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‘No Harm, No Foul’ Is No Defense

Even attempted acts of corruption subvert the rule of law.
November 6, 2019
‘No Harm, No Foul’ Is No Defense

Twenty-seven-year old Richard Holzer was arrested in Colorado on November 4. He was charged with domestic terrorism in a plot to blow up a Pueblo synagogue. Police swooped in after Holzer had received what he thought were two pipe bombs and some dynamite. “Absolutely gorgeous!” he exclaimed. His “co-conspirators” turned out to be government agents. 

According to the logic some Trump defenders are applying to the president, Mr. Holzer should not be held accountable because “nothing happened.” Rich Lowry, for example, acknowledges that President Trump improperly pressured a weak ally to open an investigation into Burisma and withheld congressionally authorized military aid, which was a misuse of power.  But he argues that the offense is nullified because Ukraine ultimately got the aid. “You might say it never should have gotten to that point. What you can’t say is either that the money was ultimately kept from the Ukrainians, or that they opened an investigation of the Bidens.” No harm, no foul?

In a similar vein, Trump defenders concede that the president attempted to obstruct justice by ordering Robert Mueller to be fired, instructing officials to falsify records, and more, but that since his staff didn’t carry out these instructions, it’s all okay. The system works. The guardrails are in place.

There are a number of problems with this logic. 

Not all of President Trump’s abuses of power require underlings to carry them out. He has asked China to investigate the Bidens on national television, and invited Russia to interfere in a U.S. election in the same fashion. He has declared a spurious national emergency to redirect funds for a purpose not approved by Congress. The guardrails failed.

He has also publicly engaged in witness tampering. Just in the past few days, he has been on a public crusade to reveal the identity of the whistleblower in the Ukraine case. The whistleblower’s testimony, please recall, was at first dismissed by Trumpworld as irrelevant because it was “second-hand.” Since then, a parade of witnesses, including members of Trump’s own national security council staff, have provided first-hand accounts that confirm the whistleblower’s account. His job is done. But Trump wants to make him the issue. He compared the whistleblower to a spy, and publicly fantasized about executing him.

Trump commonly accuses those who tell the truth about him of “treason.” By attempting to unmask the whistleblower, Trump is engaging in misdirection — hoping to make that person the issue rather than the outrageous behavior Trump himself engaged in. He may also be violating the terms of the Whistleblower Protection Act and follow-on legislation that permit government employees who identify misconduct to remain anonymous unless the inspector general determines that “disclosure is unavoidable.” But above all, he is engaging in retaliation. Trump surrogate Sen. Rand Paul told a jeering crowd Monday night “I say to tonight to the media: do your job and print his name.” 

That is a clear message to anyone who might dare to file another complaint against this administration, and it represents a gangsterish abuse of presidential power.

This isn’t the first time Trump has attempted to manipulate witnesses. Sometimes he threatens, other times he dangles pardons. When Paul Manafort was indicted, the president publicly praised him for not “flipping” — in other words, the president of the United States discouraged a former employee from cooperating with law enforcement. Later, when the Mueller team announced that Manafort had violated his cooperation agreement by repeatedly lying, President Trump declined to rule out a presidential pardon. “It was never discussed, but I wouldn’t take it off the table. Why would I take it off the table?” 

Trump has made no secret of his belief that he is above the law, arguing that he could not even be investigated for a murder while holding office, so it’s hardly shocking to learn, as the New York Times reported, that Trump instructed his Homeland Security Secretary to close down the border to immigrants entirely, which violates a number of statutes. If Kevin McAleenan encountered legal trouble, Trump assured him, he would issue a pardon.

Nor should we assume that the misconduct we know about is all there is. How many other nations has Trump strong-armed, and for what purposes? We could fill encyclopedias with Trump’s known misconduct, so it stands to reason that there is more going on that we have no knowledge of. The argument that his staff is preventing bad outcomes is refuted daily — the Syria debacle, the disgraceful spectacles with Kim Jong Un, the suggestion to shoot immigrants, etc.

Additionally, Trump’s administration is losing honorable officials at a rapid clip. The people who had the integrity to defy his unlawful demands are gone. Former Chief of Staff John Kelly said this explicitly when he told an interviewer that he had warned Trump not to hire “yes men” because if he did, he would wind up being impeached. Trump hired Mick “Of-Course-There-Was-A-Quid-Pro-Quo-Get-Over-It” Mulvaney as Kelly’s (acting) replacement. 

Far from preventing Trump’s malversation, Trump’s staff, his public cheerleaders, and Republicans in Congress are actively encouraging it — and worse. Once-honorable officials like Attorney General William Barr and Secretary of State Mike Pompeo, rather than steering the president away from conspiracy theories and false accusations against blameless officials, have justified and enabled the president’s behavior. And the more top officials — and commentators — get in the habit of serving as yes men for a corrupt president, the more atrophied their consciences will become, and the more damage they do to public integrity.

Mona Charen

Mona Charen is Policy Editor of The Bulwark, a nationally syndicated columnist, and host of The Bulwark’s Beg to Differ podcast. She can be reached at [email protected].