28.03.2019

Squirming on the hook

Howe Cheatem considers the trap ‘mainstream’ liberals have got themselves into through attempting to set up a prosecution of Donald Trump

On Sunday March 24 US attorney general William P Barr released his short summary of the Mueller report on alleged Russian ‘interference’ in the 2018 US presidential election.¹ The ‘take-home’ is that the Russian government did intervene in the election, but that there was no evidence that Trump or his campaign colluded with this; and that, while various of Trump’s actions in the ensuing period could be characterised as ‘obstructing justice’, Mueller declined to make a judgement on whether they did amount to that, leaving it to Barr. And Barr, applying the criminal law standards of construction of the crime (strict) and proof (beyond reasonable doubt), concludes that there are no grounds for prosecution.

Trump’s interpretation of this story was, naturally enough, that he has been thoroughly vindicated. He accuses the senior security officials who have briefed against him of ‘treason’ and “Democrats and the media” of “perpetuating the lie” of collusion with the Russians: “It was a false narrative,” and, ominously, “We can never let this happen to another president again.”² (‘Ominously’, because it could only be prevented by further expanding presidential power and impunity.)

It is extremely unlikely that Barr is flat-out lying on the content of the Mueller report, since, if he was, he would rapidly be caught out. On this basis, the demands of the Democrats to see the full report are mere damage limitation. It will, no doubt, be interesting when (if) we get to see the full report. But it is unlikely to help the people who made charges against Trump which have not been sustained.

Another form of damage limitation appears in an article in The Atlantic, where security insiders and Democrats have briefed Natasha Bertrand of that paper that Mueller, as reported by Barr, “was very focussed on criminal-law standards and processes” and that “a counterintelligence investigation” (ie, on whether Trump was ‘compromised’ by dealing with the Russians) would have a wider aperture than a strict criminal inquiry ...”³

This is just squirming on the hook. The investigation was set up on the basis that there was something criminal involved; and do the Democrats really want to make a rule that presidential candidates have to be cleared by FBI counterintelligence staff before they can stand, or before they can take office?

They seem to have imagined that a serious investigation would find a ‘smoking gun’, tying Trump either to Putin or to the various manipulations done on Trump’s behalf by lawyers and other agents. It has not, and none of what is alleged against Trump amounts to a Watergate burglary.

Two years ago I wrote an article in this paper under the title, ‘Put not your trust in judges’.⁴ The point of the article was to expose the illusions of the mainstream left in litigation as a form of political activity. The ‘Miller’ litigation, demanding that parliament had to invoke article 50 for exit from the EU, ended not with a bang, but a whimper, as the government only needed to pass a short act of parliament authorising article 50. The primary effect of the litigation was to allow the Brexiteer MPs and press to grandstand about judges as ‘enemies of the people’.

Indeed, the statutory authorisation of article 50 under the result of the litigation set up the present situation, where the default position is a no-deal Brexit and Theresa May can run the clock down in the hope that the Parliamentary Labour Party will panic and allow Labour to be cast as representatives of the metropolitan elite opposing Brexit. Without the litigation and without a statute, the Brexiteers would now have fewer legal, timetable and political cards in their hands.

I made the point two years ago that the litigation over Trump’s ‘Muslim travel ban’ would at most achieve temporary success and a modification of the ban, while allowing him to grandstand to his supporters as a guy who controls brown-skinned immigration, against the anti-democratic opposition of the liberals. So it proved, when in June 2018 the US supreme court by a five-four majority upheld the validity of the third version of the ‘Muslim ban’ (which removed some countries, and added non-Muslim Venezuela and North Korea, in order to make the travel ban look more political and less racial-religious).⁵

Meanwhile, of course, Trump has got onto the supreme court two far-right extremists - Neil Gorsuch and Brett Kavanaugh - making any future litigation less likely to succeed. For example, the court will probably decide that Republican gerrymandering is not illegal in cases to be heard this week, though the decisions will not be immediate.⁶

Principle

The Mueller investigation and the Democrats’ agitation around it is a worse case than either the Miller Brexit litigation or the litigation around the ‘Muslim travel ban’. The reason is that both of these cases were politically misguided attempts to use litigation to fight for genuine principles.

Miller no doubt hoped that if a vote was held in parliament, that would block the invocation of article 50. This was a manoeuvre, rather than a fight for principle. But the principle that parliament, rather than the executive, should decide about a decision which will have a profound impact on the law was fundamentally important.⁷ The Brexiteers’ claims that it was undemocratic reflect their Bonapartist demagogy and the generally anti-democratic character of referenda. The problem was not the principle, but that the method of litigation was counterposed to an effective political mobilisation.

The litigation around the ‘Muslim travel ban’ was more transparently principled in its purpose. It was simply fighting against racism directed against ‘non-white’ migrants (under a pretence of religious ‘Islamophobia’, and this in turn under a pretence of ‘anti-terrorism’). Again, the method of litigation served to facilitate racist demagogy and mobilisation and prevent anti-racist mobilisation.

But the Mueller investigation is a bad method pursued for bad demands. The method is trying to set up the conditions for a prosecution of Trump. For what? The allegation (not sustained) is that Trump, or actors in his campaign, colluded with the Russian state in its ‘fake news’ and related activities in support of Trump’s campaign (or against Hillary Clinton’s campaign); and then that Trump and his agents have run a cover-up (“obstruction of justice”).

So what have the liberals been demanding with this investigation? Not, certainly, that there should be an end to fake news and fraudulent media manipulations in connection with elections: they have been guilty of such conduct themselves and do not propose to get rid of the advertising-funded media that makes it work, or to set up an independent workers’ media to counter it.

Nor are they demanding the abolition of the Bonapartist office of president or of the tortuous electoral process which led to a (marginal) minority of the votes cast producing an electoral majority for Trump. Rather, the demand is simply that the Russian state (or, more particularly, persons associated with the Putin administration and likely to be connected to the Russian state) should not interfere in US elections.

The context of this interference, it should be remembered, is that Hillary Clinton’s electoral rhetoric was gung-ho for war, both in the Middle East and in support of Ukraine against Russia.⁸ Trump was all over the place, but he suggested that he might take a more ‘realist’ approach to Russia in particular. His appearance of foreign policy ‘realism’ may, in fact, have won him the election.⁹

The context is also that the Israeli state absolutely routinely intervenes in US internal politics through its American Israel Public Affairs Committee lobby group. This case is particularly visible, because opponents want to blame Israel for a Middle East policy which is pretty certainly determined by US global geopolitical interests.¹⁰ But the point is not that the Israel lobby should be regarded as in some way more illegitimate than other lobbies: it is merely particularly visible. There are endless lobbies operating in Washington politics. It is to be assumed, therefore, that other foreign states attempt to intervene in US politics.

Why on earth should it be considered illegitimate for them to do so? After all, the US runs a military on a global scale, massively outweighing in spending and firepower of other states.¹¹ It claims extraterritorial jurisdiction for its courts (to the point that in the past, the US’s close ally, the UK, has felt the need to impose sanctions against US claims for extraterritorial jurisdiction¹²). The US runs a series of state-sponsored NGOs, which pursue ‘regime change’ in various countries, and some of which have certainly attempted (not very successfully) to intervene in Russian elections.¹³

If the US is to claim in this way to rule the world, it inherently follows from any idea of democracy that the rest of the world should have a voice in US elections - and not just those states which the US itself chooses as favoured friends.

I do not mean by this to endorse the Russian disinformation operations in 2016 - or any such behaviour with regard to elections. The point is that when liberals sought an enquiry into Russian ‘interference’ in 2016, and alleged ‘collusion’ from the Trump camp, they were not fighting for democracy at all. They were fighting for American nationalism.

And this liberal nationalism and warmongering will quite inevitably be outbid by the more open nationalism (coupled with dog-whistle racism and sexism) of the right. The Mueller inquiry was a litigation trap, but a litigation trap which would not merely promote the right’s demagogy against the left’s supposed elitism. It actually promoted the political ideology of the right.

The litigation traps have been the delusive policy of the liberals. The left proper - the workers’ movement - could pursue a policy of independently building an opposition to both the right and the liberals, and thereby counter the grassroots mobilisation of the churches, Tea Party, Trumpists, and so on, with a battle for an alternative politics.

So far, however, the left has tended to cling to the liberals, under the principle of the people’s front - or on the basis of the idea that defensive struggles come first, or that a ‘transitional approach’ is needed, which starts from the ideas which are currently fashionable. But clinging to the liberals will inevitably lead to us going down with their sinking ship. We need to chart an alternative and independent oppositional course - just as much in the US as in Europe.

Notes

www.bbc.co.uk/news/world-us-canada-47675576.↩
‘Witch-hunt leaders are guilty of treason, Trump declares’ The Times March 26.↩
www.theatlantic.com/politics/archive/2019/03/barrs-summary-omits-key-aspect-muellers-report/585703.↩
Weekly Worker February 16 2017.↩
www.scotusblog.com/2018/06/opinion-analysis-divided-court-upholds-trump-travel-ban.↩
www.scotusblog.com/2019/03/argument-preview-justices-to-tackle-partisan-gerrymandering-again.↩
When the European Court of Justice subsequently decided that the UK parliament could, if it wished, revoke article 50, it cut away the ground on which the Miller case was immediately decided. But it did not make the litigation anti-democratic.↩
See, for example, C Ehrlich, ‘The Kremlin really believes that Hillary wants to start a war with Russia’ Foreign Policy September 7 2016.↩
Eg, D Kriner and F Shen, ‘Battlefield casualties and ballot box defeat: did the Bush-Obama wars cost Clinton the White House?’: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2989040.↩
Cf M Machover, ‘End of a love affair?’ Weekly Worker May 24 2018; ‘US imperialism and the role of Israel’ (www.israeli-occupation.org/2016-06-13/moshe-machover-us-imperialism-and-role-of-israel).↩
Mail Online May 12 2017.↩
Protection of Trading Interests Act 1980. See also, more generally, V Lowe, ‘US extraterritorial jurisdiction: the Helms-Burton and D’Amato Acts’ International and Comparative Law Quarterly Vol 46 (1997), pp378-90.↩
www.cfr.org/backgrounder/soft-power-democracy-promotion-and-us-ngos; a defence in The Atlantic by TO Melia, ‘Russia and America aren’t morally equivalent’, February 27 2018 (www.theatlantic.com/international/archive/2018/02/election-meddling-democracy-promotion/554348).↩