In his brief public statement on May 29, Special Counsel Robert Mueller III made his position regarding his possible testimony before Congress clear:

“Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully and the work speaks for itself. And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress. [My emphasis].”

I expect Mr. Mueller to be true to his word. The House of Representatives’ Judiciary and Intelligence Committees have nonetheless determined to have Mr. Mueller testify before them. Any number of pundits have opined that the Democratic-led Committees are thinking that since reading the Special Counsel’s report – exceeding, as it does, 400 pages – is beyond the ken of the great majority of Americans (a fact that is, of itself, worthy of reflection), having Mr. Mueller testify on television – even if he says nothing more than what is in the report — will galvanize Americans to realize that President Trump has behaved in a way unfit for the office he holds. I’ve seen several references to the effect that the 1973 Watergate hearings had upon the general public perception of President Richard Nixon.

We are in a different time and place. Although I consider Mr. Trump to have behaved in innumerable ways – both detailed within the Mueller Report, and outside its confines – that warrant his removal from office, I would suggest that the Committees have embarked upon a fool’s errand … a perspective that I suspect House Speaker Nancy Pelosi shares. Mr. Mueller’s testimony promises to motivate those already vehemently opposed to the President to put pressure on their Democratic representatives to pursue Mr. Trump’s impeachment and removal from office – a politically quixotic endeavor, since there are not 20 Republican Senate Republicans (who already know what’s in the Report) possessing the political courage to vote to remove the President even if they privately consider such action to be appropriate.

On the larger substantive level, I would offer that the Democrats’ efforts are misguided because it seems overwhelmingly likely that Mr. Trump’s supporters already viscerally know that he did all the things that Mr. Mueller and his team have reported … and they don’t care. [“He who has ears to hear, let him hear.” Matthew 13:9.]  They believe themselves belittled, ignored, left behind, and perceive Mr. Trump – correctly or not – as being the first powerful politician in decades to speak for them. His voice is undoubtedly worth much more to them than what they almost certainly now dismiss as legal niceties. If you feel that you have been picked on for decades, and then a bully comes along that upbraids those that you consider to have abused you … you’ll be willing to overlook “your” bully’s flaws.

Spending more time obsessing and hyperventilating on malign activity that an insufficient segment of our electorate will be willing to act upon is a waste of taxpayers’ money.  [For once, I agree with Republicans  ;).]  At best, Democrats may weaken Mr. Trump’s support among any voters that are still undecided about him – an extremely small slice of the electorate that admittedly might be the difference in a close election – but risk having the undertaking redound to the President’s benefit by energizing his supporters. Democrats might be better served by devising strategies that will meaningfully resonate with the non-bigoted segments of Mr. Trump’s base, rather than exhilarating in maneuvers that will probably enhance the President’s chances of re-election.

Enough pontificating for one day …

As all who care are already aware, a fracas has sprung up during the past week regarding former Vice President Joe Biden’s remarks at a fund raiser regarding his relationship with segregationist U.S. Senators James Eastland (MS) and Herman Talmadge (GA) in the 1970s. While Mr. Biden’s comment, “[Mr. Eastland] never called me, ‘boy,’ he always called me ‘son’,” was clearly a mindless choice of words, the purported outrage that has poured forth from other Democratic candidates and liberal talking heads regarding Mr. Biden’s remarks has conveniently ignored his other comments: that he and the segregationists “… didn’t agree on much of anything,” that he’d “… argue like the devil with them” and that Mr. Talmadge “… was one of the meanest guys I ever knew.” Some progressives, intent on a political holy war, seemingly reject Mr. Biden’s underlying point: the need for our representatives of different political stripes to make an effort to find some common ground.

I would submit that there is only one relevant question in all this – and that, of the most vital importance: Is Mr. Biden is a racist? If he is, his critics should forthrightly say so, and present their evidence. Apparently no one who knows Mr. Biden — including former President Barack Obama, SC U.S. Rep James Clyburn, GA U.S. Rep. John Lewis, or Rev. Al Sharpton — thinks he is a racist. I would therefore suggest that the exaggerated indignation over what was a tone-deaf choice of words is at least misinformed (it’s hard to see how CA Sen. Kamala Harris can sensibly accuse Mr. Biden of “speaking with such adoration” of, or “coddling” Mr. Talmadge, given the former Vice President’s reference to the late Senator as “one of the meanest guys I ever knew”), and probably opportunistic grandstanding (“I was raised to speak truth to power,” pronounced NJ Sen. Cory Booker while criticizing Mr. Biden – the same Mr. Booker who memorably if incongruously declared himself “Spartacus” during the Kavanaugh hearings).

The disagreement of some of Mr. Biden’s critics with the former Vice President’s larger point – the need to reach consensus, to find common ground among those with differing views — is wrong-headed both on principle and in practicality. Taking practicality first, as some Democratic candidates and progressive talking heads seem intent on Democratic political self-immolation, Republicans and conservative interests are clear-eyed as to who would be President Trump’s most formidable opponent in 2020. What follows are all from the Wall Street Journal’s opinion pages this past Thursday:

Conservative Columnist Daniel Henninger noted a recent Fox News poll showing that Democratic voters favored “steady and reliable leadership” (72%) over a “bold, new agenda” (25%). “Mr. Biden may be doing so well in the head-to-heads against Mr. Trump because many voters simply want respite from the nonstop Trumpian atmosphere of disruption and volatility.… Joe Biden is offering a return to normalcy…. [I]f these polls are right, after four years of Donald Trump the prospect of being force-fed daily doses of Elizabeth Warren or Bernie Sanders is unthinkable for a lot of people.”

Karl Rove, the architect of George W. Bush’s presidential victories, noted Mr. Biden’s stated intent to win Georgia, North Carolina, South Carolina, Texas and Florida, stating, “Republicans should pay attention….With the exception of South Carolina, Team Trump can’t take Mr. Biden’s targets for granted….The Trump Campaign must … disqualify any Democratic nominee with suburban Republican and independent defectors who swung the House to the Democrats last fall …”

The Journal editorial board itself noted about Mr. Trump’s formal launch of his campaign, “Mr. Trump may figure he can persuade some of those skeptics by making the Democratic nominee even more unpopular than he is. If the Democrats oblige by nominating Bernie Sanders or Elizabeth Warren, that might be possible. But that is making a bet on the other party’s mistake …”

Ms. Harris and Mr. Booker aren’t even figuring in the other side’s thinking, and these Senators clearly realize that if they can’t convert some of Mr. Biden’s African American support to their campaigns, their candidacies are finished. The wise heads politically leading the African American Community – and I would bet the majority of the politically savvy within the Community – appear at this point to be sticking with Mr. Biden because they recognize that he is both a genuine friend of African Americans and the best bet to rid us all of President Trump. There will be time to think about Spartacus later.

Finally, as to principle: Neither party is the font of all wisdom nor the den of all iniquity. Our system is one of “checks and balances” because it is based upon the premise, in practice as far back as Hamilton and Jefferson, that constructive policy depends upon trust between and the well-intended engagement of those with competing views. The collegiality that Mr. Biden urges will be an inherent part of whatever progress we hereafter make as a people and a nation. The avid progressives seeking a political crusade from the left are as misguided and potentially as destructive as the alt-conservatives waging such offensives from the right.

“The Pharisees and their scribes complained to his disciples, saying, ‘Why do you eat with tax collectors and sinners?’ Jesus said to them in reply, ‘Those who are healthy do not need a physician, but the sick do. I have not come to call the righteous to repentance but sinners.’” Luke 5:30-32.

Although it seems more than a bit blasphemous to compare politicians’ political machinations to the Lord’s quest for souls, since we as voters cling to the hope that our representatives will do what they can to make the world better, perhaps the most effective methods to reach souls and achieve a better world are indeed similar. While the Democrats will probably get by this kerfuffle, I never discount their capacity to self-righteously self-destruct.

As all who care are aware, last week Special Counsel Robert Mueller vocalized his Report’s implied call upon Congress to conduct an impeachment inquiry addressing President Trump’s activities related to the Special Counsel’s investigation — a process that, if the inquiry’s findings merited, would culminate with a House impeachment vote and likely Senate Trial. Given his derogatory comments about the Special Counsel following the statement, it is apparent that the President himself interpreted Mr. Mueller’s remarks as a call for impeachment proceedings.

The practical difficulty with the Congressional approach urged by Mr. Mueller is manifest: there aren’t 20 Republican Senators who have the political courage to vote for the President’s removal from office even if they privately agree that his behavior warranted it. The political calculus is equally obvious. Any such efforts to remove Mr. Trump from office will: arguably play into his hands, enabling him to wage a straightforward crusade — against “the Dems,” “the Deep State Coup,” and “the Media”; result in an almost certain and outwardly vindicating Senate victory for the President; create a perhaps-unequaled way to galvanize his supporters for the 2020 election; and – to me most importantly – leave the centrist voters upon whom the election’s outcome will rest with the unfavorable impression that the Democrats engaged in an inappropriate partisan spasm intended to undo the results of the 2016 election. I would submit that for Democrats, an impeachment initiative is a sucker’s choice.

The two primary players in this constitutional chess match are obviously the President and Speaker of the House Nancy Pelosi. Mr. Trump is reported to recognize the strategic political advantage he may gain from an impeachment inquiry, but to be at the same time understandably wary about the inquiry’s outcome and its effect on the public. For her part, Ms. Pelosi is reportedly facing intensifying calls from members of her House caucus to begin an impeachment inquiry that she clearly considers a practical and political loser. She seemingly will soon need a way to appease pro-impeachment House Democrats while avoiding the political pitfalls that her instincts tell her lie in impeachment proceedings.

Rather than embark upon a struggle which Ms. Pelosi knows she can’t win, she could consider an approach that might enable her to maintain the upper political hand and help the country as well. House leadership might draw up a list of its top priorities and have staff draft bills that, if passed, would implement those priorities. Given our need to thwart future election meddling, the highest priority (at least for me) would be a comprehensive, amply funded bill enabling the safeguarding of our federal, state and local election systems from interference by state/non-state actors, combined with the imposition of legal duties upon significant social media providers to identify and remove fraudulent presences from their platforms. Other potential priorities could range across health care, the environment, immigration, infrastructure, repeal of some 2017 corporate and personal high-income tax cuts, etc., etc. Congressional Democratic leadership would then decide which one or two of the various priorities might (1) given the right incentive, be palatable to the White House and (2) be considered sufficient exchange by progressives intent on impeachment.

When this effort was completed, Ms. Pelosi and Mr. Schumer could approach the President and Senate Majority Leader Mitch McConnell with this proposal: if Sen. McConnell garnered sufficient Republican Senate votes to pass the House-drafted bills virtually “as is” and the President thereupon signed such bills, the House of Representatives would, after the bills had been passed and signed, suspend its investigations of the President for the remainder of the current Congressional term. This would not be an offer to “start discussions” of the Democrats’ priorities in return for the suspension; the quid pro quo for the suspension would be the prior enactment of the Democrats’ priorities “as is.” An ancillary, but crucial point: the House’s pledge to suspend its investigations would expire if the President claimed vindication related to the House’s discontinuance.

One might surmise that depending upon the priorities Democrats selected and how progressively the enabling legislation was cast, Mr. Trump, given his lack of grounded policy principles, might be very tempted to agree to the deal. Although Mr. McConnell would probably be less enthusiastic, I suspect that he might warm to the notion if the President suggested that he would otherwise endorse an alt-right Republican to compete against Mr. McConnell in the 2020 Kentucky Republican Senatorial primary.

There would obviously be nuances to be worked out and potential ramifications to be weighed; among them, that each side would have to agree to share the credit for whatever bills were passed, that there would be no assurance for the President that he wouldn’t be subject to the criminal justice system the day he left office, and that the deal might steady Mr. Trump’s politically-listing ship. Democrats would be gambling that Mr. Trump’s divisive and exhausting behavior would still be his 2020 undoing.

In October, 1986, President Ronald Reagan and U.S.S.R. Communist Party General Secretary Mikhail Gorbachev met in Reykjavik, Iceland, desirous of reducing ballistic missiles and nuclear weaponry. During their discussions, Gen. Sec. Gorbachev proposed eliminating all nuclear weaponry, but added a condition – accounts I’ve seen varying a bit – that either field testing or deployment of the U.S. Strategic Defense Initiative (“SDI”) be delayed for a significant number of years. Mr. Reagan demurred, and the discussions ended (although they are generally credited with laying the groundwork for the 1987 Intermediate-Range Nuclear Forces Treaty). When asked about Reykjavik years later, Mr. Reagan’s Secretary of State, George Schultz, recalled, “[W]hat we did was use [as bargaining chips] things like an agreement not to deploy [SDI] for a certain number of years, which I remember arguing with the President, that’s like giving them the sleeves from your vest. There’s nothing we’re going to deploy in seven years anyway [my emphasis].”

There is admittedly no indication that the President, Senate Republicans, and Democrats are capable of contemplating any “grand bargain.” Even so, given the overwhelming likelihood that Democrats will never garner sufficient Senate votes to remove the President from office following an impeachment trial, if Ms. Pelosi was able to leverage the President’s uneasiness with impeachment proceedings (in turn caroming through Republican legislators’ evident fear of politically crossing Mr. Trump) to achieve substantive policy goals, while enabling the Democrats to escape the political box in which they are increasingly finding themselves, it would be a significant accomplishment in return for … the sleeves from her vest …

As part of a note posted February 7, 2019, addressing the Senate’s confirmation process for then- Attorney General Nominee William Barr, I stated:

“Partisans on both sides are currently all too-ready to impute ulterior motives to those with whom they disagree. If solid evidence that senior members of the Trump Campaign illegally colluded with Russia is presented to Mr. Barr by a universally-respected investigator, I suggest that one need assume either that he will bring the information to the Congress, or that he is a partisan – indeed, traitorous – blackguard. I am willing to believe, unless and until I have evidence to the contrary, that Mr. Barr will do what is necessary to protect the United States while conducting his duty.”

While my caution regarding Mr. Barr specifically related to the prospect of his being presented with evidence of “illegal collusion” – technically, criminal conspiracy – for which Special Counsel Robert Mueller’s team finally found insufficient basis to bring charges against Trump Campaign Principals, and the Attorney General has ultimately made the majority of the Special Counsel’s Report public, it has nonetheless now become obvious through both the contents of the Report itself and the letters sent to the Attorney General by the Special Counsel following Mr. Barr’s issuance of his Summary of the Special Counsel’s Report that for a period of weeks, Mr. Barr misleadingly characterized the overall thrust of the Special Counsel’s Report and unnecessarily delayed in releasing sections of the Report which would have made its tenor plain.

A link to Mr. Mueller’s March 27, 2019, letter to Mr. Barr is set forth below. A bit over one page in length, it is worth reading in its entirety. You will find that Mr. Mueller indicated to Mr. Barr, a scant three days after Mr. Barr issued his Summary of the Report’s findings: “[Mr. Barr’s] summary … did not fully capture the context, nature, and substance of this Office’s work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine … full public confidence in the outcome of the investigations. [My emphasis].”

https://www.lawfareblog.com/document-robert-muellers-letter-bill-barr

It is sadly clear that my belief in Mr. Barr was … undeserved.