briefing, Albert Mohler

Wednesday, December 11, 2019

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Wednesday, December 11, 2019. I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

House Democratic Leaders Release Two Articles of Impeachment: What Happens Next?

Yesterday, the Democratic leadership in the Judiciary Committee of the House of Representatives released Articles of Impeachment to be voted on by the Committee on Thursday, and if approved by the Committee as expected, by the House of Representatives sometime next week. The actual text of the Articles of Impeachment begin with this formal language, “Resolved that Donald J. Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following Articles of Impeachment be exhibited to the United States Senate.” The constitutional background to this is the fact that there is an impeachment clause in Article II of the U.S. Constitution concerning the President of the United States, and the language, high crimes and misdemeanors, is the constitutional language. Although, of course, it is a largely non-defined constitutional language.

Impeachment in any context is an inherently political act. It is undertaken by elected officials in the House of Representatives, the trial is then undertaken by elected Senators in the United States Senate, and the person at the center of the impeachment case, in this particular instance, is the elected President of the United States. So given that fact alone, we are looking at an inherently political process. Then you add the deep partisan divides that now mark the United States, and there is no way that this is not an overtly political act. Political acts leading up to the Articles of Impeachment, a political act by the Judiciary Committee, and of course eventually by the Senate, and so it goes.

But to say that an act is inherently political does not mean that it is not deeply significant. This is, after all, only the third time in the history of the United States of America that formal impeachment articles have passed this far through the United States House. That is, in itself, not only historically, but morally significant. It tells us that we are at a moment of tremendous political tension in the United States. There are those who are declaring that we are in the midst of a constitutional crisis. But that language is actually quite overblown. The best evidence for the fact that it is exaggerated is the fact that everything that is taking place right now is taking place within the constitutional order. You only have a constitutional crisis when that constitutional order breaks down. You don’t have a crisis when the order is working.

But at the same time, in this deeply partisan age, given the deeply political aspect of these impeachment proceedings, we are looking at what cannot be described at this point as a trophy of American constitutionalism. We’re looking at a very odd moment, and we are likely to see many other odd and awkward moments during the weeks and months ahead.

Even as there had been conjecture that Democrats on the House Judiciary Committee had planned perhaps four or five articles of impeachment, when released yesterday, there were only two. We need to look more closely at what they actually represent. The first was abuse of power. The second was obstruction of Congress. When it comes to abuse of power, the case made by the Democratic leadership as represented in this article of impeachment is that the President used his office for his own personal interest rather than the national interests of the United States of America. Abuse of power is a very powerful moral and political charge, but it is also inherently subjective. When is a President doing something that is unwise? When is a President doing something that is wrong? When is a President doing something that history will see as not in the interest of the United States? When is a president actively abusing his office? That is not so easy a line to draw.

Similarly, the second charge of obstruction of Congress is more formal than previous similar charges that had been addressed in the other two occasions in which impeachment articles had reached this formality. The factual basis to which the articles point is the fact that the President of the United States refused to cooperate with the House investigation, and also ordered members of his administration not to give testimony, nor to turn over documents demanded by Congress. But you’re also looking at something that is not only somewhat subjective, but is incredibly partisan, because you’re looking at the fact that it was Democrats demanding the documents, Democrats demanding the officials to testify. But when you look at the charge of obstruction of Congress, there is no doubt that it has legal bite, but the extent of that legal bite is questionable given the separation of powers and the constitutional assignments that are given to the President of the United States.

This raises the longstanding American principle of executive privilege. These issues are often hammered out, eventually, in the courts. But executive privilege means that there is certain information, there are certain conversations, there are relationships that originate with the President and are privileged, including some conversations between the President and senior American staff, the President and American diplomats. You’re looking at documents, you’re looking at international communications, you’re looking at internal administration documents, and you’re looking at another potential huge constitutional issue hanging over not only this impeachment proceeding, but the future of the American Presidency.

In a report from the Washington Post, Sarah Burns is quoted. She’s a constitutional law expert at the Rochester Institute of Technology and a specialist on impeachment. She said that no president has been specifically and only accused of obstructing Congress. But she went on to say, “It seems like a big assertion of congressional power, and specifically the power of Congress to investigate the Executive.” She continued, “This would be bold in a way we don’t tend to see from Congress, which tends to snipe at the Executive from the sidelines, and then ask in exasperation what they could do to stop him.” An amazingly insightful statement from this constitutional law expert. This is, indeed, an incredibly bold and, I think, unhealthy assertion of congressional authority.

There was no surprise that the Democratic leadership in the House of Representatives eventually released Articles of Impeachment against President Trump, no surprise at all. There is no surprise that abuse of office and obstruction of Congress are included amongst the charges. What is surprising is that they are the only two charges brought. And this leads to a couple of very interesting questions.

What happened to bribery? Bribery was the word that was increasingly used, especially by the Democrats on the Judiciary Committee, after we now know the Democratic leadership had done a marketing survey of words and found out that that was the word that caught the greatest amount of American attention. But what’s really significant here is the fact that even as the Democrats on the Judiciary Committee used the word over and over again during the televised hearings, they did not bring that specific charge. Why did they not? Because bringing that charge would have required a legal specificity that they were unwilling to offer. That tells us something very, very important.

The second question is likened to it. Why did the Democrats on the Judiciary Committee not bring a specific Article of Impeachment concerning the charges of obstruction of justice they brought up again and again in the aftermath of the Mueller investigation? As of Monday of this week, it was expected that the House might bring as many as four or five articles, as we said, but only two. That tells us that in light of history, those who at least framed these articles did not believe that they had a realistic chance of convicting the President of the United States on those other charges. Thus, they’re trying these two rather nebulous charges. The word “nebulous,” by the way, actually used by some major media in coverage of events yesterday.

It is interesting to note that the Editorial Board of the Washington Post declared, “The House of Representatives is moving toward a momentous decision about whether to impeach a President for only the third time in U.S. history. The charges brought against President Trump by the House Judiciary Committee are clear: that he abused his office in an attempt to induce Ukraine’s new president to launch politicized investigations that would benefit Mr. Trump’s reelection campaign, and that he willfully obstructed the subsequent congressional investigation.” Notice that in introducing the second sentence, the editors of the Washington Post said that the charges against the President are clear, and yet it took no less than a half dozen articles in that same newspaper to explain what these supposedly clear charges actually are.

It is also very telling that Aaron Blake, reporting for the Washington Post, introduced his article with these words, “Democrats have known for a while that they were going to impeach President Trump, they just needed to figure out exactly what for.” Aaron Blake is actually second-guessing the Judiciary Committee and the Democratic leadership who framed these impeachment articles because, as he summarized at the end of his article, “You have to wonder whether a more focused impeachment argument that relied upon more specific offensive and more extensive public evidence might have been more compelling.”

But staying with the very same newspaper, the Washington Post, that reached its current journalistic stature through its coverage of the Watergate scandal in the 1970s, the paper also ran an article by Jennifer Rubin entitled, “For articles of impeachment, less really is more.” Rubin more or less congratulates the Democratic leadership on the more ambiguous charges they have brought against the President saying, “First, proceeding under abuse of power gets the Congress away from legalistic arguments over what constitutes bribery, for example, or whether he extorted Ukraine. Impeachment,” she wrote, “need not rest on a criminal offense. Avoiding criminal sounding terms allows Congress to avoid even trying to prove legal claims which can require specific intent and suggest that beyond a reasonable doubt is the correct standard of proof.” Once again, a columnist writing from the left is incredibly candid about the reality of these articles.

So where do we now stand? We should expect that the House Judiciary Committee will vote by the end of this week along partisan lines. It will be virtually like what we saw in the House Intelligence Committee. We’re going to see almost all the Democrats, if not all, vote for the Articles. We are unlikely to see even a single Republican to vote the same way. It’s going to be an up-down party vote in the Judiciary Committee. It is then likely to be an almost partisan up and down vote, eventually, perhaps as early as next week, when the entire House of Representatives considers the Articles of Impeachment. But given the Democratic majority and the clear intent of the Democratic leadership in the House, it is nearly a foregone conclusion, at this point, that the President will be impeached, and that the charges will then be forwarded to the United States Senate.

It is likely there that you will notice a very different kind of moral and constitutional argument, given the decorum of the United States Senate, and the specific responsibility of the Senators sitting as what is effectively a jury in what amounts to a trial of the President of the United States. You are likely to see Republicans there follow a very different argument than Republicans in the House. Republicans in the Senate are far more likely to say, “Yes, the President did something wrong. What he did was unbecoming of a President of the United States.” But they’re going to say, at the same time, it is ridiculous that there should be Articles of Impeachment brought against a President for these particular charges.

In the Senate, there is a Republican majority, but it also takes two-thirds of senators to remove a President. That would mean that it would require the votes of all of the Democratic members of the Senate, plus at least 20 Republicans to remove the President of the United States from office. That is not only unlikely, it is really, at this point, not even in the realm of political possibility because to this point, there has been inadequate argument presented that would give us an indication that even one Republican member of the United States Senate is likely to vote for the removal of President Trump.

And that is exactly what was foreseen by the Speaker of the House of Representatives, Nancy Pelosi, when months ago, she at least apparently sought to prevent this kind of impeachment proceeding. She said then, as did other Democratic leaders in the House, that there should be no impeachment process if it were not clearly bi-partisan and would reflect to the votes of Republicans as well as Democrats. Not only has that not happened, it has not happened spectacularly.

On this story, I’ll just conclude by going back to that statement may by Aaron Blake in the Washington Post when he said Democrats have known for a while that they were going to impeach President Trump, they just needed to figure out exactly what for. The articles released yesterday indicate the “what for” in the minds of the Democratic leadership. We’ll now see where it goes.

Part II

One Report, Two Interpretations: What the New Report on the FBI Means Depends on Where and How You Read the Story

But next, there was another big story with deep constitutional and political implications in the United States. The headline in the New York Times yesterday, “Report Debunks Anti-Trump Plot in Russia Inquiry.” The subhead reads, “But Inspector Finds Major FBI Errors Tied to Wire Tap.” A team of reporters for the New York Times reported, “FBI officials had sufficient reason to open the investigation into links between Russia and Trump campaign aides in 2016, and acted without political bias, a long awaited report said Monday. But it concluded that the inquiry was a rushed and dysfunctional process marked by serious errors in documents related to a wiretap.”

Now, we’ve spoken about the partisan divide in the United States Congress. We need to consider the partisan divide in the media, with the vast majority of the mainstream media leaning not only left, but clearly in support of the Democratic Party. And that has never been more evident, perhaps, than in the coverage of the report from the Justice Department’s Inspector General on Monday. The headline in the New York Times spoke first of debunking an anti-Trump plot. The Washington Post to the Los Angeles Times, newspaper after newspaper basically made the very same claim. One newspaper stands out as an alternative. That newspaper was the Wall Street Journal. The headline in the Journal the very same day was this, “Report Points to FBI Failures, Sees No Bias in Russia Probe.”

We’re looking here at a vast political conflict. What’s behind it? In the midst of the 2016 campaign, the FBI went to the FISA court to obtain a warrant for secret wiretapping of Trump campaign officials, claiming that there was evidence that they were colluding with Russia. We now know that the instigation of that information had come from those who had ties to the campaign of Hillary Clinton as she was running for President of the United States against Donald Trump. We can also see in the Inspector General’s report the fact that there was enough evidence presented to justify the FBI launching an investigation. It eventually became a rather comprehensive investigation.

Once this became known and was intertwined also with controversy over James Comey as the Director of the FBI, a very complicated political situation, the Trump administration immediately complained that this was an attempted coup on the part of the deep state, including the FBI, with the FBI investigating his campaign with fraudulent claims made to the FISA court. Democrats, on the other hand, claimed that the FBI was just doing its job. And of course, this eventually led to what became known as the Mueller investigation.

But I looked at the news report from the New York Times. Let’s consider the opening to the editorial statement by the Wall Street Journal. “The press corps is portraying Monday’s report by Justice Department Inspector General Michael Horowitz as absolution for the Federal Bureau of Investigation, but don’t believe it. The report,” says the Editorial Board, “relates a trail of terrible judgment and violations of process that should shock Americans who thought better of their premier law enforcement agency.”

At the center of this, of course, is former FBI Director James Comey, who is declaring that this report has vindicated the FBI and himself. But William McGurn, Lead Columnist of the Wall Street Journal, points out that there is no such vindication. And we also now know that the Former FBI Director, when he was in office, misrepresented certain of his actions and leaked confidential information.

As McGurn writes, “In August 2019, Mr. Horowitz’s office,” that’s the same Inspector General, “released still another report, this one dealing with Mr. Comey’s leaking of memos detailing confidential conversations he’d had with President Trump. In addition to highlighting Mr. Comey’s dishonesty towards the FBI agents dispatched to his home to retrieve the memos, the Inspector General scored Mr. Comey for setting a dangerous example for the Bureau. Later, Mr. Horowitz testified that he’d recommended Mr. Comey, the Former Director of the FBI, be prosecuted.”

In analysis, just consider, again, it matters tremendously which headline you’re reading here and whether or not you’re actually going to read the report. The major media understand that the vast majority of Americans will never read the actual report, and thus they are entirely dependent upon the media coverage. That’s a matter of concern to anyone who cares about the United States.

Part III

Why Was the FBI Established in the First Place? The Expanding Nature of Both Crime and the FBI Throughout American History

But furthermore, there is another huge background issue that should be of interest to Christians, and this has to do with the nature of the FBI in the first place. The FBI is dated in the United States only back to 1908. Now, just consider that the Constitution is dated back to 1789, so you’re looking at well over a century before the United States federal government had any Bureau of Investigations. Why did it emerge in the year 1908? The answer is a background of anarchist threats that included the then recent assassination of the President of the United States, William McKinley. The czar of Russia had also been assassinated by anarchists, and anarchist movements claiming to bring about the downfall of all government were spreading throughout much of Western civilization. The Bureau of Investigations was established in order to allow the federal government to coordinate investigation of suspected subversive organizations.

But it was extremely controversial. It is because of the constitutional principle of American federalism. It was believed throughout most of American history that the federal government should not have a Bureau of Investigations, but rather that such investigations should be left to the States and local governments. But by the time you reach the early 20th century, America is a fast-growing nation, and it has grown in the land all the way from the Pacific to the Atlantic, a transcontinental nation. It is a modern nation in the early 20th century with increasingly modern problems, and some of those problems involved both subversives and crime.

President Theodore Roosevelt, who became president after the assassination of William McKinley, was a progressivist in government and believed in an expansive federal government system, and thus he began to give impetus for what became the Bureau of Investigations in 1908. It did not become the so-called Federal Bureau of Investigations until the 1930s. During the 1920s, the Bureau of Investigation, as it was known, gained political credibility largely because of the spread of gangsters and organized crime. During the era of prohibition, the Bureau of Investigations became the key federal agency trying to stop bootleggers and smugglers bringing alcohol into the United States. That became a fuel for the expansion of organized crime and gangsters at the time.

But it was also that expansion of crime and a public perception of a crime wave in the United States that led to the expansion of the Bureau of Investigation into the FBI, the Federal Bureau of Investigation in the year 1935, during the administration of Franklin Delano Roosevelt. But then as you trace the further expansion of the FBI, consider that the 1930s was followed by the 1940s, and in the midst of World War II, there was the very real danger of espionage against the United States. We now know, for example, that the United States was infiltrated by Nazi spies and also by some Japanese spies, and that the Federal Bureau of Investigation began to take on a responsibility in Washington to lead point in the effort to try to shut down such espionage against the President of the United States.

Add to that, that by the end of the 1940s, the world was entering the so-called Cold War. With the great ideological battle between the United States and the Soviet Union, the espionage threat from the Soviet Union was far more massive even than the threats during World War II, and the FBI began to grow exponentially during that time. Between the 1920s and the 1990s, the FBI also became very popular with the American people because of its much publicized war on organized crime. Back in 1953, the FBI established what became known as the Top Hoodlum Program in which, for the first time, the federal government acknowledged the reality of organized crime, later going by names such as the Mafia or La Cosa Nostra, but also covering other kinds of organized crime that were not nationally or ethnically identified.

Furthermore, during the 1990s, and especially after 9/11/2001, the FBI was also given lead responsibility as an antiterrorist organization. So by the time you reach the end of the 20th century, the FBI has emerged as one of the most respected law enforcement and investigation organizations to be found anywhere in the world. The American people have greatly respected the FBI.

But at the same time, Christians understand that the concentration of this kind of responsibility brings enormous opportunity for wrongdoing as well. We now know that that has characterized the FBI at many points in its history. Most importantly, going back to 1924 and the emergence of J. Edgar Hoover as the decades-long leader of what became the FBI in 1935. We now know that J. Edgar Hoover approved such things as illegal wire taps against leaders of the Civil Rights Movement. We also know of other incidents that led to a very real concern on the part of the Congress that the FBI had grown out of control and beyond accountability. Congress, trying to bring that accountability, for example, limited the term of the FBI Director to 10 years. But then we also had the scandal of the involvement of the FBI’s director in the 2016 presidential race, that would be none other than James Comey, and all of that further led to the politicization of the FBI.

Of course, Christians understand the necessity of this kind of law enforcement. We understand the necessity of trying to prevent espionage. We understand that the United States has interests, and thus we all have an interest in protecting the United States from its enemies at home and abroad. We understand as Christians that crime is real. We also understand that the threat of crime does justify some kind of organization like the FBI. We’re also absolutely aware that the vast majority of those who do now work for the FBI and have worked for the FBI are honorable individuals who intend only to uphold the Constitution of the United States and to protect this nation. But when you are looking at a nation this large, when you’re looking at an FBI of this magnitude, when you are looking at the fact that so much of what it does is shrouded in secrecy, then you understand there is also opportunity for deep suspicion.

But as we come to the end of this consideration, consider that, once again, we are looking at how a constitutional order works. You’re looking at the fact that the FBI is not beyond accountability. It has an Inspector General, whose report had to be released to the public. That report released Monday is deeply embarrassing to the FBI, even more embarrassing upon a closer look.

The most troubling part of the report from the Inspector General, though, is where the Inspector General reads motivations and says there was no political bias. The record just does not justify that claim. But the report was made publicly, even though it’s being interpreted to the public by most of the mainstream media. We saw how those headlines are running. But the reality is that our democracy is well served by the fact that the report was released, and eventually, the American people have at least the opportunity to draw their own conclusions about what it means.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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