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Column: Trump Has Already Won the Partisan Memo Wars

  • Clay Bennett, Chattanooga Times Free Press



For Bloomberg
Tuesday, February 06, 2018

The Democrats are right to press for the release of their own House Intelligence Committee memo to counteract the Republican memo about the Russia investigation that was released to great fanfare last week.

But the truth is, it doesn’t much matter what the Democrats’ memo says. President Donald Trump has already won this round, even though the Republican memo wasn’t earth-shaking.

Trump and the House Republicans have only one goal, which is to refocus the whole conversation around special counsel Robert Mueller’s investigation on the issue of partisanship, not the Trump campaign’s conduct. Posing the Democratic memo against the Republican one won’t change that a bit.

The intended goal is, of course, to insulate Trump against any charges or recommendations that ultimately come from Mueller’s team. Eventually, Trump hopes, his supporters will dismiss or at least discount any allegations of ties between Russia and his campaign as partisan. That would likely be all it would take to protect him from impeachment and removal from office, which would require two-thirds of the Senate and therefore lots of Republican votes.

The defense in President Bill Clinton’s impeachment trial 20 years ago sets the precedent. Democrats condemned independent counsel Ken Starr’s investigation as partisan. That helped give the senators cover to vote against removal.

Nevertheless, Trump’s politicization tactic isn’t effective because of any brilliant underlying strategy. Rather, Trump has always seen criminal justice through a political lens. He made that clear when he threatened to “lock up” his opponent Hillary Clinton during the presidential campaign.

What’s more, there is no reason to think that Trump’s politicized view of criminal investigation and prosecution is a put-on. It seems far more likely that Trump sincerely believes that the criminal justice process is essentially political.

Nor is Trump alone in this belief. His supporters appear to share it. They don’t seem upset by it now, any more than they did during the campaign. They just accept it as the way things are.

Why do Trump and his supporters have this jaundiced view of criminal investigation and prosecution as politicized?

One possible explanation is that they are correctly reading the data — that criminal justice in the U.S. is in fact political. But the best evidence suggests otherwise, at least in the post-Watergate era.

Senior figures in the Department of Justice are political appointees, to be sure. And U.S. attorneys are chosen by the president on partisan grounds.

Yet a virtuous circle of reputational concern and the desire to avoid public criticism pressures these appointees to avoid even the appearance of partisanship. Democratic and Republican politicians and donors get charged with crimes when their own party is in power. Some are convicted, others acquitted.

Take Democratic Sen. Robert Menendez of New Jersey. He was charged with corruption under President Barack Obama’s Department of Justice. A hung jury enabled him to avoid conviction. And the prosecutors decided not to recharge him under the Trump administration.

A more likely source for Trump’s belief is a paranoid strand in American popular culture, often reflected in movies and television. The prosecutors (not to mention the politicians) in the great Godfather films are invariably corrupt and on the take. The special prosecutor in House of Cards, Heather Dunbar, is a partisan who eventually runs for president — something unthinkable in real life.

Most elected officials know enough to realize that prosecutors aren’t partisan. To understand Mueller’s nonpartisan stance, it helps to be in the arena where knowledge of his reputation is deep and broad. Deputy Attorney General Rod Rosenstein, a member of that insider elite, had no doubt of Mueller’s nonpartisanship when he appointed Mueller special counsel.

But Trump, with no prior political experience, is more like a member of the public. He assumes partisanship is everywhere and taints everyone.

Another source for Trump’s belief — not to mention his strategy — is the Democratic rhetoric that condemned Starr’s investigation of Bill Clinton as partisan in nature.

Starr (who was not a prosecutor by training) pursued Clinton with the conviction that the president was lying about something. As it turned out, he was: not the Whitewater scandal, but his affair with Monica Lewinsky.

The decision to impeach Clinton was partisan. But Starr’s investigation, controversial for moving from topic to topic, was not inherently partisan, even if its scope may have overreached.

The decision to investigate Clinton’s relationship with his intern may have been unconsciously influenced by Starr’s conservative sexual morality. Yet given the connection to Paula Jones’ allegations of sex harassment at work, the direction of the Clinton inquiry was certainly defensible in nonpartisan terms. And the connection looks even closer with the hindsight of our Me Too moment.

It’s particularly unfortunate that Democrats’ defense of Clinton helped set the terms for Trump’s embrace of the belief in investigative partisanship. But that’s politics — which is the whole problem in the first place.

Noah Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.