Things of value and urgent concerns.
What you saw today in Joseph Maguire’s testimony before Congress was a man who takes the oath to the constitution he has sworn to uphold 11 times over his career very seriously. Like many others before him during the Trump administration, Maguire’s commitment to that oath today had the ironic effect of protecting a president who doesn’t care at all about it, even though he himself took it when he put his hand on two Bibles at his inauguration.
Maguire operates in a system of rules, laws and military order — also of checks and balances — that was created two centuries ago with the assumption that the executive at the top would have respect for and commitment to that system.
Donald Trump has neither. That’s why Maguire said over and over today that the situation we find ourselves in is “unprecedented.” It is unprecedented because Trump has done something that every president before him would likely never do: solicit help from a foreign power for his own personal gain. Trump has done this because he does not subscribe to the same universal ideals of democracy that Republican and Democrat presidents alike have operated under for at least most of the history of this country.
Maguire’s actions after he learned of a whistleblower’s complaint against the president followed the hierarchy of order in which he has spent 40 years as a Navy veteran and civil servant. He went to the White House and asked if he could release the complaint regarding Trump’s unprecedented actions not because he was trying to aid in a cover-up, but because this is the first time that the subject of such a complaint was the president himself.
Get past all the semantics of the situation — whether Maguire believe the complaint fell under the legal definition of “urgent concern,” whether he should have ever wondered if it qualified under executive privilege — and you have something that is actually very simple: the president clearly violated federal election law, and the Justice Department decided not to pursue that case.
Don’t take that from me; take it from Larry Noble, a former lawyer with the Federal Election Commission who has argued that Trump’s actions during his call with the Ukranian president represent a direct violation of a portion of election law that deals with “contributions and donations by foreign nationals,” otherwise known as the foreign-source ban.
Specifically, Americans are not allowed to accept a “contribution or donation or other thing of value” from foreign nationals or governments, Noble reminded his followers today.
When I reached Noble this afternoon he was once again eyeballs-deep in the weeds of the Mueller report, working on an op-ed for CNN. We picked up on page 186 of the report, in which Mueller explains his decision not to prosecute members of the Trump campaign for their involvement in the infamous Trump Tower meeting.
That decision was based on two ideas: what constitutes a “thing of value” from the foreign-source ban and whether or not the meeting’s participants from the Trump campaign acted “willfully.”
First, while Mueller believed that the “dirt” on Hillary Clinton being offered by the Russians was most certainly a thing of value, he understood that courts have yet to classify such opposition research under that phrase, presenting a difficult legal challenge.
“Such an interpretation could have implications beyond the foreign-source ban [...] and raise First Amendment questions,” Mueller wrote in his report. “Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.”
Secondly, Mueller declined to prosecute because the meeting’s participants on Trump’s side were simply too stupid to know that what they were doing was illegal — a requirement to convict someone for violating election law.
“The investigation has not developed evidence that the participants in the meeting were familiar
with the foreign-contribution ban or the application of federal law to the relevant factual context,” Mueller wrote.
“I was actually offended by that,” Noble told me. “By saying that a presidential campaign may not know that they can’t accept assistance from a foreign national sets a pretty low bar.”
Oh, but that bar may get far lower. That’s because Trump’s actions on the call with President Volodymyr Zelensky — actions that represent a more egregious violation of the foreign-contribution ban because Trump solicited an election contribution in the form of an investigation into Joe Biden and his son — have apparently already been determined to be legal by the Justice Department.
One of the overlooked developments from Maguire’s testimony was his admission that, after reading both the whistleblower’s complaint and the accompanying report from the intelligence community inspector general, he took that information to the FBI to see if Trump’s actions were at all criminal. The FBI, we learned today, decided they were not.
According to Noble that decision “reflects this DOJ deciding a foreign government helping a campaign with opposition research or digging up dirt on an opponent is not a thing of value, and that’s a very dangerous thing.”
Like Maguire, the lawyers at the Justice Department were presented with an unprecedented situation in — once again — having to decide whether the president may have broken the law. Considering no court has ever said that opposition research is a thing of value, one can’t really blame those lawyers for declining to pursue an investigation. (Doing so would also be walking into a hornet’s nest of conflicts with a president who rails constantly about the “deep state.” Additionally, it’s worth mentioning that the DOJ is led by an Attorney General who has largely carried Trump’s water and believes in extremely broad interpretations of executive privilege.)
Thinking conspiratorially, one might believe that Bill Barr quashed the investigation into the Ukraine call because he’s a Trump sycophant. There’s probably an element of truth to that, but Maguire’s testimony today was indicative of a familiar pattern that indicates otherwise: Trump does something unprecedented, civil servants have to make a decision about it under the rules and systems that have guided their careers, and end up protecting a president who doesn’t believe in any of those things.
“What we’re stuck in is, everything’s unprecedented because pretty much everything this president does is unprecedented,” Noble said. “That’s not a shield. It’s not the more outrageous you get, the more protection you get.”
P.S. The photo on this post is from a friend’s bar in Dallas. Savannah is nice, and hot, just like Dallas but without all the traffic.