A series of filings by special counsel Robert Mueller last week raised new questions about the presidency of Donald J. Trump. The documents identify "Individual 1" as directing illegal actions, but only represent the beginning of the criminal process that is unfolding. It's time to ask hard questions about the presidency and what's ahead.
Is the president a crook?
In November 1973, at a news conference President Richard Nixon defended himself before reporters. “I made my mistakes, but in all of my years of public life, I have never profited, never profited from public service — I earned every cent,” the president said. “And in all of my years of public life, I have never obstructed justice. And I think, too, that I could say that in my years of public life, that I welcome this kind of examination, because people have got to know whether or not their president is a crook. Well, I am not a crook. I have earned everything I have got.”
The people have got to know whether or not their president is a crook. Federal prosecutors have now publicly alleged that the answer is yes, the president is a crook.
The key documents come from the two legal channels, filings by the Special Counsel Robert Mueller, as well as additional filings by the U.S. Justice Department prosecutors representing the Southern District of New York. One of the documents is a sentencing memo for Trump’s former lawyer, Michael Cohen.
“The defendant’s crime was serious,” reports the sentencing memo filed by special counsel. “The defendant admitted he told these lies—which he made publicly and in submissions to Congress—in order to minimize links between the Moscow Project and Individual 1 and give the false impression that the Moscow Project had ended before the Iowa caucus and the first presidential primaries, in hopes of limiting the ongoing Russia investigations …”
"In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1," prosecutors said. The damning phrase in these documents is “Individual 1.” That would be Donald J. Trump, the president of the United States. And the documents clearly portray Individual 1 as a criminal boss. (He is also referred to as Chairman 1 in other documents.)
As Dana Milbank wrote in The Washington Post: “‘Individual-1’ has a singular problem: His own Justice Department just said he directed a crime.”
President Trump does not see the story this way. He told reporters over the weekend that he had not read the documents, but that he’s been cleared of “collusion.”
There is a lot we do not know. These documents were heavily redacted. And this part of the investigation has a limited scope. It does not cover, for example, the allegations of obstruction of justice. That’s yet to come.
What’s next in the criminal process?
The special counsel’s case against the Trump team has been methodical, producing more than thirty indictments of individuals and charges against three companies. And that’s just so far.
The documentary evidence about the nature of Paul Manafort’s entanglements with Russian spies is extensive. The special counsel said Manafort has continued to lie to cover up his role. The documents show, including text messages, that Manafort was in contact with the White House officials even after his indictment.
At some point, likely soon, Mueller will bring the investigation to a close. The next step could simply be a public report outlining the criminal activity of Trump. (To use the Watergate-era phrase, the potential “unindicted conspirator.”) That route would leave open the possibility of criminal charges after the president leaves office or impeachment proceedings in the Congress.
A second option, a controversial one, is for the president to be charged with crimes while in office. Legal scholars disagree about whether that’s even constitutional.
Two years ago The New York Times uncovered a memo from former prosecutor Kenneth Starr who was investigating Bill Clinton. “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concluded. “In this country, no one, even President Clinton, is above the law.”
Many other lawyers, however, that the president is immune while in office and impeachment is the only route.
Another intriguing argument was made at 1997 Georgetown Law School symposium by conservative writer Terry Eastland. He disputed constitutional protections for a sitting president, but said the president himself could decide if the prosecution should go forward (such as firing Muller) or reserve the power of the pardon on himself. So the consequences would be political, and not criminal. At least while the president is in office.
What’s next in the political process?
John Dean, President Nixon’s counsel who later went to jail for Watergate-related crimes, said the House now has little choice but to move forward with impeachment proceedings.
“Trump’s is making the long nightmare of Nixon’s Watergate seem like a brief idyllic daydream,” Dean tweeted. “History will treat Nixon’s moral failures as relatively less troubling than Trump’s sustained and growing decadence, deviousness and self-delusive behavior. Nixon=corrupt; Trump=evil.”
Dean was ordered by Nixon to investigate the Watergate case while White House counsel. He went to Nixon in March 1973 and told the president: “We have a cancer within-close to the presidency, that's growing. It's growing daily. It's compounding. It grows geometrically now because it compounds itself. That'll be clear as I explain, you know, some of the details of why it is, and it basically is because, one, we're being blackmailed; two, people are going to start perjuring themselves very quickly that have not had to perjure themselves to protect other people and the like.”
Dean later testified that Nixon himself led the coverup. As Becky Little wrote for The History channel: “President Richard Nixon might have gotten away with it if it weren't for John Dean. In June 1973, Dean testified before Congress that Nixon knew about the Watergate cover-up. Not only that, Dean said he suspected there was taped evidence—and he was he right.”
In his testimony, Dean talked about “a devastating mosaic of intrigue, illegality, and abuse of power.”
A few House Democrats have already called for impeachment, but the Democrat’s leader, Nancy Pelosi, has said she wants facts, not politics, to determine the way forward. This much is certain the new House majority will use its power of oversight, and subpoena, to learn more about the Trump criminal network.
What does this mean for Republicans?
This is a tough one for Republicans. There are three issues. What’s best for the country? What’s best for their future? And, what’s best for the party?
In August of 1974, two days before he resigned, Richard Nixon met with Arizonians Sen. Barry Goldwater, Rep. John J. Rhodes, as well as Sen. Minority Leader Hugh Scott from Pennsylvanian. One version of the story is that three Republicans convinced Nixon to resign for the good of the country. But all three told different stories. Goldwater later wrote that Nixon listened to the three Republicans lay out the impeachment process and "knew beyond any doubt that one way or another his presidency was finished." He wrote, "None of us doubted the outcome. He would resign.”
Rhodes too said Nixon gave the impression that he had already decided to resign before the meeting.
But the Nixon resignation has a significant impact on the Republican Party, that will be in the thinking of those in politics. The election after Watergate was a washout; Democrats picked up 49 seats in the House.
It also led to a number of institutional reforms, such as the creation of Inspector Generals.
In July Sam Berger and Alex Tausanovitch wrote for the Center for American Progress: “The post-Watergate reforms were far-reaching. They sought to restore faith in the U.S. political system by combating the corrupting influence of money in politics; promoting ethics and transparency in government; protecting people against abuses of government power; and limiting certain extraordinary exercises of presidential authority. Laws passed in that period have transformed, among other things, the federal budget process, government practices for protecting individuals’ personal information, and oversight of the intelligence community.”
What’s next could be an era of reform -- and that could be good for Indian Country. “The post-Trump moment will likely present opportunities for significant reform across a broad range of policy areas, allowing policymakers to tackle deeply rooted problems that have previously proven difficult to address,” As Berger and Tausanovitch write. “Second, it is critical that policymakers begin planning now how to connect the wide-ranging scandals of the Trump administration to appropriate reforms.”
Watergate also changed the Republican Party. During much of his presidency, Nixon did not govern as a conservative. His 1970 message to Congresson Indian Affairs, for example, was similar in tone and content to a message from President Lyndon B. Johnson. But Nixon, unlike Johnson, used the power of the White House to push the reforms forward, many becoming law.
“Watergate, of all things, brought conservatives back into the fold. The emerging scandal absorbed the administration not long after Nixon’s second term began,” wrote Vox columnist Nicole Hemmer, an assistant professor at the University of Virginia’s Miller Center. “For a generation of mainstream journalists, the scandal would confirm the power of the press to serve as a check on corruption, no matter how powerful the perpetrator. For conservatives, however, the scandal and the press’s role in prosecuting it looked much different. They saw the press as trying to undo the decisive results of the 1972 election. And if the media was so terrified of Nixon, then maybe there was something to the man after all.”
Trump’s supporters will not be convinced any differently no matter what the evidence shows.
However, Rep. Tom Cole, Chickasaw, has said he will follow the evidence. He told CNBC Friday that Republicans should not retreat into “a fantasy world” that assumes Trump’s predicament is not both disturbing and hazardous for the GOP. He said Democrats should be careful not to move too fast either. “If something comes out that is clear and convincing and impeachable, I think members will act,” Cole said.
How should tribal governments respond (if at all)?
The next couple of weeks could be tricky.
A few federal spending bills are still waiting for action by Congress, including money for the BIA and IHS. The deadline is December 21. House Republicans have their last shot at using the budget for policy riders, such as attacking Planned Parenthood or funding the “border wall.” Any deal will need to include Democrats -- as well as the president. Failure to pass a budget will mean another government shutdown.
And tribal relations with the United States are complicated by a competing scandal. The Interior Department’s inspector general is looking into Secretary Ryan Zinke’s real estate dealings in Whitefish, Montana, and another looking into a decision regarding gaming for two Connecticut tribes. The Washington Post reported last month that prosecutors at the Justice Department are reviewing the inspector general’s findings for possible criminal violations.
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter -@TrahantReports