RUTHFULLY YOURS

The Trump-Russia “collusion” farce gets everything bass-ackwards.

As we’ve pointed out many times, collusion is not a crime; conspiracy is. To prove a conspiracy, you need more than mere association and collaborative action; you need an agreement to commit a specific statutory violation of penal law. Thus far, there is no indication that an actual crime has been committed.

Under the regulations for special-counsel appointments, there is supposed to be cause to believe a crime has been committed before a prosecutor is appointed. Yet, we have a prosecutor assigned to the case even though there is, as yet, no crime. The Justice Department has given this special counsel, Robert Mueller, carte blanche to hunt for a crime, notwithstanding that his jurisdiction is supposed to be circumscribed by the crime(s) that the Justice Department first specifies in appointing him – i.e., the suspected offenses trigger the appointment, the appointment is not supposed to trigger a search for suspected offenses.

Notwithstanding the lack of probable cause that a crime has been committed, much less any indication that the special counsel contemplates filing formal charges, two new premature questions have arisen: (1) May a president be indicted, and (2) may a president pardon himself?

INDICTMENT

The split in opinions over the first question was well summarized back in May by the New York Times’s Adam Liptak. I must say I don’t see this as a complex question: There is no legal reason why a sitting president should not be indictable. The complexities that attend the question are practical, not legal.

The president is in charge of the executive branch. The Justice Department answers to him. All U.S. attorneys are appointed by him and may be dismissed at will by him. It seems inconceivable, then, that a president would authorize his own indictment; he’d more likely dismiss any federal prosecutor who attempted to indict him. That includes any special counsel. As we have observed, there is no such thing as an independent prosecutor in our federal system. The special counsel is beholden to the attorney general (or the deputy attorney general when, as in the case of Mueller’s investigation, the attorney general has recused himself); the attorney general, in turn, is beholden to the president.

Still, even though these practical hurdles to a president’s indictment seem insuperable, there is no legal bar to the indictment of a president. The Constitution explicitly states (in article I, section 3) that an official who is impeached may be indicted in the justice system for any crimes committed. Some legal experts infer from this provision that a president must be impeached before he may be indicted. But the clause does not say that; it simply says that if an official is impeached, that is not a bar to prosecution.

The upshot is this: The status of being president does not provide immunity from prosecution.

As I explained in Faithless Execution, when executive misconduct is at issue, the Constitution’s main check is impeachment. But impeachment is a political remedy, not a legal one. It provides no double-jeopardy protection against criminal indictment. The political proceeding is vitally different from the legal one. Impeachment is about removing political power from a public official. Prosecution is about punishing an individual – i.e., depriving him of liberty or property – for violations of law, regardless of whether he also happens to be a public official.

Because the status of being president must not be construed to confer an immunity that would permanently foreclose prosecution, it seems to me that the statute of limitations demonstrates why sitting presidents cannot have immunity from indictment.

Terry McAuliffe, governor of Virginia and former prolific Clinton fundraiser, is no idiot when it comes to politics. In response to a general question about Hillary Clinton’s postelection deportment, he not only turned a recent Politico podcast discussion to Russia’s election meddling but zeroed in on fake Russian intelligence implicated in FBI chief James Comey’s election interventions.

Why this underplayed episode, among all the overplayed theories of Russian meddling, might weigh on his mind is no mystery. Put aside the obvious objection that if Hillary Clinton had been a better candidate, she would have won. Joshua Green, author of a new book about the election, “Devil’s Bargain,” says internal Trump polls showed a clear view of the race’s final days. Voters who liked neither candidate broke decisively for Mr. Trump after Mr. Comey’s Oct. 28 letter reopening the investigation into Mrs. Clinton’s email server.

Nate Silver, the polling authority at FiveThirtyEight.com, reached the same conclusion using public surveys: “Hillary Clinton would probably be president if [Mr. Comey] had not sent a letter to Congress on Oct. 28.”

Mr. Comey, in public testimony, attributed his serial interventions to the Arizona tarmac meeting of Bill Clinton and Attorney General Loretta Lynch. A Washington Post headline blared: “Now we know: Bill Clinton cost his wife the presidency.”

Except that, in later reporting by the Post and other new organizations, it wasn’t the tarmac meeting at all; it was planted Russian intelligence about Attorney General Lynch that led to Mr. Comey’s intervention.

This story actually makes a lot more sense. The public knew about the tarmac meeting. Voters were already factoring it in. If the Justice Department worried how its Clinton decision would play, it could have leaked the Comey recommendation. It could have authorized him to speak publicly.

Plenty of Hillary surrogates, from President Obama on down, stood ready to lend credibility to a decision not to prosecute Mrs. Clinton. Mr. Comey’s unprecedented, protocol-violating step simply wasn’t required. CONTINUE AT SITE

Mr. Cotton, a Republican, is a U.S. senator from Arkansas.

‘We need Congress to do its job,” President Trump said Saturday at the commissioning ceremony for the USS Gerald R. Ford. “Pass the budget that provides for higher, stable and predictable funding levels for our military needs that our fighting men and women deserve.”

The president is right, but what’s standing in the way is the Budget Control Act of 2011. So why don’t we repeal it already?

In retrospect, the Budget Control Act of 2011 was ill-conceived from the start. Rather than attack America’s spending problem at its root, the law only clipped a few stray leaves off the branches. In the early Obama years, the federal deficit spiraled out of control, reaching $1.4 trillion in 2009 before settling in around $1.3 trillion for the next two years. Entitlement programs—which, combined with interest payments on the national debt, make up two-thirds of federal spending—are the key driver of our long-term debt challenges.

But President Obama refused to address this problem and instead made a deal with Senate Majority Leader Harry Reid and House Speaker John Boehner —neither of whom is in office today—to squeeze some savings from the remaining one-third of the budget, what’s called “discretionary” spending.

The BCA put budget caps on discretionary spending for 10 years, ending in 2021, and established a 12-member congressional “supercommittee” to find at least $1.2 trillion in additional savings over that same 10-year window. The law stipulated that should the committee fail, there would be an across-the-board cut, or “sequester,” to keep spending below the caps. Half the savings would come from the defense budget and half from nondefense spending, meaning the military would absorb 50% of the cuts, even though it accounts for only about 16% of all spending.

The BCA proved flawed in execution as well. To everyone’s dismay and no one’s surprise, the supercommittee deadlocked. In 2013, a sequester took effect, though the cuts in overall spending were short-lived.

It’s true that after the BCA became law, there was a modest decline in federal spending: from $3.6 trillion in 2011 to $3.5 trillion in 2012 and $3.4 trillion in 2013. But this diet proved as short-lived as most others. By 2015, federal spending was back to $3.6 trillion, and it’s been growing ever since.

Why? Because in 2013 and again two years later, Congress raised the BCA’s budget caps. We already know how 2017 will end. In September, Congress will pass what’s known as a continuing resolution, which essentially freezes spending at last year’s levels. Later in the fall, congressional leaders will meet behind closed doors to write a two-year budget deal that again raises the BCA caps. In December, Congress will pass a massive omnibus spending bill with all sorts of not-so-goodies slipped in undetected. Then, in December 2018, there’ll be another omnibus, and the cycle will likely repeat in 2019-20.

How do we know? Because that’s exactly what Congress did in 2013-14 and in 2015-16.

Donald Trump won’t let even success intrude on his presidential ego, so naturally he couldn’t let the Senate’s health-care victory stand as the story of Tuesday. Instead he continued to demean Jeff Sessions, and in the process he is harming himself, alienating allies, and crossing dangerous legal and political lines.

For a week President Trump has waged an unseemly campaign against his own Attorney General, telling the New York Times he wished he’d never hired him, unleashing a tweet storm that has accused Mr. Sessions of being “beleaguered” and “weak.”

Mr. Trump is clearly frustrated that the Russia collusion story is engulfing his own family. But that frustration has now taken a darker turn. This humiliation campaign is clearly aimed at forcing a Sessions resignation. Any Cabinet appointee serves at a President’s pleasure, but the deeply troubling aspect of this exercise is Mr. Trump’s hardly veiled intention: the commencement of a criminal prosecution of Hillary Clinton by the Department of Justice and the firing of special prosecutor Robert Mueller.

On Tuesday morning Mr. Trump tweeted that Mr. Sessions “has taken a very weak position on Hillary Clinton crimes. ” This might play well with the red-meat crowd in Mr. Trump’s Twitterverse, but Sen. Lindsey Graham was explicit and correct in describing the legal line Mr. Trump had crossed.

“Prosecutorial decisions should be based on applying facts to the law without hint of political motivation,” Sen. Graham said. “To do otherwise is to run away from the long-standing American tradition of separating the law from politics regardless of party.” Republican Sen. Thom Tillis also came to Mr. Sessions’ defense, citing his “unwavering commitment to the rule of law,” and Sen. Richard Shelby called him “a man of integrity.”

We will put the problem more bluntly. Mr. Trump’s suggestion that his Attorney General prosecute his defeated opponent is the kind of crude political retribution one expects in Erdogan’s Turkey or Duterte’s Philippines.

Mr. Sessions had no way of knowing when he accepted the AG job that the Russia probe would become the firestorm it has, or that his belated memory of brief, public meetings with the Russian ambassador in 2016 would require his recusal from supervising the probe. He was right to step back once the facts were out, not the least to shelter the Trump Administration from any suspicion of a politicized investigation.

If Mr. Trump wants someone to blame for the existence of Special Counsel Robert Mueller, he can pick up a mirror. That open-ended probe is the direct result of Mr. Trump’s decision to fire FBI Director James Comey months into his Russia investigation and then tweet that Mr. Comey should hope there are no Oval Office tapes of their meeting. That threat forced Deputy Attorney General Rod Rosenstein to appoint a special counsel.

As a candidate, Mr. Trump thought he could say anything and get away with it, and most often he did. A sitting President is not a one-man show. He needs allies in politics and allies to govern. Mr. Trump’s treatment of Jeff Sessions makes clear that he will desert both at peril to his Presidency.

The Republican congressional leadership’s failure to repeal Obamacare has led to suggestions that, perhaps, they should have approached their task through “regular order.” Since Congress has not operated under “regular order” at all since 2006, and with decreasing frequency in the decades before that, younger readers, especially, may be excused for not knowing what these procedures are. Far from being arcane ephemera, they are the indispensable catalyst that makes American government responsible to the people. Casting aside “regular order” was essential to the rise of the unaccountable administrative state and the near-sovereignty of party leaders, lobbyists, and bureaucrats.https://amgreatness.com/2017/07/23/restoring-republic-means-reimposing-regular-order/

Herewith, a summary of what “regular order” means, what purpose it once served, why and how it was shunned, and of what has ensued.

More than a half century ago, Daniel Berman’s college-level text, A Bill Becomes a Law, the template for K-12 civics courses, described more or less how Congress had operated since the 1790s. Bills introduced in House or Senate would be sent to the relevant committee, and thence to the proper sub-committee. The ones thought worthy—including those funding the federal government’s operations—would be the subject of public hearings.

The committees’ partisan majorities and minorities would try to stage manage the hearings to make the best case for the outcomes they desired on each point. In the process, public support would strengthen or wane for particular items and approaches. Then, each subcommittee’s public “mark up” of its portion of the bill would reflect the members’ votes and compromises on each item.

Once the several subcommittee products had made their way to the full committee, the same process would repeat. Votes on contested items, and on the whole bill, would end the full committee’s “mark up” and send the bill to be scheduled for action on the House or Senate floor.

Just to get to this point, every element of every bill had to be exposed to public scrutiny. Senators or congressmen on the committees offered amendments and had to vote on the record for each part of the bill. On the House floor, amendments would be limited. But in the Senate, there could be—and often were—“amendments by way of substitution.” By the time the “yeas and nays” were tallied on the final bill, just about all members had had as much of a crack at it as they wanted. The final product would be the result of countless compromises “on the record.”

In 2017, it is useful to recall that this process used to apply to each and every government activity that required a dollar from the U.S. treasury, each and every year. For the past 11 years, however, all the money drawn from the treasury have come from single “continuing resolutions” (CRs) or “omnibus” bills, drafted in secret by “leadership” staffers, executive branch officials, and lobbyists, on which there have been no hearings and which few members have ever read, and on which few if any amendments have been allowed. These “Cromnibuses,” served up as the government runs out of spending authority, end up being passed by the majority party’s near unanimity.

While this is consistent with the Constitution’s words, “no money shall be drawn from the treasury but in consequence of appropriations made by law,” it wholly reverses their intent. Individual congressmen and senators are cut out of the legislative process. The voters can no longer hold each accountable. When Republican leaders make common cause with the Democratic Party against Republicans who won’t go along, whom they accuse of “shutting down the government,” they create a bipartisan ruling party. That makes both parties equally responsible, and ensures that changing your vote from D to R or R to D won’t make a difference.

Senators and congressmen abandoned regular order because it hinders their craving for power and flight from responsibility. Voters elect them to vote accountably on important matters. But since such matters are almost inevitably divisive, they do their utmost to avoid voting on them.

Did Congress learn anything from Lois Lerner ? Judging from Capitol Hill’s self-abasing deference to Special Prosecutor Robert Mueller, the answer is no.

You remember Ms. Lerner. She was the official at the center of an Internal Revenue Service effort that denied conservative political advocacy groups tax-exempt status, or at least held up approval long enough that these groups could not be a factor in the 2012 election.

Back when Republicans were holding hearings on the matter, time and again they were lectured not to do anything that might affect the FBI’s investigation—which eventually ended with no charges against anyone. Though Ms. Lerner was found in contempt by the House for her refusal to testify, it proved all for show.

The tip-off came when then-Speaker John Boehner, rather than use Congress’s inherent contempt power to jail Ms. Lerner until she talked, opted for classic swamp symbolism—by passing the buck to an Obama Justice Department everyone knew would never prosecute her.

The result? Ms. Lerner avoided having to answer any hard questions. The IRS merrily continued to lose or destroy crucial documents. And John Koskinen, the awful replacement IRS commissioner who stonewalled and misled, remains in office.

The Lois Lerner fiasco offers a sobering lesson for a Congress whose various committees are holding hearings on Russia’s intervention in last year’s elections as Mr. Mueller investigates the same. While Mr. Mueller’s office is a watered-down version of Ken Starr’s or Lawrence Walsh’s , it remains true that special prosecutors corrupt even if they don’t corrupt as absolutely as independent counsels. The main headlines of the past week—Is Donald Trump attempting to undermine Mr. Mueller? Will Trump Fire Mueller?—all speak to the challenge a special prosecutor poses to the constitutional authority of the president.

Far less scrutiny has been devoted to the challenge Mr. Mueller poses to the authority of the legislative branch. In this case, ironically, the challenge stems less from the aggressiveness of the special prosecutor than from the meekness of Congress. In between their public tributes to Mr. Mueller’s sterling character, too many in Congress seem to worry more about how they might be affecting his investigation than about what his investigation might be doing to theirs.

One small snapshot: Mr. Mueller, an unelected appointee, had the Trump memos written by former FBI Director James Comey even as the FBI was refusing to release them to the elected representatives of the American people.

When Mr. Mueller was appointed back in May, Sen. Lindsey Graham rightly noted that though he respected the decision, the appointment will “really limit what Congress can do, and it’s going to really limit what the public will know about this.” Alas, the South Carolina Republican went on to say that “we in Congress have to be very careful not to interfere in his lane.”

Certainly representatives and senators shouldn’t set out to frustrate Mr. Mueller’s investigation. But neither should they permit Mr. Mueller to frustrate theirs. CONTINUE AT SITE

Jared Kushner on Monday introduced a useful precedent for the Trump Presidency: comprehensive disclosure. In an 11-page statement released before meeting this week with the Senate and House intelligence committees, the President’s son-in-law and White House aide described his contacts with Russian figures during the campaign and after the election.

The statement to the committees ends with a definitive denial of collusion with the Russians: “I did not collude, nor know of anyone else in the campaign who colluded, with any foreign government.”

The Beltway media are past the point of no return on their collusion odyssey, so there is little chance that Mr. Kushner has put this issue behind him. But as we suggested in these columns last week (“The Trumps and the Truth”), the White House’s best defense against death by a thousand cuts of anonymous leaks is radical transparency on Russia. Mr. Kushner’s statement has provided a template.

There isn’t much in this statement about Russia beyond what we know, but Mr. Kushner expressly rebuts some of the more incendiary news reports of recent months.

The biggest was the recent disclosure of a meeting between Donald Trump Jr. and a Russian lawyer, which was also attended by several functionaries serving as “translators.” About 10 minutes into the meeting, which he calls a waste of time, Mr. Kushner says he emailed his assistant: “Can u pls call me on my cell? Need excuse to get out of meeting.” Aside from the amusement of this extraction effort, Mr. Kushner’s email to his assistant is surely available to investigators for confirmation.

Mr. Kushner also rebuts suggestions that he served as a back-channel conduit between the Russians and Trump Administration, and he denies ever discussing sanctions against Russia with its then ambassador to the U.S., Sergei Kislyak.

In Mr. Kushner’s accounting, the Russian ambassador comes off as a suspiciously eager pest, constantly seeking meetings with the President-elect’s son-in-law. Mr. Kushner says he finally agreed to a meeting that would have set off alarms of skepticism in a more politically experienced person. Mr. Kislyak puts him together with one Sergey Gorkov, “a banker and someone with a direct line to the Russian president.”

An important point is that with this and the other contacts described, Mr. Kushner offers details about what was, and what was not, discussed at these meetings. Up to now, Team Trump has taken the view that because every story is unfair or a witch hunt, they are under no obligation to provide their side of these allegations. Which has left the field open for months to media speculation.

Now we have the Kushner disclosure template. Lying to Congress is a crime, so this statement and its details involve some risk for Mr. Kushner if some other meetings or Russian connections turn up. But if this is all there is, the collusion narrative will have to find another protagonist. The President and other campaign officials could save themselves and the country much grief with similar disclosures.