I have been chewing over the Mueller report for four days now and I still have trouble coming to terms with it. Journalists have been saying how pleased they are that it confirms so many of their findings. But that is part of the problem. It looks like it could have been written without the resources of a special prosecutor's office just by reviewing all the information that was available on the public record. But the Mueller report was supposed to link the dots not merely review them. To do so, it was supposed to use its subpoena powers to grab hold of Trump’s tax returns and the records of Deutsche Bank to see whether there had been a basis for blackmailing the man who would become president. The Report stays mum on whether it investigated those leads. If it had, it might have cleared the President of suspicion but instead it just leaves us with our suspicions intact: that there were too many contacts with the Russians for there not to have been something fishy going on. Not having resolved that leaves the public in limbo, not knowing more than it did before, however much the Report is declared either to exonerate or not exonerate the President. The Report was to develop the facts and leave conclusions to the Congress which could decide whether any of the offenses were impeachable, never mind whether they were criminal or not, which is a far less important question, even if the Special Prosecutor law makes that the aim of the inquiry. We want to know what the Russians were doing with and without Trump and the New York Times is a more lucid guide to that than is the Mueller Report which is boring reading, piling one fact on another but not having much narrative drive. Some commentators have taken comfort from the fact that the Report shows the White House to be a sleazy place under this President. He is out to aggrandize only himself and seems to be a woefully poor executive, unable to put his meaner or more malevolent schemes into operation. But we already knew that and those shortcomings do not constitute an impeachable offense. Moreover, Trump does do some of the things he cares about. He makes life miserable for people crossing the southern border looking for asylum and many of his supporters like him for doing that. So he did deliver on that promise even though he hasn’t been able to deport the eleven million undocumented aliens currently in the United States, something I feared he would try to do when he took office. He just can’t get a handle on his own bureaucracy.
Maybe the problem with nabbing Trump is the Special Prosecutor statute under which this investigation was set up, where there is some disagreement among legal commentators about whether it is to fact find for the benefit of Congress or only to pursue criminal charges when those are warranted. The first goal is subverted by the second because prosecutors are not able to reveal information or opinions if they do not bring charges, even though that is just what James Comey did when he declined to prosecute Hillary Clinton. The United States has not been successful in its various versions of a special prosecutor statute. Yes, Nixon was nabbed, but that was because Judge Sirica threatened to throw the book at the Watergate burglars if they didn’t fess up, which went beyond his judicial discretion, and because the Senate Watergate Committee was so assiduous in its work. The special prosecutor who went after Irangate could not crack through the wall of silence set up by Caspar Weinberger, then the Defense Secretary, and others. Weinberger apparently had in his desk drawer a log of his meetings when he told then entitled Independent Counsel Lawrence Walsh’s representative that he had no information on the travels of Oliver North. Kenneth Starr had to reach to a charge sneaked in over the transom by Linda Tripp to find something with which to charge Bill Clinton. And Mueller comes up with a nothingburger. So maybe, in the future, we should get investigations only by Congress, and if they aren’t interested, then nothing much can be done anyway.
The other annoying thing about the Mueller Report is that it doesn’t decide what it thinks about possible obstruction of justice charges that might be brought against the President and his associates. But that is probably just as well. Lawyers can argue all they want about whether the intent to obstruct constitutes the crime of obstruction, and federal prosecutors had no trouble indicting and convicting Martha Stewart for lying to them even though they could not prove any underlying crime, but lay people have a higher standard when it comes to whether obstruction is truly obstruction. Trump can hardly be obstructing justice if he is so candid about it. He bloviates regularly and in full view of the cameras about what he would like to do to his enemies. How could that be obstruction? He is either expressing his opinions or giving orders that are not obeyed. It can’t be a crime to ask an official if he can go easy on a fine fellow like Michael Flynn. That is just going out of one’s way to aid a friend. No, obstruction has to be something done in secret and that is illegal in itself. Nixon arranged for money to be given to criminal perpetrators so as to keep them silent. That is obstruction.
It is even questionable whether whatever Trump done can be thought the result of the legal concept of “intent”. Trump just expresses himself and says the opposite thing the next day. He has no need to be consistent and doesn’t the concept of “intent” carry with it the idea of a plan sustained enough to carry it out? To use a more philosophical conception of “intent”: intent is the kind of motive that has to do with an aim to be achieved in the future and is different from other emotions which are motives without being intents. We intend to take the bus to work; we are motivated by having had a fight with the boss to be depressed about work and so we miss the bus. It was not our intent to miss the bus. Trump has loads of motives, most of them mean spirited,and he may even have the intent, sometimes, of keeping his secrets to himself, but most of the time he just lets them hang out there because his motives overtake his planning. Is such a person capable of the legal crime of intent to obstruct? Better to do as Mueller did, which is to let the whole matter drop. This Trump guy is just too difficult or deficient a character for the legal mind to handle.
Anyway, the whole Mueller Report, two years in the making, is anticlimactic in the dramatic sense that so much buildup requires more of a revelation, more of a payoff, to maintain the interest of an audience. Otherwise, the audience has been led astray and is no longer inclined to trust to the author’s presentation of a reality that is at least internally consistent to both life and the laws of drama. If you build toward a revelation, as Sophocles did in “Oedipus Rex”, then deliver on it, and that is certainly what Sophocles did. Who cares if Trump stretched the truth one more time or if so and so met with so and so? Drop the whole thing and get on to something else. Jerry Nadler can huff and puff but he is just asking us to taste yesterday’s pudding. The Democrats should just drop the whole thing because if not even Mueller could find all that much wrong with what Trump did, then Congress will hardly be able to find a bipartisan coalition to say he did. It is not like during Watergate or after the Kennedy Assassination when for years people were fascinated with all the characters and all the alternative scenarios. Let us move on, instead, to something that is always both diverting and consequential and is also the right way to get rid of an unsatisfactory President: politics.
Richard Nixon said in 1960 that political campaigns depended on peaking just before the election while Jack Kennedy said in 1960 that you had to go all out from start to finish, and he certainly worked the campaign trail hard from start to finish so that, I think, by the time of the Democratic Convention, he had become a rock star. I don’t know what drama critic or political scientist either of them consulted to arrive at their conclusion though maybe they were only consulting their own gut feelings as people who had, after all, engaged in campaigns before. The thing is that political campaigns do depend for their success on the drama that is built up by a candidate. Donald Trump certainly knew that because everybody looked forward to how he would diminish another one of his primary rivals by finding nicknames for them and the collective inability of his opponents to find a way to answer him. Rather than defending her looks, something no woman should have to do, why didn’t Carly Fiorina go after Trump for showing himself to be a misogynist and so not worthy of high office, and certainly not of the support of evangelicals who claim to put women on pedestals? Well, those are the dramas of the past and I don’t think we can reinvent showing Trump to be a person of bad character because everybody knows he is, including his supporters, and so the question is where is his vulnerability.
Presidential political campaigns get fought on battle grounds that the candidates think will resonate with the public. If it isn’t Trump’s character, Democratic candidates can explore whether it is on issues such as health care or climate change or just presenting a pleasing personality, the last of which seems to be Amy Klobuchar's main appeal, just as being clean cut is Mayor Pete’s claim on the public. The point is that none of the Democratic candidates so far has presented himself or herself as a rock star or as standing out from the crowd because of some other attribute, as Barack Obama did by being just cool and graceful and reasonable even if he didn’t have much to say that made him superior to Hillary Clinton who was, as Obama so mercilessly put it, just “attractive enough” as a candidate.
Well, it is still early. I, for one, am hoping that Joe Biden will immediately emerge at the top when he declares and stay there because he so clearly has the experience to be President, and that should count for a lot, given that Trump so clearly was ill prepared for office and not smart enough to learn how to occupy the office with any authority once he got there. Too many of the candidates sound too glib and have too many gaps in their portfolio. Not Bernie nor Elizabeth Warren nor the young people offer anything in the way of foreign policy chops, and we don’t know for how long we can get away with having a President who has no insight into those matters. Sorting through the candidates means hearing which ones of them provide incisive remarks or give comprehensive speeches or, on the spot, hit defining moments, as Bill Clinton did with his Sister Souljah moment. That is the true drama: waiting for something to happen and not knowing what it will be and yet everyone out there in the audience knowing when it has happened and so recast the entire storyline of the campaign in a different direction, quite aside from those external events that might intrude, as happened when the financial crisis of 2008 showed McCain not up to the challenge of dealing with domestic events. I have been following Presidential politics since 1948 when, naive and optimistic person I was then and still am, I thought Henry Wallace could carry New York State. That was drama. No wonder I still have not had enough of politics.