This Is What A Constitutional Crisis Looks Like. So What Can Be Done About It?

How many times over the past several months have you heard a TV pundit or political columnist say that if Trump does this or Trump does that we will face a constitutional crisis? Many times. But that’s it. No one explains what constitutes a constitutional crisis or describes the consequences of a constitutional crisis or says how a constitutional crisis – once identified – gets resolved.

Newsflash to the American people: We are in the middle of a constitutional crisis NOW.

We have a president who lies repeatedly to the American people. More than that, he has been subverting the idea of truth itself, invoking what his spokespeople call “alternative facts”, i.e., lies. He uses his office and his family uses their government positions to enrich themselves. He refuses to disclose his business dealings or produce his tax returns. He has appointed cabinet members – Pruitt, DeVos, Zinke, Mulvaney – whose goals are to destroy and undermine the missions of the departments they head. Many of the people he has appointed have already had to resign in scandal and disgrace.

He engaged as one of his top foreign advisors a man – Carter Page – whom our intelligence agencies have believed since 2013 either to be a Russian agent or to be the target of Russian intelligence. (They produced evidence sufficient to convince four FISA judges that, more likely than not, Carter was a Russian agent.) He appointed as his National Security Advisor a man – Michael Flynn – who was a paid agent of the Turkish government and a liar. Even after Trump was aware of Flynn’s lies and vulnerability to blackmail, he kept him on for more than two weeks. After Flynn had to be let go, Trump tried to pressure government officials into dropping the investigation into Flynn’s activities. He named as head of his presidential campaign a criminal – Paul Manafort – who was an agent of Viktor Yanukovych and the Ukranian government, a crony of Russian oligarchs, and someone who has generally represented interests hostile to America. (See “The Plot Against America” in this week’s Atlantic magazine.)

He has worked persistently to undermine many of our most cherished institutions – the independent media, our courts of law, and our law enforcement and intelligence agencies. He constantly seeks to place himself above the law and to demand personal loyalty from officials charged with enforcing the law independently. Those failing the Trump Loyalty Test face the threat of termination.

Most recently, Trump has used Devin Nunes and the memo Nunes prepared to smear leaders within the Department of Justice and the FBI. Trump’s objective is to establish a pretext for firing the Deputy Head of the Department of Justice, Rod Rosenstein, and replacing him with a Trumpist stooge who will either hamstring or terminate the Mueller investigation.

Trump has been abetted in his betrayal of his office by spineless Republican leaders in the House and Senate, by the corrupt and unprincipled House Intelligence Committee Chair, Devin Nunes, and by Sean Hannity and FOX “News” – which poses from time to time as an actual news organization. (Trump regularly consults with Sean Hannity for policy advice and to coordinate his coverage by FOX.)

How is this not a constitutional crisis? The appropriate response, of course, would be for Congress to impeach the man and remove him from office. But we know this will not happen. Republicans control the House and the Senate and, as Speaker Paul Ryan and Senate Leader, Mitch McConnell have said, all they want in the Oval Office is someone with a pen who can sign his name. In other words, they want Trump to remain in office. Since most of the Republicans in Congress are subservient to and dependent upon the Koch brothers and their billionaire cronies, the interests of the American people are presently without representation. What courageous Republicans have spoken out against Trump? Only John McCain from what is likely his deathbed. Bob Corker and Jeff Flake made a few anti-Trump noises, and then stepped back into line. Plus, they are leaving the Senate in 2018.

Since there will be no impeachment proceedings, it is incumbent on those elected and appointed officials who are not part of Trump’s plot against America to speak out, to tell the American public clearly, unequivocally and passionately what is going on, and to demand that the Mueller investigation be allowed to continue without impediments.

In case anyone has any doubt whatsoever whether Trump has obstructed justice by impeding and attempting to block the Mueller investigation into Russian meddling in the 2016 election and whether he has generally acted in accordance with Russian interests, please consider the following timeline:

May 2016: While drinking with an Australian diplomat in May 2016, Trump campaign advisor, George Papadopoulos, says that Russia has dirt on Clinton. He lies to the FBI about this conversation.

June 9, 2016: Natalia Veselnitskaya, a Russian lawyer with close connections to Putin, tells Donald Trump Jr. that she has dirt on Clinton and requests a meeting. Don Jr. says that if she has what she says she has, “I love it.”

June 2016: The requested meeting takes place at Trump Tower. Present are Veselnitskaya, an interpreter for Veselnitskaya, Don Jr., Jared Kushner, Paul Manafort, Rob Goldstone, Ike Kaveladze, a representative of Aras and Emin Agalarov, the father-and-son Russian developers who hosted the Trump-owned Miss Universe pageant in Moscow in 2013, and Rinat Akhmetshin, a registered lobbyist for Veselnitskaya’s organization, which has focused on lobbying Washington to overturn the Magnitsky Act sanctions.

[Jumping to July 8, 2017, a year later]: The June 2016 meeting is reported in the NY Times. Trump personally dictates a statement to be issued by Don Jr., stating that he and Veselnitskaya “primarily discussed a program about the adoption of Russian children,” and that the subject of the meeting was “not a campaign issue at the time.” That statement was false and was intended to deceive the American people. The true purpose of the meeting was to trade dirt on Clinton for a commitment to get rid of Magnitsky Act sanctions, which Putin hates. Trump’s lawyer have repeatedly – and falsely – denied that Trump was involved in drafting the statement.]

Late July 2016: At the Republican Convention, the Trump campaign waters down the Republican platform to make it more favorable towards Russia.

Late July 2016: The FBI begins investigating the Russian government’s attempts to interfere with the 2016 election.

During the election campaign, Trump publicly asks Russia to hack Hillary’s emails and disclose them to the public. He says that he “loves Wikileaks.” Trump’s crony, Roger Stone, says that soon “it will be John Podesta’s [head of Hillary’s campaign] turn in the barrel.” A day or two later, Wikileaks discloses emails hacked from Podesta’s account.

Throughout the campaign and after his election, Trump continues to speak favorably about Russia and Putin, while trashing our allies and the international organizations and agreements upon which world order has been based. He snubs the leaders of our allies and toadies up to autocrats like Putin, Erdogan, al Sisi and Duterte.

November 8, 2016: Trump wins the election.

December 1 or 2, 2016: Jared Kushner proposes to Sergey Kislyak, the Russian Ambassador and spymaster, the possibility of setting up a secret and secure communications channel between Trump’s transition team and the Kremlin, using Russian diplomatic facilities in order to shield their pre-inauguration discussions from monitoring by U.S. Kushner fails to disclose this contact in his security clearance application.

December 22, 2016: Pursuant to directions from a “very senior member of the Presidential Transition Team”, Flynn asks Kislyak to delay or defeat a U.N. Security Council resolution, to be voted on the next day, that would have condemned Israel’s building of settlements in the West Bank and East Jerusalem. The Obama administration had agreed to allow the resolution to come up for a vote over the objection of Israel. Flynn lies to the FBI about the conversation.

December 29, 2016: Obama Administration announces sanctions on Russia for meddling in the 2016 election. Flynn discusses the new sanctions with “a senior official” of the Trump transition team “who was with other senior members of the Presidential Transition Team at Mar-a-Lago.” Flynn then calls Sergey Kislyak and asks him not to object strenuously to the sanctions, since once Trump is inaugurated the sanctions will be lifted. Flynn lies to the FBI about this conversation.

Flynn, Sessions, Kushner and other Trump family members and officials fail to disclose numerous meetings and contacts with Russians on security clearance disclosure forms.

Jan. 19, 2017: The New York Times reports that U.S. law enforcement and intelligence agencies are conducting a counterintelligence investigation into links between Russian officials and Trump associates. The associates under investigation include former campaign manager Paul Manafort and advisers Carter Page and Roger Stone.

January 2017 [after the Inauguration]: Sally Yates tells White House Counsel, Don McGahn, that National Security Advisor Michael Flynn is a security risk who has falsely claimed not to have met with Russians. She tells McGahn that Flynn has lied to the FBI. McGahn passes that information to Trump, who takes no action against Flynn for 18 days.

Jan. 27, 2017: Trump invites Comey to dinner at the White House and asks whether Comey wants to remain FBI director. Comey responds affirmatively. During the dinner, Trump repeatedly tells Comey that he “needs loyalty,” and Comey responds, “You will always get honesty from me.” Trump responds, “That’s what I want, honest loyalty.” Comey responds, “You will get that from me,” hoping to end the conversation.

Jan. 30, 2017: Trump fires Sally Yates. Stated ground: Her refusal to defend Trump’s executive order banning Muslim travel.

Feb. 13, 2017: Flynn is fired/resigns after revelations that he misled Vice President Mike Pence and other administration official and the FBI about his December conversations with Kislyak.

Feb. 14, 2017: Comey and other intelligence officers deliver a counterterrorism briefing at the Oval Office. At the end of the briefing, Trump dismisses everyone except Comey, whom he tells: “I want to talk about Mike Flynn.” He says that Flynn has not done anything wrong but had to resign because he misled Pence. Trump then tells Comey: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

Immediately after the meeting, Comey prepares a memo of the communication and presents the issue to FBI senior leadership. Comey interpreted Trump’s communication as “a direction” to drop the FBI investigation into Flynn.

March 2, 2017: Attorney General Sessions announces that he is recusing himself from any investigations into charges that Russia meddled in the 2016 election following revelations that he gave false testimony in his Senate confirmation hearings about his communications with Russians. Deputy Director Rod Rosenstein, a Republican, is appointed by Trump to supervise the Russia investigation.

March 10, 2017: Trump orders Preet Bharara, U.S. Attorney whose jurisdiction includes Trump Tower in New York, to resign. Bharara refuses and is fired.

March 22, 2017: Director of National Intelligence Dan Coats and other senior officials participate in an Oval Office briefing, after which Trump asks Coats and CIA Director Mike Pompeo to stay for a private meeting. Trump complains to them about Comey’s handling of the Russia investigation and asks them to intervene with Comey to get the FBI to stop investigating Flynn.

Within a day or two of this meeting, Trump makes separate telephone calls to Coats and to NSA Director Adm. Michael Rogers, and requests that they issue public statements denying the existence of any evidence of collusion between Trump officials and the Russian government.
Senior White House officials separately request that top intelligence officials consider the possibility of intervening with Comey directly to have the FBI withdraw its probe of Flynn. Their reported lines of questioning include: “Can we ask him to shut down the investigation? Are you able to assist in this matter?”

March 30, 2017: Trump calls Comey at his office and tells him that the Russia investigation is a “cloud” inhibiting his ability to act as president. Trump assures Comey that he has had nothing to do with Russia and asks Comey what he can do to “lift the cloud.” Comey responds that the FBI is investigating the matter as quickly as it can, and that a full investigation is in Trump’s best interests.
Trump repeatedly urges Comey to get the “fact” that he himself is not under investigation out to the public.

April 11, 2017: Trump calls Comey again and asks what he has done about Trump’s request to publicize the “fact” that he is not personally under investigation. Comey tells Trump that he relayed Trump’s request to Acting Deputy AG Dana Boente but that he has not heard back. Trump reiterates that the “cloud” is interfering with his ability to act as president, and asks whether he should have his staff contact Boente. Comey advises Trump of the traditional channel, which is for White House Counsel to contact DOJ leadership to make such requests. Trump says he will do so and tells Comey, “Because I have been very loyal to you, very loyal; we had that thing you know.” Comey responds by reiterating that the proper channel for Trump’s request is for Trump to follow the DOJ chain of command. Trump agrees and ends the call.

May 8, 2017: Trump summons Pence, his chief of staff, top lawyers, and other senior advisers to the Oval Office and informs them that he plans to get rid of Comey, showing them a four-page, single-spaced letter, consisting of thoughts on why Comey should be fired, that he dictated to Stephen Miller. The draft criticizes Comey for failing to publicly disclose that Trump was not personally under investigation and for his handling of both the Russia and Clinton email investigations.

White House Counsel Don McGahn opposes the letter’s angry tone and its references to private conversations between Trump and Comey. He convinces Trump not to use the draft. Deputy Attorney General Rod Rosenstein then composes his own letter, which becomes a central part of the administration’s public rationale for the removal. The New York Times reports that “Mr. Sessions had been charged with coming up with reasons to fire him,” according to administration officials.

May 9, 2017: Trump fires Comey as FBI director. In the official announcement, Trump cites letters written by Sessions and Rosenstein that “recommend [Comey’s] dismissal.” The letters largely deal with the Clinton email investigation, and Trump also publicly cites Comey’s handling of the Clinton investigation in announcing the change. However, Trump’s letter also references the Russia investigation.
Of the two letters Trump cites, Sessions’ brief letter does recommend Comey’s dismissal, and cites the reasoning in Rosenstein’s letter. Rosenstein’s letter, however, does not recommend dismissal, but only outlines Comey’s “serious mistakes” in handling the Clinton email investigation.

May 10, 2017: Trump meets with Sergey Lavrov, Russian’s Foreign Minister, and Ambassador Kislyak in the Oval Office and tells them: “I just fired the head of the FBI. He was crazy, a real nut job … I faced great pressure because of Russia. That’s taken off … I’m not under investigation.” Trump also gives Lavrov and Kislyak highly classified information Trump had received from Israeli intelligence, which he was not authorized to share with the Russians.

May 11, 2017: In an interview with NBC News’s Lester Holt, Trump says that he had decided to fire Comey even before he consulted Rosenstein:

“I was going to fire Comey. There’s no good time to do it, by the way.”

Holt mentions Rosenstein’s letter and Trump responds, “Oh, I was going to fire him regardless of the recommendation.” He adds: “And in fact when I decided to just do it, I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should have won.’ … This was an excuse for having lost an election.”

After Comey’s firing, Trump repeatedly refers to the Russia investigation as a “hoax” and a “witch hunt” and rejects the findings of U.S. intelligence that Russia meddled in the 2016 election.

May 17, 2017: Rosenstein appoints former FBI Director Robert S. Mueller a Republican, as the DOJ’s special counsel to investigate Russian interference in the election, possible coordination between Trump associates and Russia and “other matters that may arise.” Everyone praises the choice.

Shortly after Mueller’s appointment, Trump berates Sessions in the Oval Office and tells him he should resign. Trump accuses Sessions of “disloyalty”. He complains that Sessions has not protected him. Sessions becomes emotional and tells Trump he will quit. Sessions drafts and sends a resignation letter to the White House. Trump eventually rejects the resignation after senior administration officials argue that it would only create more problems for him.

May 18, 2017: Rosenstein testifies that he knew Trump wanted to fire Comey before he wrote his letter criticizing Comey’s actions and that Trump asked him to write the letter. He testifies that on May 8 he knew that Trump was planning to fire Comey.

June 8, 2017: James Comey testifies under oath as to his interactions with Trump in the lead-up to his firing.

June 9, 2017: Trump accuses Comey of lying under oath about the request for a loyalty pledge and other things.

June 2017: Congress votes 517-5 (combination of both houses) to impose additional sanctions on Russia for meddling in the 2016 election. Trump signs bill, but takes no action to implement the sanctions. In January 2018, the White House says it will not impose the sanctions passed by Congress because Russia is behaving better. Trump declines to take any steps to address Russian meddling in our upcoming elections.

June 13, 2017: Trump orders McGahn to fire Mueller. McGahn refuses and says he will resign if Trump tries to force him to fire Mueller.

June 15, 2017: Trump begins a Twitter campaign that the Mueller investigation is biased and tainted.

June 16, 2017: Trump twitter-attacks Deputy AG Rosenstein, who is overseeing the Mueller investigation.

July 8, 2017: The New York Times reports on the June 16 Trump Tower meeting. [See entry for June 2016]

July 19, 2017: Trump says that had he known Sessions was going to recuse himself from the Russia investigation, he would not have nominated him to be Attorney General.

July 21, 2017: Trump asks his advisors about his power to pardon aides, family members and even himself in connection with the Mueller investigation.

Aug. 1, 2017: In an interview with the Wall Street Journal, Trump berates Sessions for recusing himself from the Russia investigation, saying he was “very disappointed in Sessions.”

October 2017: Dana Boente, U.S. attorney for the Eastern District of Virginia, is asked to resign.

Oct. 2017: Trump personally interviews candidates for U.S. attorney positions in the Southern and Eastern districts of New York and in Washington D.C., who would have jurisdiction over Trump and Kushner’s real estate activities. This is highly unusual.

Oct. 30, 2017: Mueller announces criminal charges against former Trump campaign chairman Paul Manafort and business associate Rick Gates. Both men plead not guilty to the charges, which center on money laundering and secret lobbying, and turn themselves into the FBI. Mueller also announces the unsealing of a plea agreement with former Trump foreign policy adviser George Papadopoulos, who it is revealed has been cooperating with the Mueller investigation since July 27. Papadopoulos pleads guilty to lying to the FBI regarding his contacts with Russian officials while working for the Trump campaign.

Oct. 30–31, 2017: Trump minimizes the charges against Manafort and calls for the FBI to focus on Hillary Clinton and the Democrats. He minimizes Papadopoulos’ role in his campaign, calling him a young, low-level volunteer.

November 2017: The White House, abetted by Sean Hannity and FOX “News”, continues its campaign to undermine and discredit the Mueller investigation.

Dec. 1, 2017: Flynn pleads guilty to lying to the FBI about his contacts with Russians during the presidential transition.

Dec. 2, 2017: Trump tweets that he fired Flynn because Flynn lied to the FBI and to Mike Pence. This implies that Trump knew that Flynn had lied to the FBI when he asked Comey to drop the Flynn investigation the day after Flynn’s firing on Feb. 14.

December 2017: Rosenstein asks Trump for his help in resisting Rep. Devin Nunes’ requests for classified documents and Trump asks Rosenstein: “Are you on my team?”

January 2018: Trump declines to impose the Russian sanctions passed nearly unanimously by Congress in June 2017.

January/February 2018: Nunes drafts a memo regarding the FISA application to surveil Carter Page and three renewals of the FISA warrant. The memo contains classified information. Despite pleas from the Justice Department, the FBI, and intelligence agencies, Trump decides to allow the memo to be released to the public, despite not having read it. In truth, Trump didn’t care what the memo says; he just wants a pretext for firing Rosenstein and ending the Mueller investigation.

As expected, Sean Hannity is flogging the Nunes memo as “shocking”, “stunning” and irrefutable evidence of the “biggest abuse of power corruption case in American history – Watergate times one thousand.” According to Hannity, “the entire basis for the Russia investigation was lies bought and paid for by the Hillary Clinton campaign.” He calls for many of the people involved – Comey, McCabe, Rosenstein, Yates, and Boente – to be prosecuted and sent to jail. And, says Hannity, this is only the tip of the iceberg; Nunes has ten times more material to release. He calls for the Mueller investigation to be ended immediately and says that the charges against Manafort and Flynn must be dropped.

Thus, Trump has his Hannity-annointed pretext for firing Rod Rosenstein. Although the memo itself is misleading and says very little, Trump doesn’t care. He describes “what is going on in America” as “terrible” and a “disgrace”. He says “a lot of people should be ashamed and more than ashamed.” When asked whether the release of the Nunes memo increases the likelihood of Rosenstein being fired, Trump says: “You figure that one out.”

This morning, Trump tweeted:

Later this morning, the White House walked all of this back, saying that there are no plans to fire Rosenstein. We know, however, that Trump watches Hannity on TV and takes his cues from FOX. I will be surprised if he doesn’t fire Rosenstein within the next week or two and find a stooge to circumscribe – maybe even shut down – Mueller’s investigation.

We know that Trump has obstructed justice and is desperate to end or strictly curtail the Mueller investigation. The unanswered questions are: Why the lies and desperation? What is Trump trying to hide? Why have Trump and his advisors lied repeatedly about their dealings with the Russians? What do those dealings consist of? What do the Russians have on Trump?

Trump has been financially entangled with the Russians for decades. He has almost certainly engaged in money laundering schemes with Russians. Many of the condos Trump has sold over the past 30 years were sold to Russians – some to Russian criminals. More than 1,300 of the 6,400 Trump condos sold since 1987 were bought by shell companies instead of individuals. These transactions were paid in full and without a mortgage, a move that allows buyers to avoid questions from lenders or scrutiny by banks or regulators. One example: 77 percent of the sales at the Trump SoHo Hotel Condominium in Manhattan were to shell companies that paid cash. The Treasury Department has said that those characteristics in real-estate deals—all-cash transactions and shell-company purchases—suggest money laundering. Trump’s condo sales surged in the late 2000s and early 2010s, around the same time period in which Donald Trump Jr. said that the Trump Organization had “a lot of money pouring in from Russia.”

What else? We know Trump was planning a huge Trump hotel development in the center of Moscow. Trump and Kushner have most likely been involved in other illegal financial dealings involving Russians.

If Trump does fire Rosenstein and replaces him with a stooge who attempts to shut down Mueller, what is to be done? The Republicans in Congress don’t seem to have the courage to stand up to Trump. I certainly don’t see Paul Ryan or Mitch McConnell as profiles in courage. Chuck Schumer and Nancy Pelosi have sent Trump “warning” letters, saying that attempting to fire Mueller would trigger a constitutional crisis. I suspect that won’t stop Trump.

This is a dangerous time in America. Republicans other than John McCain must step forward. Apparently some of them privately express horror at what is happening, but it’s time for them to speak up. I’m not holding my breath.