Mueller is waiting to make his report until after the midterms. That could be a huge mistake.

Mueller in 2012.
Mueller in 2012. White House photo)

Special counsel Robert Mueller is widely thought to be on the brink of issuing his findings — in the form of indictments, a report, or both — related to the most significant allegations against Donald Trump.

According to Bloomberg reporters Chris Strohm, Greg Farrell, and Shannon Pettypiece, “Mueller is close to rendering judgment” on whether there was collusion between Russia and Trump’s campaign and whether Trump obstructed justice — but he’s planning to wait until after the midterms to act on his findings.

This is presumably at least in part due to Justice Department tradition (rather than a firm guideline) that prosecutors avoid dropping politically-sensitive bombs close to elections. The intent is to maintain the appearance that law enforcement is entirely free of political considerations. And while that may sound quaint in this day and age, it remains very much the case that for prosecutors to act with the intent of influencing an election would be a dangerous and deeply troubling abuse of power.

But if Mueller has collected overwhelming evidence that the Republican Party and/or its leader have been complicit in serious crimes, doesn’t the public deserve to know now, before the election?

So consider this possibility: Republicans retain the Senate in the midterms, giving them the power to confirm any Trump appointee they want, and when Mueller finally decides to share the information he has collected, it is so profoundly damning that it might indeed have tilted the election.

In that case, isn’t not acting actually the worse sin?

The specter of former FBI director James Comey is surely haunting Mueller and affecting his thinking. But there are actually two takeaways from Comey’s unprecedented, unilateral decision to share his take on the Hillary Clinton email case four months before the election – and then announce a new review with only 11 days to go.

One takeaway is what a catastrophic error it is to think you know better than everyone else. Comey’s self-appointment to the role of Only Trusted Man in Washington backfired spectacularly and caused enormous damage to the FBI’s reputation – and of course Hillary Clinton’s campaign.

But the other takeaway is that there is in fact a need for a “public interest exemption” of sorts, when law enforcement is keeping secret important information that the public deserves to know.

Sen. Elizabeth Warren, for instance, wrote a letter to Comey after his initial announcement noting his view that “the American people deserve those details in a case of intense public interest” and asking him to extend this new standard to the criminal investigation of the 2008 financial crisis.

I would argue that a public interest exemption could be especially appropriate before a critical election.

In Mueller’s case, it wouldn’t even be a matter of releasing potentially inappropriate investigative material, it would just require him not to delay the exercise of his duties.

And most people don’t seem to recognize that Mueller’s big reveal is likely to be epic, because he’s not simply pursuing a criminal matter, he’s also running a counterintelligence investigation. (Read my article about that.)

Counterintelligence investigations are vastly more expansive –as are the reports on their findings. In a criminal investigation, the only goal is indictments. In a counterintelligence investigation, the goal is to tell the whole story of what happened, to prevent it from happening again.

Mueller’s decision reminds me of a spectacularly bad one by the editors of the New York Times, before the 2004 presidential election. They suppressed the story by James Risen and Eric Lichtblau exposing George W. Bush’s warrantless wiretapping program until well after the election. Imagine if they hadn’t.

And Mueller’s move could also prove particularly problematic given that Trump has his own midterm calculus. He’s telegraphed quite clearly that he is prepared to get rid of Attorney General Jeff Sessions after the elections. And that alone could easily hamstring, derail, or end Mueller’s investigation.

Sessions recused himself from overseeing the Mueller investigation because he had an obvious conflict. But his replacement, once confirmed by the Senate, presumably would not have any such conflict — and would therefore take control of the Mueller investigation back from Deputy Attorney General Rod Rosenstein.

In Trump’s case, not pulling the trigger is the best of both worlds. He avoids a pre-midterm mobilization of a progressive base that is literally ready to take to the streets on a moment’s notice, should he overtly interfere with the Mueller investigation.

At the same time, he and Republican enablers like Sen. Lindsay Graham have done enough advance work that Trump’s firing of Sessions – at the very least – is considered a foregone conclusion by the political media.

The result is that when Trump does fire Sessions, it will be widely covered as an “I told you so” story more than a “this is outrageous” story – even if it puts Mueller’s investigation in great jeopardy.

Mueller’s decision to keep silent until after the election has elicited almost no criticism in the mainstream media, presumably because “serious people” consider it the “responsible” thing to do.

So thank goodness we have the Onion to put the move in its proper perspective, asking “regular Americans” what they think of it:

The death of Jamal Khashoggi reveals a universal truth about torture

Torture at Abu Ghraib
Torture at Abu Ghraib

Reports from Turkish sources suggest that dissident Saudi journalist Jamal Khashoggi was beaten and tortured to death. It’s not clear at what stage in his dismemberment he actually died, but in audio captured by the Turkish authorities, he reportedly can be heard screaming as his fingers are chopped off.

Khashoggi’s killers evidently didn’t ask him questions. After he entered the Saudi consulate in Istanbul, there was no pretense of interrogation.

His killers were there to exact punishment and revenge.

It’s an unimaginable scene of horror. My fingers shake with rage and sorrow as I type this.

But Khashoggi’s treatment also reveals a universal truth about torture. People don’t torture to get information. There are effective ways to do that, and torture isn’t one.

Fundamentally, torture is about power, revenge, rage and cruelty. It’s about stripping people of their humanity.

And that’s why torture is so abhorrent. That’s what it is (almost) universally condemned as a human rights violation. That’s why it is (almost) always the mark of totalitarian regimes that want to control people.

Professional interrogators use methods that have been proven to work. They do not use tactics reverse-engineered from training to resist the kinds of methods the Chinese Communists used to extract false confessions from captured U.S. servicemen that they could then use for propaganda during the Korean War.

But those and other brutal tactics were precisely what George W. Bush, Dick Cheney and Donald Rumsfeld let loose in the wake of the 9/11 terror attacks, to spread through the U.S. military and intelligence services like a virus, to Afghanistan, Iraq, to the CIA black sites in Thailand, Poland, Lithuania and Romania, and to the Guantanamo Bay prison in Cuba.

Air Force Reserve Colonel Steve Kleinman recalled to Jane Mayer, in her book “The Dark Side,” that he was sent to Iraq in the fall of 2003 because he was an experienced and accomplished interrogator – and was horrified to find that military-CIA task forces were abusing prisoners instead.

Kleinman tried unsuccessfully to put an end to it. And as he told Mayer, “I got into serious arguments with many people. They wanted to do these things. They were itching to. It was about revenge, not interrogation. And they thought I was coddling terrorists.'”

The first time the American public actually saw torture taking place it had nothing to do with interrogation at all, only misplaced punishment and revenge. That was when photos from the Abu Ghraib prison in Iraq were published in April 2004. And that was hardly the beginning or the end.

Nor was it an accident or the work of “bad apples.” As a mostly forgotten bipartisan Senate Armed Services Committee report concluded in 2008:

The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at [Guantanamo]. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.

Most people still probably think that torture at the direction of government officials only occurred at the CIA black sites. But that’s because of the success of the Bush Administration’s five-year disinformation campaign to hide the direct line between its policies and what happened at Abu Ghraib, and between Abu Ghraib and elsewhere. Because in those other instances, they couldn’t even pretend that the torture was necessary to extract intelligence.

After the 2014 release of the redacted executive summary of the Senate Intelligence Committee’s report into torture at the CIA black sites, it became even clearer that torture was completely ineffective as a method of interrogation and was extraordinary brutal — beyond any conceivable moral justification. And it happened during a period when many of the advocates and actors were feeling impotent in the face of an attack on the homeland, and angry at the Muslims they felt were responsible..

So why do it? The obvious answer is that it was ultimately for the same reasons the Saudis tortured Khashoggi: For revenge.

The president has entirely too many lawyers (and not just this president)

Don McGahn at the Republican National Convention {One America News)
Don McGahn at the Republican National Convention {One America News)

As Don McGahn departs from his job as White House counsel, I’m reminded of an interview I had a few weeks back with Yale Law School Professor Bruce Ackerman, one of the most astute observers of the presidency I know.

I asked him what his number one post-Trump reform would be, and he didn’t hesitate for a second. “Abolish the White House counsel,” he said.

Ackerman, who has been eloquent about the danger to our constitutional system presented by an uncontrollable, bloated executive branch – see his 2013 book, The Decline and Fall of the American Republic – considers the modern White House Counsel’s Office ground zero for the continued expansion of executive power.

“They’re the ones who are the source of one after another ‘creative interpretation’ that build on each other from term to term — always in the same direction,” Ackerman said. They see their job not as neutral legal advisors, but as trying to create the best legal case for the president, he said.

“That’s not the rule of law.”

“One ‘creative opinion’ is the basis for the next,” he said. “This is a one way ratchet.”

As a result, the outlines of what Ackerman calls “executive constitutionalism” are not determined by the Supreme Court, but by a few dozen not particularly experienced, but very smart and extremely loyal lawyers, who are completely replaced with every new president.

Unburdened by institutional memory, fueled by ambition, “they can create very imaginative opinions,” Ackerman said.

But isn’t abolishing the office a bit dramatic? No, says Ackerman.

In fact, the president’s lawyer is supposed to be the attorney general, who oversees a vast staff of long-serving legal experts with institutional memory. The Office of Legal Counsel (so badly abused by Dick Cheney) is housed there, specifically charged with acting as constitutional counsel to the entire executive branch, and primarily the attorney general and the president.

Unlike the attorney general, the White House counsel doesn’t require Senate confirmation, can’t be held accountable by congressional committees, and operates with no transparency.

(I recently found a 2016-era White House Transition Project document on the White House Counsel’s Office, which quoted Carter administration attorney general Benjamin Civiletti stating in 1999 that “the White House Counsel’s Office is an abomination, structurally inefficient, lots of potential for conflict because of its political nature. If the president has a trusted person who can give him confidential advice, keep that person out of government.”)

Ackerman points out that the counsel’s office – like many of the other trappings of the imperial presidency – is a 20th century invention.

“Such a person never existed until Franklin Roosevelt,” Ackerman notes.

Nixon’s counsel, John Dean, was the first to have a staff. According to one accounting, Lloyd Cutler, in 1980, had six lawyers working for him. Fred Fielding, in 1986, had around 10.

I counted 25 members of the legal counsel’s office on the George W. Bush 2008 White House staff list. I counted 36  on the Obama 2015 staff list.

Last March, the White House announced the names of 26 lawyers working for McGahn, for a total of 27.

Ackerman said he saw a big turning point in the use of the White House counsel’s office during the Obama administration – particularly when Obama decided he didn’t need congressional authorization to keep bombing Libya or when he expanded the battle against terrorism to the Islamic State in Iraq and Syria.

As Charlie Savage reported for the New York Times in June, 2011:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations….

Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Ackerman started calling for the abolition of the counsel’s office long before Trump. Here he is arguing the position in 2009, in Slate.

Working out of the political hothouse of the West Wing, the person serving as White House counsel will require remarkable backbone to resist pressure to rubber-stamp legally problematic aspects of the president’s policies.

Ackerman wrote then that Gregory Craig, Obama’s first counsel, “may well possess the requisite integrity.” But as I wrote for the Huffington Post in 2010, then-chief of staff Rahm Emanuel quickly pushed Craig out in order to more easily make legal calls on political grounds.

So far, at least, the most outrageous legal assertions about the Trump White House have come from his private, rather than White House lawyers. John Dowd and Jay Sekulow wrote the letter asserting that a president was literally incapable of obstructing justice, not Don McGahn.

McGahn, in fact, has had a complicated relationship with Trump. On the one hand, he’s been an unflinchingly loyal fighter for stacking the bench with far-right judges and justices – it was he who talked Trump out of letting the FBI conduct a reasonably broad inquiry into the sexual assault allegations against Bret Kavanaugh, instead ordering a sham investigation that gave Republican senators cover to confirm him.

At the same time, McGahn has been caught bragging about his role in restraining the explosive boss he called “King Kong” in private, has been a key witness in Robert Mueller’s investigation into Trump campaign collusion with the Russians — and found out about his upcoming resignation via a Trump tweet

So the key question hanging over McGahn has less to do with creative legal arguments, and everything to do with whether he kept Trump from criminally obstructing justice — or aided and abetted him.

Trump emits a blast on the racist dog whistle to stoke division before midterms

Donald Trump is sending his vice president out to stoke as much division in America as possible before Election Day, by advocating the cruelest of measures: letting poor men, women and children go hungry.

The story Politico Playbook says is “driving the day” is that Mike Pence will lead “a public push for Congress to pass a farm bill with work requirements for food stamps.”

Food stamps (technically the Supplemental Nutrition Assistance Program, or SNAP) help 43 million low-income Americans afford a nutritionally adequate diet.

As Alexia Fernández Campbell recently wrote for Vox, “Very few Americans enrolled in these programs don’t work because they don’t want to (an estimated 1.1 percent of Medicaid users and 0.3 percent of SNAP recipients). Instead, they don’t work because they are elderly, disabled, caring for relatives, or recently lost their job.”

Nevertheless, Trump wants to make a massive push in the next few weeks for what the Huffington Post’s Arthur Delaney, who has been tracking attacks on the poor for nearly a decade (bless his heart), correctly labels “a moralistic time limit on benefits that cuts people off even if no suitable work is available.”

Why? Because Trump is sick of being buffeted by story lines that, for a change, are not of his own making. And while he’s been out and about stoking his base at tent-revival style rallies, his most winning tactic has always been to divide Americans against each other: “us” against “them”; working tax payers against alleged “takers”; white against brown.

This move is clearly intended to bolster the mythical stereotype (really, more of a conspiracy theory) that Washington is taking money away from working-class white Americans and giving it to someone brown who doesn’t deserve it.

The House version of the farm bill, which contains the SNAP work requirement “would eliminate or reduce food assistance for more than 1 million low-income households with more than 2 million people,” writes Robert Greenstein, president of the progressive Center on Budget and Policy Priorities:

Among those likely to lose food assistance are a considerable number of working people — including parents and older workers — who have low-wage jobs such as home health aides or cashiers and often face fluctuating hours and bouts of temporary unemployment that could put their SNAP benefits at risk.  In addition, substantial numbers of people with serious physical or mental health conditions, as well as many caregivers, may struggle either to meet the monthly work-hours requirement or to provide sufficient documentation to prove they qualify for an exemption — and, consequently, may be at risk of losing nutrition assistance.

And many of the households that lose benefits would do so primarily because they simply couldn’t master the paperwork.

In June, the Senate overwhelmingly passed a bipartisan farm bill that mostly maintains the status quo, while the House passed its bill — with a two-vote margin, and with no support from Democrats – with the work requirements Trump seeks.

Food stamps benefit one out of eight Americans. They are the most effective way of keeping Americans from going hungry. And Trump is playing the worst kind of  politics with their food.

Some background on SNAP: