Wednesday, November 28, 2018

UPDATED: Trump: Declassification Best Used To Counterpunch

In an interview with the New York Post earlier today, President Trump directly addressed the issue of the best time to declassify Russia Hoax related documents. Recall that back on September 17, 2018, Trump had ordered the declassification of several categories of documents but then, within days, decided to withhold declassification, citing frantic phone calls from "close allies" of the United States, begging him not to declassify the documents:
The documents include Justice officials’ request to surveil Trump campaign adviser Carter Page and memos on DOJ official Bruce Ohr’s interactions with Christopher Steele, the author of a controversial dossier that alleged Trump ties with Russia.
Trump initially agreed to declassify the documents, including text messages sent by former FBI officials James Comey, Andrew G. McCabe as well as Peter Strzok, Lisa Page and Ohr. Trump allies believe the revelations will show favoritism toward Hillary Clinton and a plot to take down Trump.
Trump then reversed course, citing the need for further review and concern of US allies.
In the interview Trump characterized himself as a "counter-puncher" and stated that his preferred strategy of counter punching would likely lead him to use declassification as a weapon if the Democrats decided to go down the path of harassing his administration, saying: "I’m a counter-puncher and I will hit them so hard they’d never been hit like that.” According to the Post Trump further spelled out exactly what disclosure of those documents would reveal: that the FBI, the Justice Department and the Clinton campaign had conspired to set him up.

In line with that strategy, Trump openly stated that he preferred to save the documents until they're needed, rather than risk relegating them to "yesterday's news" through premature disclosure. Regarding the timing of Trump's statements, The Post pointed out the obvious: that Trump revealed his playbook just as Democrats are set to take over House committees in January where they are poised to investigate his potential business conflicts of interests, tax returns, Russia dealings and more.

Interestingly, Trump gave a face and a name to his strategy, stating that his lawyer, Emmet Flood, had advised him to wait on declassification, viewing that as the better political move: “He didn’t want me to do it yet, because I can save it,” Trump said." Finally, Trump also suggested that the revelations that would follow on declassification would be so damaging that perhaps the country needed to be protected from the truth:
“Some things maybe the public shouldn’t see because they are so bad,” Trump said, making clear it wasn’t damaging to him, but to others. “Maybe it’s better that the public not see what’s been going on with this country.”
I suspect that Trump's final rhetorical dig was meant both as a warning to Democrats but also to further whet the interest of the general public--following on his earlier characterization of the Russia Hoax: a conspiracy of the FBI, the Justice Department and the Clinton campaign to set him up.

I certainly count myself among those who would like to see full declassification sooner rather than later. On the other hand, it's difficult to gainsay either Trump's instincts and street smarts or the advice of the highly experienced Emmet Flood. However, taking everything Trump said in its political context--and he is, after all, engaged in an epic political war with both the Deep State and the political/media Establishment--it remains that the nation is owed a full accounting of what is beyond any shadow of a doubt the most serious scandal in the history of this country. The President's initial position of declassification "sooner rather than later" should remain the operative policy. And I suggest that it should happen no later than November, 2020.

UPDATE: James Howard Kunstler has a piece up at Zerohedge about The Dire Quandaries Of The Deep State. For our purposes here is the relevant passage (all emphasis in the original):

Now, an epic battle of wills is setting up as Robert Mueller’s investigation concludes its business and its primary target, the Golden Golem of Greatness, girds his loins to push back. Behind the flimsy scrim of Russia collusion accusations stands a bewildering maze of criminal mischief by a matrix of federal agencies that lost control of their own dark operation to meddle in the 2016 election. 
The US intel community (CIA, NSA, FBI, etc), with the Department of Justice, all colluded with the Hillary Clinton campaign and the intel agencies of the UK and Australia, to derail Mr. Trump as a stooge of Russia and, when he shocked them by getting elected, mounted a desperate campaign to cover their asses knowing he had become their boss. 
The Obama White House was involved in all this, attempting to cloak itself in plausible deniability, which may be unwinding now, too. How might all this play out from here? 
One big mystery is how long will Mr. Trump wait to declassify any number of secret files, memoranda, and communications that he’s been sitting on for months. 
My guess is that this stuff amounts to a potent weapon against his adversaries and he will wait until Mr. Mueller releases a final report before declassifying it. Then, we’ll have a fine constitutional crisis as the two sides vie for some sort of adjudication.

And, for good measure, Kunstler asks:

... might Mr. Mueller, and others, possibly find themselves in trouble, as spearheads of a bad-faith campaign to weaponize government agencies against a sitting president?

Two quick points.

First, there is nothing to say that Trump's use of declassification must be an "all or nothing" affair--all declassified documents in one big dump. As events play out, Trump, who ultimately holds all power in this regard, can decide for himself what to declassify, how much to declassify, and when to declassify. I also think it's safe to say that Trump probably has a better idea of what's in all those Russia Hoax documents than virtually anyone--at least in an overall sense.

Second, Kunstler's question with regard to the possibility that Mueller himself could find himself in trouble is fascinating. It may sound far fetched, but those involved in the origination of the FBI investigation which was then passed on to Mueller by Rosenstein--recall, those are the exact terms of the memo authorizing the Special Counsel--could at some point be called upon to justify the opening of the investigation. And that may prove very difficult, because they would be called upon to explain what due diligence they did to back up such a momentous decision: to authorize the FBI in the first place to open a Full Counterintelligence Investigation (but which included a criminal predicate) on a presidential candidate and, in the second place, to appoint a Special Counsel to take over that investigation and target a sitting president. Yes, some may quarrel with my characterization of who the "target" was--the campaign, advisers, Trump personally?--but any cursory examination of media coverage of the Mueller "probe" should leave no doubt whatsoever that Trump is the target. The point is, no Full Investigation should have been opened without verifiable facts to serve as predication, and "Hillary wants this" is not predication for either a Preliminary or a Full Investigation. Comey, McCabe, Rosenstein, Mueller--they all should have been responsible for that determination. So far no one is talking much about the "EC" that justified all this, but Trump may want to declassify that and start a conversation on those issues.

Much of this was previously discussed in:

Crossfire Hurricane: The How and Why

A Guide To Spygate, Informants, FISA


  1. This issue really shouldn't be about politics at all, and to make it such is actually very harmful to the rule of law and the ethos of equal treatment of all citizens. Many senior Obama Administration officials committed numerous Class I felonies in the Spygate crime spree. This was perpetrated by persons in a position of trust and constituted repeated violations over many years. To excuse or delay to proper administration of justice because of political considerations makes a mockery of the Constitution and sets a terrible precedent for future misconduct, which will become much more prevalent if there is a belief that no prosecution will ever occur. This travesty is not about Spygate and Trump, it's about restoring the rule of law and faith in government institutions. The price of playing political games with this criminality will be a tidal wave of cynicism and a greater fracturing of the country. It is a disgrace to convict someone like Mike Flynn of a petty (and contrived) offense, but then allow the real criminals to walk away free as a bird. Are there no honorable men or women left in DC?

  2. And yet ... this really is a political struggle, in the largest sense of the word. "Rule of law" is subsumed under the larger concept of political order represented at least in part by our Constitution (I would argue that there are larger cultural and philosophical aspects to our political order that support our Constitution). We are in a struggle for the survival of that political order.

    Consider. The president is sworn to uphold the laws and the Constitution, but he doesn't do so personally. He has no power as president to indict or prosecute. He appoints an Attorney General to head that Department of the Government. And we saw what happened. If there were some sort of guarantee that by declassifying those documents Trump could ensure that all the conspirators would face justice, then I would agree that Trump would be duty bound to declassify ASAP. As it is, there is no such guarantee--Trump is locked in a struggle against a bi-partisan Establishment. I have no confidence that simple declassification would win the day.

    Therefore, Trump must engage in politics even in the face of criminal conduct and obstruction of justice by his own appointed officials--ESPECIALLY in the face of that. Step one was the declassification order, implementation of which was delayed. Step two was the forced resignation of Sessions and his replacement by an outsider, Whitaker, who also replaced Rosenstein. Presumably, when the new Congress begins the makeup of the Senate (minus Corker and Flake) will be such that Trump will be able to nominate and see confirmed an Attorney General who will take control of DoJ and the administration of justice.

  3. Americans traditionally are cynical of politics and politician's. I would, as a matter of personal preference, see all material declassified immediately; however, I believe this to be an existential political battle between those whom some style "Dirt People" and the Deep State. If Trump loses then the rule of law essentially dies - forever. The State will not ever again allow this mistake to repeat because they also perceive it as existential.

  4. Anon, that's largely how I see it, too.

  5. Trump is playing hardball (first the Whitaker appointment, now this interview) to prevent disclosure of his taxes. And he has another ace in the hole -- having Whitaker appoint a second special prosecutor. He can make a deal with the Democratic leaders which would not only safeguard against disclosure of his personal finances (and against impeachment) but which would also get funding for building the border wall.

  6. If the situation is as dire as you suggest (existential battle for restoration of the rule of law), then the political gamesmanship analogy is obsolete and inappropriate. Trump is largely alone in the middle of a melee with hundreds of opponents surrounding him and even a few of his meager allies are of dubious loyalty. As strong and courageous as he is, he will likely die the death of a thousand cuts if he continues slugging it out in the mud because attrition favors the more numerous Swamp orcs. This is a Churchillian moment at a break-point in history, and the momentum of battle is running against him. Trump needs to rally, not hunker down.

  7. Unknown, I have to insist that I haven't suggested that this is, as you write, an "existential battle for restoration of the rule of law." I specifically stated that I was talking about our political order and stipulated that it is more fundamental than "rule of law"--rule of law arises from a theory of political order based in philosophical insight. This blog, meaning in history, arose out of a desire to explore those themes.

    Since you raise the metaphor of "a Churchillian moment" I would point out that the most Churchillian moments in Churchill's career--those he is most remembered for, not Gallipoli, for example--were virtually all defensive in nature: rallying the nation after the debacle of Dunkirk, the Battle of Britain, etc. Rallying while on the defensive. Churchill's response to these events was NOT to attempt an invasion of continental Europe, it was to retrench, establish defensive lines, and above all to seek allies. And part of Churchill's response was knowing when and where to take the offensive.

    Like Steve Fine (comment above) I do NOT see Trump as "hunkering down"--far from it. As Steve puts it, "Trump is playing hardball." Let me recommend a fascinating video presentation by Geoff Shepard: Watergate. It was linked by Scott Johnson of Powerline in Watergate revisited. Shepard worked in the WH Counsel Office throughout the Watergate years and has done archival research, with remarkable results. In his presentation, delivered at Hillsdale College, Shepard expressly compares the Russia Hoax to Watergate, and Trump to Nixon. He makes the point that Trump is NOT responding like Nixon, NOT responding as the Washington Establishment expected, and wiil NOT go down without a fight.

    Trump is far too smart to lead a Pickett's Charge at this point. He is, I believe, proceeding step by step.

  8. Tx Steve. I address your comment in my response to Unknown.

  9. OK, I watched the Geoff Sheppard video (which was quite startling in its revelations) and I would now argue that it actually reinforces my contention. The video reveals dishonest (and likely illegal) conduct by the Watergate Special Prosecutors Office and the Judiciary. This conduct remained hidden from public view for several decades and consequently was never redressed. The available Spygate evidence suggests that Mueller's team is similarly conducting itself with dishonest (and possibly illegal) methods, and has a similar expectation of getting away with it under the cloak of secrecy and deception. History teaches that this pattern will repeat endlessly until this abuse of power is exposed and the ensuing public outrage leads to prosecution of the real criminals.

    Nixon was brought down because he was reactive rather than proactive. I'm not dismissing the reality that DC politics is hardball, ruthless, and necessitates shrewd tactical combat. The Senate Intelligence Committee has possessed the fully unredacted Page FISA application since March 2017 (and then proactively leaked it to press), but to this day, none of the exculpatory parts have been revealed to the public. Had that occurred, the Special Prosecutor would now be focused on Spygate and not RussiaGate. Instead of a real criminal prosecution to restore the rule of law, we have a festering wound that may become gangrene soon.

  10. Unknown, your contention, as I understand it, is that Trump is "hunkering down" rather than "rallying", i.e., fighting back. That is exactly the opposite of what Shepard says, in contrasting Trump and Nixon. More specifically, your contention is that delay in implementing the declassification order is evidence of "hunkering down" and not fighting back. I disagree.

    Here's a central problem with your contention. You state that "Mueller's team is ... conducting itself with dishonest (and possibly illegal) methods, and has a[n] ... expectation of getting away with it under the cloak of secrecy and deception." I agree, and many other informed commenters on the Russia Hoax also agree. The problem with your contention is relating declassification to Mueller's tactics.

    The declassification order relates to events that transpired almost entirely before Mueller was appointed, thus implementation of the order would largely confirm what we believe we already know about pre-Mueller events: the perfidy of the FBI in particular, its collusion with the Clinton campaign, etc.

    Would this be sufficient to bring down Mueller, i.e., force an end to his witchhunt? At this point in time, I doubt it. Mueller is still being protected by Swamp players in place, in both the Legislative and Executive branches. However, I believe that Trump is patiently strengthening his board position (chess analogy) on both fronts, putting the pieces in place, so that with a new Senate and a new AG he'll be in a position to switch permanently to the offensive. That, I think, is the meaning of his reference to declassificed docs becoming "yesterday's news" if he declassifies now--to take full effect of declassification he has to have his pieces in place to go over to a permanent offensive and not merely "counterpunch" one time. I think that's sound, and has probably been confirmed by his closest advisers, especially Emmet Flood.

    Mark Penn, smart attorney and former Clinton strategist, has a very worthwhile article at The Hill today: Is Mueller team bludgeoning to get narrative it wants? In the article Penn characterizes the current flurry of Mueller Team activity as a "last-minute side show [that] shows the desperation of a team ... after two years of failing to find any collusion — and about this fact, there should be no confusion." IOW, Penn sees Mueller as failing over and over against a President who has proven far cannier than his critics and foes keep trying to convince themselves that he is. Rudy Giuliani's interview with the NYT today illustrates the same point. Trump appears to be saving declassification for the big offensive when Mueller is at the point of issuing a report--that way, declassification will not be "yesterday's news." It will dominate the headlines as part of Trump's offensive.

    I'm glad you liked Shepard. It's quite remarkable, especially for people like me who went to law school in those years.

  11. Another reason why Trump might want to prevent the declassified docs from becoming "yesterday's news": in case of impeachment. Ted Cruz sees it coming.

  12. I posted as Anonymous at 1012 above.

    When I use the term rule of law I assume an understanding of the first principle of equality before the law. Without this first principle the term becomes merely "whimsy of power".
    The point I was trying to make, ineptly apparently, is that for good or ill Trump has been entrusted with Durendal. I would personally prefer to see every character of every document in every filing cabinet in every office of the national government declassified and made public record tomorrow. In politics sunshine is the only disinfectant. I feel whatever "security" damage that might do will be inconsequential to me and mine compared to the certain tyranny of a Deep State victory. However, recognizing that Trump is my children's rear-guard (read last best hope), I must defer to his judgement as to when to sound the olifant. I only hope he does not, like Roland, delay sounding the clarion until it is too late and the host to distant to be of aide.

  13. I understand where you're coming from, Anon. I'm not really disagreeing--you can imagine that I want to see all the docs as much as anyone. However, Trump is in a position, thanks largely to Sessions and NeverTrump GOPers, in which he needs to use what he can as weapons, and so must weigh their use carefully, lest they lose effectiveness if used too soon. Tricky.