What Criminal Behavior, Exactly?
Terry H. Schwadron
Nov. 5, 2017
In his dual distraction mode and retributive self, President Trump insisted on Friday before he stepped on a plane for a 12-day visit to Asia that the Justice Department turn its attention to Democrats in general and Hillary Clinton in particular.
That he cannot hear that he sounds like autocratic dictator who wants to lock up his political foes is sad enough. That he does not understand the constitutional boundaries, whether stated or not, in the executive branch stepping into the judicial arena, is, of course, worse. Some critics were calling his combined attacks on judicial judgments about Sgt. Bowe Bergdahl and call for investigation of Clinton decisions impeachable offenses for breaking what is more a traditional barrier than a legal one.
Still, the judge in the Bergdahl case said he would be taking presidential and candidate public remarks into account in deciding on the sentence in the case. The President’s call for immediate execution of the New York terror suspect was being described as a gift to defense attorneys who could use them to show pre-trial bias in a jury trial. So, even if Trump were right in his call, the practical effect is to mute the judicial desire to carry out his political desires. After Trump called for the terrorist suspect to face a military tribunal, prosecutors filed their charges in civilian federal court, for example.
“The repeated assaults on law enforcement cross lines that presidents have largely observed since the Watergate era, raising questions about the separation of politics and the law. But as extraordinary as Mr. Trump’s broadsides are, perhaps more striking is that investigators and prosecutors are so far ignoring the head of the executive branch in which they serve while military judges and juries are for the most part disregarding the opinions of their commander in chief,” wrote The Washington Post.
Trump must think he is “telling it like it is,” to the delight of his base. In actuality, he is thumbing his nose at the appropriate powers (or not) of his job.
But let’s set that aside.
My issue is that Trump’s allegations about the Democrats, about Hillary’s emails on a private server, about a uranium deal may all be subject to debate, may even reflect questionable judgment or, God forgive, unethical or unsavory behavior in a campaign, but they are not criminal acts.
I can find no one who does not chant “Lock her up” at a Trump rally give the underlying criminal violation that might be here.
The 2010 uranium deal was a business deal by a Canadian company trading with Russians, who needed U.S. government approval for their arrangement. It came about during Clinton’s time as Secretary of State, but not with her involvement. And yes, sometime later, people from the companies involved donated to the Clinton Global Initiative. Where’s the criminal act?
Donna Brazile’s new book about the campaign discloses the fact that a financially broke Democratic National Committee made a deal in 2015 — before the election campaign — with Clinton to fund-raise sufficiently to pay the DNC’s bills. In return, the DNC signed off on Clinton operatives to control the DNC, adding to the eventual arguments that the DNC worked to favor Clinton over Bernie Sanders in the primaries. It also says that she considered replacing Hillary Clinton for Joe Biden after Clinton fainted following a public appearance in September. Okay, I don’t like hearing any of this particularly, but even Donna Brazile, the author, does not suggest there is anything remotely criminal here. Where’s the criminal beef?
The emails issue is more difficult. There was nothing criminal about Hillary Clinton’s use of a private server for personal email, just avoidable stupidity, just as there was in allowing deputy Huma Weiner to access and move emails around. Of at least 60,000 emails, Clinton removed half as personal and turned over the rest to the State Department. Of those, perhaps 10 included text later classified. The FBI looked at all this and concluded that it was dumb, even “reckless” handling of information that included some classified or secret information, but not criminal. In other words, the Justice Department, in the form of FBI director James B. Comey Jr., did investigate, just as Trump is insisting they do. He just does not want to accept the result. In any case, reports yesterday suggested that the FBI was turning over some documents from the email probe to Senate investigators at behest of some Republican senators.
And, of course, he fired Comey, an act which may well prove to be an actual crime — obstruction of justice for the effort to stop an investigation of those in the Trump circle.
Trump also calls for investigation of the Podesta brothers, John, Clinton’s campaign director, and Tony, who stepped down from his company last week for work that he had done with Paul Manafort on behalf of the Ukrainian government — — a problem in the Trump political world. Again, Tony Podesta’s actions are under investigation as a part of the Manafort matter. Trump is trying to pin some kind of criminal charge on John and efforts by a Clinton lawyer in paying for a Trump opposition research dossier. Again, the question is what is criminal here?
I’m upset enough that Trump is a magnet for trouble, that he flails in office, insults and attacks actual and perceived political foes without regard for propriety, context or even constitutional limits. But what puts it over the top for me is that he never actually pins the tail on the Democratic donkey — if you are going to conclude criminal behavior took place, identify it.
Otherwise, we should see this as the blather that it is, and by the way, just escort the last election and Hillary Clinton off the public stage.