in that moment, I decided that her request was too frivolous to take issue with, especially as my first battle with a new boss. I also was confident the press, and the public, would totally miss the distinction between a “matter” and an “investigation” anyway. Maybe she knew that, too. I know the FBI attendees at our meeting saw her request as overtly political when we talked about it afterward. So did at least one of Lynch’s senior leaders. George Toscas, then the number-three person in the department’s National Security Division and someone I liked, smiled at the FBI team as we filed out, saying sarcastically, “Well, you are the Federal Bureau of Matters.”

I followed the attorney general’s direction at my regular quarterly press roundtable on October 1, 2015. When a reporter asked a question about the “investigation,” I replied that I was following it closely. I said I was confident we had “the resources and the personnel assigned to the matter, as we do all our work, so that we are able to do it in a professional, prompt, and independent way.”

I did what my boss ordered me to do. I said “matter.” As expected, the press uniformly missed the distinction and reported that I had confirmed the existence of an investigation. From then on, I called it by its true name—we had an open “investigation” and I wouldn’t comment on it any further. Until I had to, many months later.

Obama similarly tried to help Clinton:

Contributing to this problem, regrettably, was President Obama. He had jeopardized the Department of Justice’s credibility in the investigation by saying in a 60 Minutes interview on October 11, 2015, that Clinton’s email use was “a mistake” that had not endangered national security. Then on Fox News on April 10, 2016, he said that Clinton may have been careless but did not do anything to intentionally harm national security, suggesting that the case involved overclassification of material in the government. President Obama is a very smart man who understands the law very well. To this day, I don’t know why he spoke about the case publicly and seemed to absolve her before a final determination was made. If the president had already decided the matter, an outside observer could reasonably wonder, how on earth could his Department of Justice do anything other than follow his lead? The truth was that the president—as far as I knew, anyway—had only as much information as anyone following it in the media. He had not been briefed on our work at all. And if he was following the media, he knew nothing, because there had been no leaks at all up until that point. But his comments still set all of us up for corrosive attacks if the case were completed with no charges brought.

The other question commonly raised regarding the investigation is whether Clinton is justified in using the statements from Comey as an excuse for losing the election. While I am not getting into excerpts from Comey regarding his statements in this post, I did recently discuss why Clinton and not Comey is to blame for Clinton losing the election here.

Clinton And Her Apologists Still Wrong In Blaming James Comey For Clinton’s Loss

There should be little controversy as to the main headline coming out of James Comey’s interview with George Stephanopoulos. Donald Trump is morally unfit to be president. The more questionable claims are coming from Clinton supporters who have used this as an opportunity to repeat the absurd claims that James Comey is responsible for Hillary Clinton losing the 2016 election. This is wrong on many levels.

The biggest problem with this is that James Comey would not have been investigating Clinton in the first place if she had not grossly violated the rules regarding the use of email, as was verified by the State Department Inspector General’s report, and  hadn’t handled classified information in a careless manner. The investigation further hurt Clinton as Comey’s report demonstrated that she had repeatedly lied in her public statements about the matter. This gave further credence to her reputation of both seeing herself above the  law and of being dishonest. She further hurt herself when she repeatedly lied about what James Comey had reported.

Hillary Clinton, not James Comey, is ultimately responsible for any problems caused by the email investigation. The Democratic Party also shares the blame after rigging the nomination for Clinton despite the evidence as to how weak a candidate would be (even beyond the ethical questions surrounding their behavior). This was like if the Republicans had nominated Richard Nixon after the public knew about Watergate.

It didn’t take much to see that a scandal of this magnitude could easily cost Clinton the election.This was obvious by March of 2015 when I had a post entitled, Clinton’s Use Of Private Email Suggests Democrats Need To Consider A Plan B For 2016. Instead of exercising common sense, or looking at the facts, many Democrats passed off lies about the scandal which were repeatedly being debunked by the major newspaper fact checkers. Instead of standing up for principle, many Democrats ignored the magnitude of Clinton’s unethical behavior with trite sayings like “but her email.”

The email scandal also highlighted Clinton’s long-standing weaknesses, including her dishonesty and acting like the rules which apply to everyone else do not apply to her. Clinton’s own serious negatives balanced out Trump’s negatives. Clinton’s personal views and record also hurt her, including her record on trade and on foreign interventionism.

The 2016 election was pretty close to a fifty-fifty election, with a close popular vote and an electoral college vote which could have gone either way. The problem for Clinton’s argument is that the race should never have been this close in an election against a candidate as terrible (and morally unfit) as Donald Trump. The polls showed that nominating Clinton, as opposed to another candidate such as Bernie Sanders, meant giving up about ten percent of the vote. That was a costly choice by Democrats.

David Axelrod responded to Clinton’s claims that Comey cost her the election last year:

“It takes a lot of work to lose to Donald Trump,” Axelrod told CNN on Wednesday. “Let me tell you, he was the least popular presidential candidate to win in the history of polling.”

…Axelrod called the 2016 race a “miserable slog” and said nobody in America wants to relive it “except the combatants who keep going back to it.”

“She has a legitimate beef because Comey’s letter was instrumental I think in her defeat, so in a narrow sense she is right about it,” Axelrod said.

“But Jim Comey didn’t tell her not to campaign in Wisconsin after the convention. Jim Comey didn’t say don’t put any resources into Michigan until the final week of the campaign,” he continued.

“And one of the things that hindered her in the campaign was a sense that she never fully was willing to take responsibility for her mistakes, particularly that server.”

Axelrod then offered a piece of advice for Clinton.

“If I were her, if I were advising her, I would say, ‘Don’t do this. Don’t go back and appear as if you’re shifting responsibility.’ … She said the words ‘I’m responsible,’ but the — everything else suggested that she doesn’t really feel that way,” he said.

“And I don’t think that helps her in the long run, so if I were her I would move on.”

Clinton was already in serious trouble, both due to her own personal faults and due to the terrible campaign she had run, in the final days of the election. The American Association for Public Opinion Research cast doubt on the effects of Comey’s letter in analyzing the late polls:

In its effort to explore reasons for the large percentage of late-deciding voters who chose Trump, the report examines a central Clinton claim: that FBI Director James Comey’s letter to Congress on Oct. 28 of last year, stating that the bureau had discovered additional evidence related to Clinton’s use of a private email server while serving as secretary of state, might have tipped the race.

The report does not find evidence the Comey letter was determinative.

“The evidence for a meaningful effect on the election from the FBI letter is mixed at best,” the report states, citing polls that showed Clinton’s support beginning to drop in the days leading up to the letter. “October 28th falls at roughly the midpoint (not the start) of the slide in Clinton’s support.”

Unfortunately there will continue to be Clinton apologists who will not face the fact that Clinton lost because of being a horrible candidate, who could not obtain a major party nomination for president in a fair campaign, and who went on to run a terrible campaign. Blaming others, whether it is James Comey, Russia, or any of the many others Clinton has tried to blame, does not change this.

Quote of the Day: James Corden on Donald Trump

It’s being reported that a former doorman at a Trump building in New York was paid $30,000 to keep quiet about a rumor that Trump fathered an illegitimate child with his housekeeper in the 1980s. A secret illegitimate child. I don’t believe it. Finally, something Trump didn’t want to put his name on.

It’s beginning to sound like Donald Trump spent most of the last 30 years trying to make America pregnant again. –James Corden

FBI Raids Offices Of Michael Cohen Due To Suspected Bank Fraud And Campaign Finance Violations

The FBI has raided the office and hotel room of Donald Trump’s personal attorney, Michael Cohen. Cohen was allegedly involved in a payoff to Stormy Daniels along with having a major role in Trump’s attempts to build a Trump tower in Moscow.

The Washington Post reports:

The F.B.I. raided the office and hotel room of President Trump’s longtime personal lawyer, Michael D. Cohen, on Monday, seizing business records, emails and documents related to several topics, including payments to a pornographic film actress.

Federal prosecutors in Manhattan are investigating Mr. Cohen for possible bank fraud, and the documents identified in the warrant date back years, according to a person briefed on the search.

The prosecutors obtained the search warrant after receiving a referral from the special counsel, Robert S. Mueller III, according to Mr. Cohen’s lawyer, who called the search “completely inappropriate and unnecessary.” The search does not appear to be directly related to Mr. Mueller’s investigation, but most likely resulted from information that he had uncovered and gave to prosecutors in New York…

The Cohen raids required high-level authorization within the Justice Department. Under regulations governing the special counsel’s work, Mueller is required to consult with Deputy Attorney General Rod J. Rosenstein if his team finds information worth investigating that does not fall under his mandate to examine Russia’s interference in the 2016 election.

Rosenstein, as the acting attorney general supervising Mueller’s work, has the responsibility of deciding whether to expand Mueller’s mandate to include the new topic or to refer it to a U.S. attorney’s office.

Since Cohen is a practicing attorney whose communications with clients are considered privileged, federal prosecutors would have been required to first consider a less intrusive investigative tactic than a search warrant before executing the raids.

To serve a search warrant on a practicing attorney, federal prosecutors are required to obtain approval from top Justice Department officials. That means the acting U.S. attorney in Manhattan, Geoffrey S. Berman, who was appointed to his role by Sessions in January, as well as Justice Department officials in Washington, probably signed off.

As the report notes, the Trump Justice Department would have had to sign off on this with the raid being approved by Rod Rosenstein. In addition, the acting US Attorney in Manhattan, Geoffrey S. Berman would have signed off on this. Berman was was appointed by Trump and personally interviewed by him. While it is possible that this is a “disgraceful” overreach as Trump protests, it is doubtful that people such as Rosenstein and Berman would have signed off on this if there was not strong evidence against Cohen, especially considering the legal requirements in such a situation. As Taegan Goddard wrote:

The U.S. Attorney’s Manual says prosecutors “are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law.” If a FBI raid is the “least intrusive,” one can only imagine the seriousness of the crimes.

This is definitely not an act which could have been conducted by rogue prosecutors, or something done by anti-Trump partisans.

Popehat has more on the review process which would have been necessary to approve this raid.

Trump Considered Replacing Sessions With Pruitt, Despite Multiple Scandals

The Trump administration has shown a strange level of inconsistency towards scandal. On the one hand, former Secretary of Health and Human Services Tom Price was quickly fired over the use of private jets. Former  Veterans Affairs Secretary David Shulkin was supposedly fired over European travel, although that appears to have been an excuse to get rid of him over disagreements over privatizing the VA. On the other hand, we are seeing an unprecedented level of corruption and conflicts of interest between business relationships and government positions involving Trump, his family, and others in his administration.

Todd Pruitt is currently facing a number of ethics issues but, at least for now, these are no concern to the Trump Kleptocracy. CNN suggests that this is because Trump was thinking of replacing Jeff Sessions with Pruitt. CNN reports:

President Donald Trump floated replacing Attorney General Jeff Sessions with Scott Pruitt as recently as this week, even as the scandal-ridden head of the Environmental Protection Agency has faced a growing list of negative headlines, according to people close to the President.

“He was 100% still trying to protect Pruitt because Pruitt is his fill-in for Sessions,” one source familiar with Trump’s thinking told CNN.

Though the President has, at times, floated several people a day for multiple positions in his administration that are already occupied, the proposition reveals just how frustrated Trump remains with Sessions because of his decision to recuse himself from overseeing the Russia investigation more than a year ago, while signaling how confident he has remained in Pruitt despite a dizzying number of ethics issues.

The irony is that, while Sessions is wrong on virtually everything, the one decision where he did the right thing was recuse himself from the Russia investigation.

NPR has reported on many of the ethical scandals Pruitt is involved in here.

Trump Remains In Legal Peril Regardless Of Whether He Is A Subject Or Target Of Mueller’s Probe

The Washington Post reports that Donald Trump is a subject, not a target of Mueller’s Probe. From their report:

Special counsel Robert S. Mueller III informed President Trump’s attorneys last month that he is continuing to investigate the president but does not consider him a criminal target at this point, according to three people familiar with the discussions.

In private negotiations in early March about a possible presidential interview, Mueller described Trump as a subject of his investigation into Russia’s interference in the 2016 election. Prosecutors view someone as a subject when that person has engaged in conduct that is under investigation but there is not sufficient evidence to bring charges.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

While some Trump supporters are taking this as vindication, it does not mean very much. I’ll start with the response from a conservative columnist to avoid questions of partisan bias. From Jennifer Rubin:

In other words, he is under investigation. On the way out the door after an interview with Mueller, he could be informed that he has just become a target. In other words, the “subject but not a target” designation is at best for Trump meaningless and at worst a sign he’s in jeopardy at any moment of becoming a target. There is a further complication here. Under the Justice Department’s current Office of Legal Counsel memo, a sitting president cannot be indicted; in other words, he cannot be charged — hence is not a target — until he leaves office. Jed Shugerman of the Fordham University School of Law agrees that, most likely, “all it means is Mueller probably has no intention of indicting a sitting president (who thus is not a target).”

The most frightening news for Trump (if he was paying attention) is confirmation that Mueller will write out a report, even before his full investigation is complete, likely making the case that Trump has obstructed justice. That could then be made public by Deputy Attorney General Rod J. Rosenstein and used by Congress — in all likelihood only if Democrats win one or both chambers — to commence impeachment proceedings.

Trump might not be a target because Department of Justice policy is that a sitting president cannot be indicted. There is also no guarantee that Trump’s status will remain the same. Mueller could take Trump’s statement (in which it is very possible Trump will commit perjury), and then turn around and say that he is now a target. Even if Trump remains safe from being a target of criminal prosecution, this might only apply while he is still in office. If Mueller is planning to prepare a report which it sounds like could accuse Trump of obstruction of justice, this could also be used by Congress to both further investigate Trump and initiate impeachment proceedings. Of course this is unlikely to matter unless the Democrats take control of the House.

While there remains no  evidence to support Clinton’s claims of collusion between Trump and Russia which altered the election results, there are plenty of matters which could be uncomfortable for Trump, including  money laundering, tax evasion, and obstruction of justice. If Congress takes up such investigations, this could also lead to the public release of those tax returns which Trump has been trying so hard to hide.

More at Outside The Beltway, Vox, and Popehat.

Mike Allen Provides Clue Regarding Mueller Investigation Which Further Casts Doubt On Democratic Conspiracy Theories About Election

As was revealed in Shattered, within twenty-four hours of losing the election, Hillary Clinton decided to blame others such as Russia for her loss to Donald Trump. Polls such as a recent YouGov survey show that a strong majority of Democrats continue to believe the claims of a conspiracy between Donald Trump and Russia which altered the election despite the lack of any evidence for this after over a year of investigations. The evidence available so far suggests that the investigation is moving in a different direction. Mike Allen of Axios posted A huge clue about Mueller’s endgame:

Axios has learned that special counsel Robert Mueller has focused on events since the election — not during the campaign — in his conversations with President Trump’s lawyers. The top two topics that Mueller has expressed interest in so far: the firings of FBI director James Comey and national security adviser Michael Flynn.

Why it matters: That suggests a focus on obstruction of justice while in office, rather than collusion with Russia during the campaign. But both sagas are interwoven with Russia: Trump himself has linked Comey’s firing to Russia, and Flynn pleaded guilty to lying to the FBI about conversations with the Russian ambassador during the transition.

This has actually been clear for quite a while. Mueller’s indictments have primarily involved matters such as money laundering, tax fraud, and obstruction of justice. The only indictments which related to the 2016 election campaign involved indictments of Russians for violation of federal election finance laws and identify theft. The indictments did not involve actions which either altered the election results or which indicated any collusion between the Trump campaign and Russia. Those indictments involved social media activities which did not appear to have any meaningful impact on the election results.

Many others, such as here and here, have also been writing, contrary to the hysteria coming from cable news, that this scandal is primarily about financial crimes and their cover-up, not altering the election results. Michael Wolf, author Fire and Fury, has also said that the scandal is about money laundering, not collusion with Russia regarding the election. It is significant that Axios has added to his. That is because Mike Allen is well-connected, and  his voice will carry weight with many in the mainstream media. This could be the start of a trend towards looking at the scandal more objectively by others in the press.

Throughout the investigation there have been signs of the direction Mueller is going, including in his indictments and the types of attorneys he has hired. Other evidence goes along with Allen’s view that his focus is on “obstruction of justice while in office, rather than collusion with Russia during the campaign.” While this is still somewhat speculative, I wonder, based upon the recent request for business documents from the Trump Organization, if the focus on events since the election could also include the unprecedented conflicts of interest between Trump’s role as president and his business dealings, including his dealings with Russian oligarchs.

Quote of the Day: Conan O’Brien on Stormy Daniels

The porn star that claims she had an affair with the president is now suing him. Man, it’s so weird – it’s almost as if we DID elect a Clinton! –Conan O’Brien

DNC Talking About Reforming Failed System Which Gave Hillary Clinton 2016 Nomination With No Action Yet

The nomination processes of both major political parties failed in 2016, with each major political party nominating a candidate who was unfit to be president. The situation was even more outrageous in the Democratic Party which  has long standing rules to supposedly prevent the nomination of an unelectable candidate. Instead of utilizing the rules to prevent an unelectable candidate from winning, the DNC used such rules, and made additional rules changes for the 2016 election, to give the nomination to Hillary Clinton in a process which was no more democratic than to give the nomination in the proverbial smoke-filled room.

The Democrats ultimately lost an election they should have won in 2016 due to rigging the nomination for a candidate too weak to win the nomination on her own, and who was unable to beat a candidate as terrible as Donald Trump in 2016. The rigging of the Democratic nomination also alienated many potential voters, putting the party in danger of further losses. As I noted in December, the party created a “unity commission” to make recommendations to change some of the party rules which led to the catastrophe in 2016. Typically establishment Democrats call for unity, except when they are attacking the left.

A key recommendation was to reduce the number of superdelegates. While this recommendation was hardly sufficient following the abuses of 2016, the party leaders continue to talk without actually taking any action. The Hill reports on their inaction over the past weekend:

The Democratic National Committee (DNC) voted Saturday to acknowledge a need to reduce the influence of so-called “superdelegates” in the presidential primaries, while a decision on specific changes to the role such delegates will play in the 2020 election won’t come until this summer.

At the DNC’s winter meeting, officials accepted language committing the party to reduce the “perceived influence” of superdelegates, the unelected delegates that are free to support any candidate for the party’s nomination…

The DNC said in the report adopted Saturday that its Rules and Bylaws Committee will present its final proposal to the full party later this year. The panel was given six months, starting in late December, to come up with specific actions it would take regarding superdelegates.

DNC Chair Tom Perez called the vote Saturday a “milestone.”

“[T]he Democratic Party is stating loudly and clearly that the status quo will change,” he said. “When our work is complete, our 2020 nomination process will be the most fair and transparent in the history of American presidential politics.”

Perez had told The Associated Press that officials “will improve the democratic process” before the 2020 elections. “If we’re going to win elections, you’ve got to earn the trust of voters, and many voters had a crisis of confidence in the Democratic Party.”

The DNC’s Rules and Bylaws Committee had been discussing a proposal drafted by the Unity Reform Commission that was created after the 2016 primary battle. The commission had said they wanted the number of superdelegates reduced by 60 percent, but the Rules and Bylaws Committee suggested it might do even more.

During the 2016 election, supporters of Sanders argued that superdelegates allowed Clinton to get early endorsements and develop an early lead before the primaries or caucuses even began.

There are DNC members who want to remove superdelegates from the Democratic Convention’s first ballot altogether, allowing the candidate with the majority of pledged delegates earned through the primaries and caucuses to win the nomination.

Other DNC members believe they have earned their uncommitted vote through years of participation in the party.

Any proposal to change the power of superdelegates would need two-thirds support from the DNC’s 447 members to pass.

Hillary Clinton’s strategy was to promote the view that her nomination was inevitable, and the party’s rules played into this. This included restricting debates so that opposing candidates would receive far less coverage and have less of an opportunity to build early momentum, along with superdelegates and front loading of southern states. While in 2008 the popular vote in Iowa was released, this was not done in 2016, harming Sanders who probably won the popular vote but did not receive a proportionate number of delegates due to having his voters more heavily concentrated in college towns. Failing to announce the popular vote can also harm candidates who might receive a significant number of votes but fail to receive delegates.

These rules played into Clinton’s strategy of appearing inevitable by having the news media reporting a strong lead for Clinton in delegates after the votes in New Hampshire and Iowa, despite Sanders receiving more votes. Then there were the shenanigans by Harry Reid in Nevada, followed by favorable states for Clinton on Super Tuesday. The party also helped in other ways including changing of fund raising rules to help Clinton, voting restrictions, and giving Clinton unprecedented control over the party during the primary campaign.

The recommendations of the Unity Commission do not go far enough. Besides eliminating superdelegates, if the Democrats hope to gain the trust of voters, they should also end the front-loading of primaries, end restrictions on debates, and give assurances that the types of changes made in 2016 to give Clinton the nomination will not happen again.

Besides these more technical issues, the credibility of the Democratic Party was also seriously harmed by nominating a candidate as corrupt as Hillary Clinton, who repeatedly used her years in public life for personal financial gain, and whose support for unnecessary wars and military intervention has resulted in a massive number of deaths and misery. More recently the DNC has purged progressives and made lobbyists superdelegates. Other arms of the Democratic Party have pushed conservative policies and attacked progressive candidates despite evidence contradicting the view of the Democratic leadership that progressive candidates are less electable. Just talking about reducing the “perceived influence” of superdelegates is not enough.