A demagogic president can walk right up to the edge of committing a crime, so long as he operates brazenly in public view.
Attorney General Bill Barr's summary of the report from Robert Mueller is only a first step in the accounting of this president's behavior, but it is not too early to reach this conclusion: It marked a good day for some norms — but a much, much worse one for others.
A special counsel's investigation of a president is first and foremost a mechanism for addressing strictly legal questions. But it is necessarily always more, and the investigative process and the ultimate legal and factual findings reflect, help shape and often reinforce the state of key norms — fundamental expectations of presidential conduct.
Legal process norms have mostly emerged in sound condition. The Mueller investigation was completed without, as Mr. Barr affirmed, any action rejected by the attorney general or Rod Rosenstein, the deputy attorney general. Soon after Mr. Barr had received the Mueller report, he released a summary of the principal conclusions. So far, the attorney general is proceeding in compliance with the special counsel rules for congressional notification and a more general, "public interest" release. And he has pledged additional transparency.
The attorney general's involvement in the final decision on potential obstruction of justice is more questionable. After all, Mr. Barr's views were well known to the White House on this topic: He did not bring an open mind to it.
Still, the Senate confirmed him, and he was clear that he would not recuse himself on these grounds. And in reaching a prosecutorial judgment on obstruction, Mr. Barr consulted Mr. Rosenstein, who concurred in the decision to decline prosecution; he also claims to have engaged the Office of Legal Counsel.
These process norms fared well. But the Mueller report marked a low point for more substantive norms of presidential conduct. It shows that a demagogic president like Donald Trump can devalue or even depart radically from key norms, just short of committing chargeable crimes, so long as he operates mostly and brazenly in full public view. For a demagogue, shamelessness is its own reward.
Such a president can have openly, actively encouraged and welcomed foreign government support for his political campaigns, and his campaign can reinforce the point in direct communications with that government's representatives. The Barr summary reveals that the special counsel uncovered not just a couple but "multiple offers" of support from the Russians, and yet neither Mr. Trump nor his campaign reported them to counterintelligence or law enforcement authorities. Mr. Trump went further still — while in office, he dictated a statement for his son and campaign aide, Donald Trump Jr., that falsely represented the purposes of the June 2016 Trump Tower meeting between senior campaign representatives and a Kremlin-connected representative (and others) offering assistance in the 2016 election.
Mr. Mueller proceeded cautiously on this and other evidence. Federal campaign finance laws prohibit soliciting and receiving support from foreign nationals or "substantially assisting" them in their efforts to influence an American election, but Mr. Mueller concluded that the rules as applied to the facts did not support a criminal prosecution. This was a conservative judgment — but it underscores again the urgent work norms must do if the law is inadequate to the task.
Similarly, the letter notes that much of the president's obstructive behavior during the investigation was in "public view." This was apparently a significant consideration in the decision by Mr. Barr and Mr. Rosenstein not to prosecute (along with the determination that there was no underlying "collusion" legal offense). Here, once again, the president who is a demagogue — who is fully prepared to flaunt well-established, vitally important expectations about how American presidents faithfully execute the laws — can safely bring self-interested, self-protective pressure on the Department of Justice and undermine its public standing and authority.
In this case, the president's all-out assault on the department, the special counsel and the Federal Bureau of Investigation did not prevent Mr. Mueller from completing his investigation and reporting his conclusions (or his reasons, in the case of obstruction, for not reaching a conclusion and leaving it to the attorney general to decide). Who is to say that the next demagogue to occupy the Oval Office won't follow this same path but take it one or more steps further? Mr. Trump has shown the way.
For the classic demagogue, so feared by the founders, the only question is what works to serve his own interests. He will do, and he will say, what it takes, weighing only the personal costs against the personal benefits. In the polarized politics of the day, Mr. Trump is bolstered in his demagogic conduct by a passionately loyal "base" impressed by his norm-busting.
So, even before other facts emerge, the urgent question is how to revive and even strengthen the norms. We have reason to salute Mr. Mueller: As a prosecutor, he did his job conscientiously, and the process generally worked as designed. But we now have cause to worry about the future of the norms that Mr. Trump could trash on a calculation that he could get away with it.
It was a good moment for the demagogue.
By Bob Bauer
Mr. Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law. This appears in The New York Times, March 25, 2019.
March 25, 2019
Voices4America Post Script. This article is a good reminder of what we face. A demagogue walked right up to the edge of committing some crimes, and committed others, operating brazenly in public view, but were they in Mueller's bailiwick? The criminal law is a poor measure — a very low bar — for a president. Expect more "on the edge crimes" from Trump - and expect much from us as we next move to impeach and indict him.
Holding a President to the high standards required by the Constitution is not outside the balliwick of Congress - or of us, the American people. Trump will be stopped!
Yes, #ReleaseTheFullReport but also #ImpeachTrump #IndictTrump