We live in a binary world. Computer code is driven by a series of zeros and ones. The human genome consists of on/off switches which determine whether we are healthy or diseased. And we are told there are TWO sides to every story. [Historical Footnote: This phrase was introduced into the American culture by John Adams in his 1802 Diary and Autobiography of John Adams and again in an 1817 letter penned by Thomas Jefferson.]
However, as we have seen in the past three years, this yes/no view of the world gives license to decision makers to forego the need to explore other alternatives. And we now know, in the public arena, this is not only a dereliction of duty but a dangerous precedent in future situations. Consider the following two examples.
On May 3, 2017, former FBI Director James Comey testified before Congress about his decision to release a letter on October 28, 2016 in which he announced he had directed the agency to reopen the investigation into Hillary Clinton’s emails. In response to questioning by Senator Diane Feinstein, Comey justifies his actions as follows.
Everybody who disagrees with me has to come back to October 28 with me and stare at this and tell me what you would do. Would you speak or would you conceal? And I could be wrong, but we honestly made a decision between those two choices that even in hindsight — and this has been one of the world’s most painful experiences — I would make the same decision.
Given only TWO options, one can argue Comey made the right choice. And I have no doubt, Comey, based on the available polling data, honestly believed it would make no difference. Although in hindsight he realized that assumption was flawed. Again, from his May 3 testimony.
Look, this is terrible. It makes me mildly nauseous to think that we might have had some impact on the election.
What makes ME more than mildly nauseous is Comey’s lack of intellectual curiosity. I wish he had been a reader of Deprogramming101 and seen the tagline, “Consider All the Possibilities.” By limiting his options to a binary choice, Comey creates a win/lose situation in which he (again I believe) unintentionally put his thumb on the electoral scale.
Fast forward to March 24, 2019 and Attorney General William Barr’s summary of the Mueller report. As did Comey, Barr creates a binary choice, the Department of Justice (DOJ) must either charge Donald Trump with obstruction of justice or not. And since Robert Mueller opted not to honor what could only be called a false dichotomy, Barr took it upon himself to exonerate Trump although Mueller explicitly did not.
While one can question Comey’s motives in the former case, this instance is not ambiguous at all. Though Barr claims he consulted with the DOJ Office of Legal Counsel (OLC), his actions are in direct violation of that office’s own policies concerning disposition of criminal cases against a sitting president. And more importantly, as Mueller outlined in his statement yesterday, the Constitution mandates no judicial officer, a special counsel or the attorney general, has the authority to determine whether the nation’s chief executive is guilty of crimes. That remedy lies elsewhere.
Which brings me to Robert Mueller and his eight-minute demonstration that there are more than two sides to every story. While everyone, Trump’s supporters and critics, expected Mueller to either bring charges against Trump or exonerate him, Mueller refused to be bound by a binary choice. In fact, he laid out a number of options yesterday, including:
- Focus on the true threat. Donald Trump will eventually be gone. Cyber warfare is here to stay.
- Do not expect me to relieve you of your Constitutional responsibility. Do something. But as presented below, that “something” is not a binary choice to impeach or not.
- Follow the rule of law, as I did, deciding the Constitution, not some OLC memorandum, was the basis for disposition of the results of this investigation.
- Identify instances where other officials violated the rule of law, e.g. Barr’s announcement the evidence did not warrant a charge of obstruction rather than rely on the Constitutional remedy.
Not bad for eight minutes of air time.
Like Mueller, House Speaker Nancy Pelosi is under pressure to make a binary decision. Begin impeachment proceedings or not. But there are other options which, given a chance, could be long-term game changers. And while I hate to admit it, one option is for Pelosi to take a page out of Mitch McConnell’s playbook. What if Pelosi made the following speech on the House floor when Congress reconvenes after the Memorial Day break.
An increasing number of members of my party and one Republican are pushing for us to begin impeachment proceedings against Donald Trump. They do this knowing the likelihood of his being convicted by a Republican controlled Senate is slim and none.
Maybe we should take a cue from the very distinguished (read lying, hypocritical SOB) Majority Leader of the Senate who said such decisions should be left to the voters. Therefore, today I and the chairs of the Judiciary, Intelligence, Finance and Oversight Committees are announcing a series of public hearings to address questions raised by the Mueller report. These include:
- The chief executive’s response to the sustained and systematic Russian attacks on America’s electoral process and whether that response constitutes a violation of his oath to “protect and defend the United States and the Constitution.”
- Instances where there is evidence of potential obstruction of justice related to the special counsel’s investigation of those attacks.
- Abuses of power where the chief executive has rewarded his allies and threatened to punish his opponents.
- Whether the chief executive is in anyway compromised as a result of business and financial entanglements with foreign governments or foreign-controlled entities.
- Whether the chief executive has violated the emoluments clause of the Constitution by profiting from foreign patronage of properties still owned and operated by the Trump Organization.
The purpose of these public hearings is to ensure American voters can make an informed decision next year not only on the choice of president, but also on the election of senators and representatives who believe no American is above the law and will faithfully execute their oaths of office to make sure no contrary precedent is established.
I have instructed each chair to ensure the hearings are fact-based, relying on physical evidence and the testimony of individuals with first-hand knowledge of an event or action. And I encourage my Republican colleagues to assemble and present any fact-based evidence they believe will contribute to this process.
To paraphrase William Shakespeare, “To impeach or not impeach. That is NOT the question.” The only question is what is the best way to preserve the rule of law and return to a sense of normalcy. It is not a question answerable with a series of zeros and ones.
For what it’s worth.