From Our Friends Down Under at Justinian...

The Obstructionist-in-Chief

ROGER FITCH ESQ • WEDNESDAY, MAY 8, 2019

Three Pinocchios for Billy Barr ... Mueller's 11 obstruction findings ... Charging and indicting Trump ... SCOTUS takes on cultural issues with new term cases ... Invalid orders of a compromised military commission judge ... Noam Chomsky on how the US political system works ... From Our Man in Washington, Roger Fitch 

"[It's] unlikely that President Trump is a recruited and controlled source of the Russian intelligence services ... Yes, he is a cauldron of potentially exploitable vulnerabilities. He is greedy, has lax morals and shame, isn't particularly patriotic, has a difficult time with right and wrong and is easy to manipulate. He would be easy to exploit and entice into ... a conspiratorial relationship [but] ... impossible to control. His narcissism, poor memory and ego would make it all but impossible for him to follow directions and keep a secret ... He blathers about things he doesn't understand, never admits that he is not an expert, is loathe to admit mistakes, lies constantly and is barely intelligible ..." - John Sipher, CIA's former head of Russian operations.  

IN his full report, Special Counsel Robert Mueller found no legally-culpable Russo-Trump conspiracy (many questions remain unanswered) but there was evidently collusion in the shared objective of electing Trump, quid pro quo or not. Also, AG Bill Barr's gratuitous prequel - pre-emptively acquitting Donald Trump of obstruction - now seems the act of a Nixonian Attorney General.

Barr has form for suspicious redactions of  DoJ memos, and the Washington Post Fact-Checker gave his pre-Mueller epitome Three Pinocchios.

The Attorney-General misrepresented Mueller's report in important ways.  Chief among them was implying that Mueller found no obstructions of justice. In fact, Mueller found eleven potential obstructions and asserted his belief that presidents could be charged with obstruction (their lawyers should also be concerned), but he made no prosecutorial recommendation. More here.

It seemed an "indictment in all but name", with a smoking gun, but Mueller stopped short of a formal finding of obstruction, on the circular grounds that, under DoJ ruling opinion, Trump could not be legally indicted, and recommending charges would thus be "unfair". Some strongly disagreed, including 650+ ex-federal prosecutors.

The report would have sunk any other president, but Trump remains standing, though under investigation in the Southern District of New York, among other places.  

Even if the Russian conspiracy fizzled, the report provided an impeachment referral, an obstruction "road map" that Barr tried to conceal.

The subject of this attention, serenely unaware of the constitution's impeachment provisions, moved on to the obstruction and stonewalling (more here) of congress, where Democrats aren't doing much anyway.   

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SCOTUS: the columns are Corinthian 

The last cases of the supreme court term were argued in April, including the important census and agency deference disputes. The court heard, and appeared ready to uphold, the "separate sovereigns" exception to the Constitution's double jeopardy clause. 

Cases already decided include Lamps Plus, another anti-worker pro-business arbitration ruling by the politically-divided court.

In its next term, the newly-remodelled supreme court will take on cultural controversies, e.g, whether sex discrimination includes LGBT rights, a hot textual topic for the "originalists" Gorsuch and Kavanaugh. 

The president must "faithfully uphold the law", but in a 5th circuit appeal, Trump's DoJ has changed sides to defend an off-the-wall Texas federal court decision declaring Obamacarewholly unconstitutional. 

The 2nd circuit is considering Trump tweets, with the president asserting a right to bar uncongenial tweeters from his Twitter site. 

The conservative 6th CA has joined other circuits, striking down appalling partisan gerrymanders in the Trump heartland of Michigan and Ohio.  It's a constitutional breakthrough that may not last.

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Department of Justice, Washington: with protesters

Hopefully, some readers will have heard about a "no good, very bad day" for Guantánamo's military commissions, when the DC circuit threw out 460 written orders of a MC judge who presided over a case staffed and funded by the Justice Department, while he concealed, with prosecution assistance, his concurrent negotiations with DoJ for an immigration judge position.

Lawfare and Noah Feldman have more on the latest failure of the Pentagon's simulated justice. 

Other points of interest:

• most media failed to report a shocking Pentagon proposal to send unaccompanied migrant children to Guantánamo internment camps;  
• the Gitmo prison commander has been fired, perhaps for talking up humane treatment;
• the 9/11 Commission prosecutor revealed a few details on CIA black sites, but the defendants want more: the 6000-page Senate torture report; 
• rectal rape and other CIA torture continue to haunt the commissions;
• the ACLU is suing the CIA in an effort to find the body of Gul Rahman, who died under torture;
• 15 years after Abu Ghraib, the 4th circuit has rejected the unqualified "political question" defence proffered by a US contractor accused of torture in Iraq, in the ATS case of Al-Shimari v CACI;
• the Pentagon is attempting in spite of torture to bring "war crimes" charges against the Bali bomber, Hambali, though the crimes have no connection to war and (compared to Australia) little to the US;
• commissions are debating when the war began, years after de facto "law of war" detention began.

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Chomsky the Younger: how Republican politics works 

For those who wonder how Republicans prosper and endure under "a mendacious narcissistic bigot who lost the popular vote by 3 million votes", Noam Chomsky has a convincing explanation: 

"Republicans face a difficult problem. They have a primary constituency [of] extreme wealth and corporate power. That's who they have to serve ... You can't get votes that way, so you have to do something else to get votes. What do you do to get votes? This was begun by Richard Nixon with the Southern strategy: try to pick up racists in the South. [In] the mid-1970s ... Republican strategists hit on a brilliant idea. Northern Catholics voted Democratic ...  a lot of them working-class. The Republicans could pick up that vote by pretending ... to be opposed to abortion. By the same pretence, they could pick up the evangelical vote ... You go back to the 1960s, ... [t]he Republican Party ... position was: Abortion is not the government's business ... They turned almost on a dime in order to try to pick up a voting base on ... cultural issues.

Same with gun rights. Gun rights become a matter of holy writ because you can pick up part of the population that way ... [They] put together a coalition of voters based on issues ... the establishment ... don't like ... 

And they've got to hold that, those two constituencies, together. The real constituency of wealth and corporate power, they're taken care of by actual legislation ... lavish gifts to the wealth and the corporate sector - the tax bill, the deregulation ... Meanwhile, Trump has to maintain the voting constituency, with one outrageous position after another that appeals to some sector of the voting base. And he's doing it very skilfully." 

Postscript: Trump will pull out of the Arms Trade Treaty limiting trade with terrorists. The troubled NRA, an organisation more terrorist than charitable, according to NY's AG, doesn't like it.