“If you ain’t cheating, you ain’t trying,” one of my old sergeants used to say, and he was only half-joking. Maybe a quarter.
That also appears to be the motto of Republican attorneys. From special counsels to Supreme Court justices, right wing jurists are making a mockery of the law, and worse than that, doing it under a dishonest cloak of alleged impartiality.
We need not even discuss the legal maneuvering of Trump’s revolving door of lawyers and the spurious motions they regularly deploy to try to delay his various trials in hopes he will soon be a dictator who can squash them permanently. That’s what he hired them to do, and we should expect nothing less from a shyster who would take that job.
No: I’m talking about officials in the justice system who are supposed to be honest brokers and patently are not. (It also works in medicine—see retired Rear Admiral—sorry, demoted to O-6—Dr. Ronny Jackson, the former Trump White House physician, now a Big Lie Republican Congressman representing Texas.)
I am not calling for an unreasonable standard of purity, or naively suggesting that bias can be eliminated from politics. Inevitably, ideological interest creeps into legal and judicial decisions all the time, even with otherwise reputable jurists. But what we’ve seen of late goes beyond gamesmanship and into wanton perversion of the law in the pursuit of raw power.
WITH A CAPITAL “T” AND THAT STANDS FOR “TRUMP”
This past week we saw once again how Donald J. Trump is the wildly undeserving beneficiary of the very system he openly wants to destroy when it was reported that, as the official candidate of one of the two major parties, he will begin receiving national security briefings from the US Intelligence Community.
Let’s pause to take that in. A man under felony indictment for stealing and hiding the most sensitive US government secrets is going to be given top secret/SCI national security briefings? At a time when he owes half a billion dollars that he doesn’t have? What could possibly go wrong?
As Rachel Maddow pointed out, an ordinary American seeking a security clearance who had those kind of financial liabilities—let alone that history of mishandling intel—wouldn’t stand a chance of getting one, let alone at that level. But evidently Donald Trump is not an ordinary American.
Such intel briefings have been customary since the Truman administration (as Harry didn’t want any other potential president to get caught flat-footed in case he learned he was supposed to, say, drop an atomic bomb). But we’ve never been faced with a candidate who was suspected by the FBI of being a Russian agent, under indictment for stealing classified information, and openly seeking cash to settle massive debts. Whether he sells intelligence to foreign despots (or private tycoons of any nationality) or is simply beholden to them in a second administration, it’s madness to facilitate it.
And do we know that he is susceptible to that kind of bribery? We sure do.
Trump recently did a 180 on his heretofore virulent attacks on Anheuser Busch—over the right wing’s freakout over Bud Light ad featuring trans spokesperson Dylan Mulvaney—on the very day the company announced it would host a $10,000 a plate fundraiser for him. He’s done a similar flip-flop on TikTok, even as a rare bipartisan consensus in Congress is moving toward banning it, because he is courting Jeff Yass, a billionaire whose fund has a $33 billion stake in its parent company, ByteDance. (That’s billion with a b, and that rhymes with c, and that stands for corruption. Or bribery—take your pick.)
And those are only the cases we know of, thus far. Even Steve Bannon is saying Trump has been bought.
As a different Dylan once said, money doesn't talk—it swears.
So why is Trump going to get these briefings? The decision came down from the White House itself, and we can only speculate that Biden is trying to avoid lending credibility to his opponent’s spurious claim that he is being persecuted by the so-called deep state, if only by a break with precedent. But for eight years now, any such effort to sway MAGA Nation with acts of good faith or principle have consistently proven to be a fool’s errand.
The former military intelligence officer in me believes that the security risks of reading Trump onto any additional classified intel far outweigh any bad PR that would come with shutting him out. Apparently lots of high-ranking officials in the IC agree. Page one of the Secret Squirrel handbook: Don’t show your secrets to somebody who’s likely to sell them for bail money.
Let the Red Hatters bitch and moan, say I; they’re gonna do it regardless.
Which, in my roundabout way, brings me to the crux of this essay. The idea that we can impress Trump supporters with our good faith and backward-bending attempts to be fair and impartial is not only a doomed to fail, but actively self-destructive. It’s like watching an endless loop of Miller’s Crossing, as John Turturro as Bernie Bernbaum screws over Gabriel Byrne’s Tom Reagan after he spared his life. At every turn right wingers have gladly accepted such efforts by Democrats, then weaponized them for their own ends, with nary a scintilla of concern about “principle,” or the optics of how that looks.
Exhibit A, also from just this past week: special counsel Robert Hur, who had been appointed to investigate the Biden documents case.
HUR PEOPLE HURT PEOPLE
As soon as he delivered his written report last month, it was clear that Hur, a lifelong Republican who had been appointed as a US Attorney by Trump, went beyond his remit with an unsolicited, inappropriate, and unprofessional characterization of President Biden’s mental fitness that he— a lawyer, not a physician—was unqualified to make. (Maybe he consulted Ronny Jackson.)
Of course, that didn’t stop the MSM from running that story night and day, hammering the preferred Republican narrative into the public mind exactly as the GOP intended, and as Hur surely knew it would.
It’s impossible to believe that that was an accident and not a deliberate partisan strategy.
California Congressman (and soon-to-be Senator) Adam Schiff excoriated Hur on that point on live TV, as the WaPo reported:
“You were not born yesterday, you understood exactly what you were doing,” Schiff said. “You cannot tell me you’re so naive to think your words would not have created a political firestorm.”
Incensed, Hur fired back, “What I understood is the regulations,” referring to the part of Justice Department policy that says special counsel reports should be confidential to the attorney general. But the last two such reports were released publicly, and Attorney General Merrick Garland had made clear beforehand that he would do his best to release as much of Hur’s report as possible.
Schiff met that answer with disbelief and scorn.
“You must have understood the impact of your words,” the congressman said, accusing the prosecutor of injecting “your own personal, prejudicial, subjective opinion of the president, one you knew would be amplified by his political opponent. You had to understand that, and you did it anyway.”
“Congressman, what you are suggesting is that I shape, sanitize, omit portions of my reasoning …”
Schiff was having none of it.
“You made a choice. That was a political choice; it was the wrong choice,” he said.
What was most annoying was Hur’s smug, performative claim that he was merely a nonpartisan public servant following the rules. He is anything but. As Adam Serwer wrote with characteristic elegance in The Atlantic:
During his testimony before the House, Hur insisted that “partisan politics had no place whatsoever in my work.” He tried to have it both ways, insisting that his report was accurate while refuting the most uncharitable right-wing characterizations of Biden’s memory. But as legal experts pointed out after the report was released, Hur’s description of Biden’s memory was not a necessary element of his duties, and it is unlikely that someone with as much experience in Washington as Hur would be so naive as to not understand how those phrases would be used politically.
Tellingly, Hur resigned from the DOJ just before his testimony so he would not be bound by its code of ethics. Reportedly he was also prepped by Trump advisors, who surely told him to emphasize the notion that he did not “exonerate” Biden, by the strict legal definition, only recommended against prosecution.
But Hur’s behavior gets even worse. Now that we have the transcript of his interview with the President, we know that even that “Biden is senile” assessment was not only gratuitous, but wildly inconsistent with the very facts in his own report, which show Joe to be quite sharp. (Even some of Hur’s specific examples—the timing of Beau’s death, for example—are flat-out wrong.)
In the Washington Post veteran legal analyst Ruth Marcus writes that Hur “mischaracterized and overstated Biden’s alleged memory lapses” and “consistently adopted an interpretation that is as uncharitable and damaging to Biden as possible.”
Gratuitous is bad enough. This was gratuitous and misleading.
Hur is entitled to his own interpretation, and it’s relevant, as he explained on Tuesday, to his assessment of how a jury would assess Biden’s conduct. Hur said he needed to “show his work” in explaining his decision not to pursue charges. But the special counsel well understood that his report to Attorney General Merrick Garland would be made public—and he understood, or should have, the political fallout that would result from his scorching assessment of Biden.
So, he had a dual responsibility here, and he failed twice. First, he went beyond, far beyond, what was necessary to outline his concerns about Biden’s memory, and how that would impact any case against him. Second, as we just learned, his recitation of the facts was one-sided.
“Necessary and accurate and fair,” Hur said. I’d say he was zero for three.
The MSM is going to report that just as eagerly and breathlessly as it spread Hur’s lies in the first place, right?
Don’t hold your breath.
A subsequent correction lacks the same power—and is usually buried deep inside the metaphorical paper, near the classified ads and local Little League results. Serwer:
First impressions stick. After a big story hits, the initial conclusions can turn out to be wrong, or partly wrong, but the revisions are not what people remember. They remember the headlines in imposing font, the solemn tone from a presenter, the avalanche of ironic summaries on social media. Political operatives know this, and it’s that indelible impression they want, one that sticks like a greasy fingerprint and that no number of follow-ups or awkward corrections could possibly wipe away.
APPEASEMENT FAILS AGAIN
But in addition to detailing Hur's dishonesty, Serwer also explained the Democrats' own goal of trying to appear non-partisan, which Republicans are happy to exploit over and over again: “Hur’s report is itself something of a self-inflicted wound for Democrats, a predictable result of their efforts to rebut bad-faith criticism from partisan actors by going out of their way to seem nonpartisan.”
Serwer explains the appeal of the “Biden is senile” story for the press on these exact grounds, as it seemed like “the sort of superficially nonideological criticism that some reporters feel comfortable repeating in their own words, believing that it illustrates their lack of partisanship to conservative sources and audiences. Coverage of the Hillary Clinton email investigation reached saturation levels in 2016 for similar reasons.”
We all know how that turned out.
Indeed, Hur’s abuse of his report to deliver a partisan attack was a reprise of Jim Comey’s unsolicited dig at Hillary when, as FBI director, he declined to seek charges against her in July 2016. It was also an escalation, as Hur is a far more partisan actor than Comey. But the comparison is instructive. Comey has since stated that his subsequent decision to announce the re-opening of that investigation in late October of that year, on the very eve of the election—breaking with standard FBI procedure not to comment on such matters—was driven in part by fears of what the right would say if he did not announce it, and Clinton won, and news later got out.
One can hardly think of a more disastrous miscalculation in modern American politics, and that includes Mike Dukakis’s decision to drive a tank.
Serwer again:
For reasons that remain unclear to me, Democrats seem to have internalized the Republican insistence that only Republicans are capable of the fairness and objectivity necessary to investigate or enforce the law. Any lifelong Republican who fails to put partisanship above their duties is instantly and retroactively turned into a left-wing operative by the conservative media. Acting to prevent complaints of bias (as opposed to actually being fair) is ultimately futile: Comey’s last-minute gift to the Trump campaign didn’t prevent Trump from smearing him as a liberal stooge.
The right wing knows it can goad Democrats—and journalists—into giving them what they want by means of this relentless cry of left-wing bias.
I’ve written before about Eric Alterman’s critique of the GOP “working the refs.” (He speaks about that at length in an interview for my forthcoming book Resisting the Right.) Serwer cites that concept explicitly:
These efforts to work the refs pay off. Right-wing criticism of Obama probably influenced him to pick a grandstanding Republican to head the FBI, an agency that has never been run by a Democrat, just as it likely influenced Garland to pick a grandstanding Republican to investigate Biden.
Conservative criticism of the mainstream press leads too many journalists to attempt to prove they aren’t liberals, which results in wholesale amplification of right-wing propaganda to deflect criticisms that the media aren’t objective; the facts become a secondary concern.
ALAS, POOR MERRICK
But even with Hur’s unprofessional behavior, and the media’s willingness to abet it, it didn’t have to play out this way, except that—as Serwer alludes—Merrick Garland is the poster boy for the Democrats’ appeasement impulse.
The Attorney General was under no obligation to appoint a special counsel to look into the Biden documents case at all, as the differences with the Trump case were so great that he could reasonably have demurred. But he did, in order to look “objective” and defer criticism. Even then, he did not have to choose a right wing hack like Hur for the gig—again presumably in the interest of looking scrupulously fair.
After seeing Hur’s final report, Garland could have redacted portions of it. He had promised to release as much as he could, which offered enough subjectivity to put the blatantly partisan portions out of that category. Would that have looked bad, especially if the redacted portions later leaked out? Yes, but—contra Comey—it might have been the lesser of two evils.….and, as we have discussed, by then the narrative would be set and the revelation would be drained of much of its power.
That is absolutely the GOP playbook in these cases.
Do you imagine for a moment that a Republican AG like Bill Barr wouldn’t have done so? No need to imagine, because Barr not only did that, but he did something much more extreme in holding the Mueller report for three weeks while issuing his own blatantly partisan and misleading four-page “summary,” in order to set the story in advance. Which worked brilliantly, with Trump claiming “total exoneration,” and the press blaring that assertion as gospel. Serwer: “Only later did the public learn that Mueller’s report had found ‘no criminal conspiracy but considerable links between Donald Trump’s campaign and Russia, and strongly suggested that Trump had obstructed justice’.”
Garland could have similarly held Hur’s report and first issued his own summary…..and unlike Barr/Mueller, he would have been justified in so doing, since Hur was engaging in wildly inappropriate editorializing while Mueller was scrupulously adhering to the rules. To a fault, some would say—the purity impulse in action again.
Maybe Merrick doesn’t think it’s his job to control the narrative. But it is his job not to let the people he appoints abuse and distort the process for partisan purposes. Very much his fucking job.
NEVILLE NEVILLE, YOU’VE TORN YOUR DRESS
But at least some Democrats have finally figured out how to jiu-jitsu the GOP’s tactics.
Obviously, House Republicans called Hur to testify because they wanted to highlight his uncalled-for assessment of Biden's mental acuity. But it was clear to me from the start—and not because I’m Nostradamus—that the hearing might backfire on the GOP, thanks to the kind of admirable combativeness and muscularity that Adam Schiff and others demonstrated and that we need, in contrast to the Marquess of Queensbury thinking that this essay bemoans.
For example, in pressing on why the DOJ is charging Trump and not Biden over the retention of classified documents, Hur wound up explaining on national TV why what Trump did was so much worse. Another California Democrat, Ted Lieu, made that case very well by reciting a litany of Trump’s illegal behavior re the classified documents in his possession—hiding them, defying subpoenas to return them, ordering staff to move them when federal investigators were coming, and to lie about it—and forcing Hur to admit that Biden did none of those things.
Yet another California Democrat (what’s in the water out there?), Eric Swalwell, attempted to get Hur to pledge not to accept a federal judgeship from Trump should he win again. Yeah, that was some grandstanding, but who could resist? It certainly highlighted the self-serving motives behind Hur’s actions, both political and potentially personal. And Hur’s refusal to answer and lame attempt to pivot back to “what I came here to discuss” didn’t look great.
Democratic grandstanding or no, in a (gulp) second Trump administration, don’t be surprised to see Hur in black robes.
As Heather Cox Richardson wrote, the Democrats on the Judiciary Committee also showed “videos of Trump slurring his words, forgetting names, and speaking in word salad, getting their own sound bites to voters.”
And it was effective. On Twitter (don’t call it “Eks”) George Conway predicted that the one-two punch of Biden’s State of the Union address and Hur’s “immolation” a few days later would go down in political history like Reagan’s disarming “I am not going to exploit my opponent’s youth and inexperience’ moment,” from a 1984 presidential debate at a time when he was the one being attacked for his age. As HCR writes, “Mondale later said he knew Reagan’s answer was the moment he had lost not only the debate but probably the election.”
Maybe the left is finally figuring out the Neville Chamberlain is not a great role model.
So let’s stop trying to appease the right, and engaging in torturous contortions to try to show MAGA Nation how fair and decent we are, when all they ever do is exploit our goodwill and use it against us, and against democracy. Yes, we should play by the rules. But there’s playing by the rules, and then there’s doing self-harm when facing an opponent who gleefully twists and distorts and undermines those rules….all the while pretending that they too and fair and impartial and good faith players.
But guess what Republicans? You can’t piss on our heads and tell us it’s rain.
Another old NCO maxim? No—Hester Street. Better in the original Yiddish.
********
Photo: Republican special counsel Robert Hur, with his message for America
Credit: Associated Press
h/t to Beth Westrate for “what could possibly go wrong?”