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David Dayen: Why Trump Didn't Have to Obstruct Justice: The US No Longer Holds the Powerful Accountable

Posted by Neil Garfield | May 24, 2017

By David Dayen

Administration is in crisis. Successive scandals related to possible collusion with Russia and obstruction of justice have put talk of impeachment in the air. Beyond those parallels to Nixon, anti‐Trumpers are giddy about the legal pressures building on Michael Flynn, Paul Manafort and a "person of interest" inside the White House, who knowledgeable people assume to be son‐in‐law/senior undersecretary for everything Jared Kushner.

But before champagne corks pop in Manhattan and Berkeley and other capitals of liberal America, people might want to consider the government's track record of holding elites accountable over the last decade. It's not a pretty picture from the standpoint of justice or fairness. That's what makes Trump's firing of James Comey from the FBI because (by his own admission) of the encircling Russia investigation so confounding. Not only was it likely criminal, it was wholly unnecessary, because America doesn't prosecute anyone with money or power anymore.

The Comey Firing Proves We Need Two Special Counsels, Not One

I'm not saying there are no avenues of inquiry, or that Trump and his men have cleverly masked their tracks to frustrate accountability. They clearly haven't, particularly with respect to the cover‐up, if not the collusion to meddle in the presidential election itself. Comey reportedly took meticulous notes about his meetings with Trump and the president's efforts to tamp down the Russia probe; his testimony before Congress next week could be a blockbuster. And simply acquiring the Voice over Internet Protocol (VoIP) records of relevant conversations among White House officials could yield mountains of damaging evidence.

But much has changed since Charles Kushner, Jared's father, went to jail in 2005 for tax evasion and witness tampering. The greatest area where this is visible is in white‐collar crime, where the defendants most typically have the money and resources to take on the Justice Department, and come away unscathed almost every time.

I acknowledge that failure to prosecute white‐collar crime is different from the Trump/Russia investigation, with its political overlays and possible compromising of national security. But in other respects, the pitfalls are the same: rich offenders who will summon a phalanx of lawyers to plead for leniency, spooking prosecutors with the prospect of endless arguments at trial and whispers of betraying their own class. White‐collar crime is only the most prominent example of elites having a different justice system; I could have easily highlighted sexual assault or double murder. Heck, for decades Trump has waltzed through life breaking laws with impunity.

The changing priorities around white‐collar crime sync up perfectly with DoJ going soft on rich targets, while brutally punishing anyone without the means to fight back. Under the leadership of newly appointed special counsel Robert Mueller, the FBI shifted money away from white‐collar investigations amid a monomaniacal emphasis on anti‐terrorism. Prosecutors became consumed with collateral consequences as an excuse to not go after corporate crime. Justice Department attorneys grew desperate to not lose a case and therefore focused only on the ones they knew they could win, or resorted to settlements with large headline numbers paid by shareholders to stand in for accountability.

As a result, the institutional memory of how to undertake white‐collar investigations. Simple tasks like flipping witnesses and working up the chain to hold senior managers responsible practically don't exist anymore. That's how we got the absurdity of a world‐historical financial meltdown with virtually nobody in a position of authority prosecuted for the crimes that led to it.

The FBI merely conducts investigations. But if Mueller was disturbed by this breakdown in the rule of law during his 12 years running the bureau, he's sure been quiet about it.

The Trump‐Russia Investigation Could Clog Up DC for Years

In 2004, Mueller's FBI of an "epidemic" of mortgage fraud, which would have "as much impact as the savings and loan crisis." It turned out far worse, because nobody in law enforcement did a single thing to stop the fraud. Also under Mueller's leadership, the FBI launched a significant investigation into millions of false documents employed in foreclosure cases nationwide, phony evidence used to kick people out of their homes illegally. Only one person went to jail for that, and nobody from a mortgage company who actually ordered the documents.

This pattern of virtual immunity resonates even more because much of the Trump/Russia investigation involves "financial crimes." Manafort's obviously dodgy real estate loans have drawn federal subpoenas, as have Flynn's business payments from foreign outlets. Trump's business ventures using Russian funds are emerging as a point of inquiry. So the case is drifting toward that type where the wealthy always have the upper hand, and the outgunned, timid, unprepared law enforcement establishment would rather not make waves.

Tillerson and McMaster Put Their Credibility on the Line for Trump

Since leaving the FBI, Mueller has, like many federal prosecutors before him, moved directly into Big Law. At WilmerHale, Mueller's former colleagues represent Manafort, as well as Kushner and his wife, Ivanka Trump. Liberals are crying foul that the Justice Department is investigating whether Mueller can comply with ethics rules by participating in cases involving his former firm. But it's not Mueller's entanglements that are the real issue. It's a question of mindset — of the way partners at a corporate law firm have all the same clients and all the same friends. When they become adversaries across the negotiating table, that kinship remains.

And remember, Mueller may be a special counsel, but he's not fully independent, which could weigh on his mind when considering charges. Rod Rosenstein, the top official at the Justice Department with oversight, could simply overrule Mueller on key decisions, creating more outside pressure. Clearly the president has not shown reluctance to just can a law enforcement official who gets too close to him. But even without that, the Justice Department controls Mueller's budget, and resources are key to a complex financial fraud investigation.

Trump Doesn't Understand the Rules of the DC Game

Before considering something as far‐fetched as prosecuting a sitting president, look how a major case into very similar topics recently concluded. The government had pursued a major money‐laundering scheme by Russian oligarchs using shell companies and Manhattan real estate for about four years. Suddenly last week, they agreed to settle the suit for a mere $5.9 million, with no admission of wrongdoing or individual prosecution. Even the lawyer for the company settling the claims had to boast, "This settlement is nothing short of a victory… it's almost an apology by the government."

This was the best potential window into how Russian‐led money laundering works, something with obvious potential relevance for the Trump/Russia case. The government just settled it, I suppose because it didn't involve a minority selling marijuana.

The heat of a special counsel investigation could accelerate a political outcome, though Republicans haven't budged in their support of the president thus far, and rampant political polarization points to no rupture in the future. In fact, the special counsel could even complicate parallel probes into the Russia case inside Congress, with everything flowing up to a criminal investigation, the likes of which just haven't worked out in recent years.

A refusal to sever ties with Trump will probably hurt Republicans in the midterms. But the hoopla over the Trump investigation isn't just about politics but about holding people at the highest levels of power responsible for their actions. We just don't do that anymore in this country. I'd love for Mueller to prove me wrong. But he has a long history of prosecutorial shame to overcome.

 

 

 

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