Has Trump gone squish on DACA, Mueller probe?

Has Trump gone squish on DACA, Mueller probe?

I’m not buying it.  The big news Wednesday was that Trump said he was looking forward to talking under oath with the Mueller team.  The big news Thursday is that Trump will agree to a path to citizenship for 1.8 million people here illegally, a process said to involve 10 to 12 years and “morphing.”

Oh, and Trump will require $25 billion for a wall.  He wants any immigration/border security agreement to end “chain migration” and the green card lottery.

Intriguing as the morphing thing is, this doesn’t sound to me like Trump caving.  It sounds to me like Trump negotiating.

It’s interesting that so many can’t seem to keep their heads around Trump, even when observing him from a distance.  Pondering why that is, and the fact that it’s the problem of each individual who can’t keep his head – otherwise what do moral accountability and the idea of adult responsibility even mean? – would be a full-time job, for those who are up to it.

It’s not Trump’s fault that so many people misread him, and keep thinking he’s dumber, more foolish, more incompetent and pointlessly bombastic and whatever than he keeps turning out to be.

There’s nothing you can do about Trump, but you can control your own reactions.  Or, at least, if you can’t, you certainly shouldn’t be eligible to vote, own a firearm, or take out a mortgage.  Yet every time Trump twitches, it seems millions of people also start twitching as if they just can’t help themselves, instead of recognizing that he has patterns, like everyone else, and the patterns can be analyzed soberly.

Trump said all kinds of things before the recent government shutdown that lasted three days and burned the Democrats.  (Was that only a week ago?)  Some of those things alarmed his own base, causing them to fear that Trump was going to cave.

Those same things gave hope to commentators at MSNBC and CNN.  Yet Trump said other things that drove the MSM commentators up the wall and straight toward the cliff going 120 mph.

The bottom line, however, was that the Republicans in Congress knew Trump wasn’t afraid of the shutdown and had their backs.  How did Congress know that?

Trump hasn’t been caving.  It’s that simple.  But you do have to look beyond the tweets, the verbal eruptions, and the endlessly frenetic media coverage to see the pattern.

Trump has continued to do what (a) falls constitutionally within his discretion, and (b) he believes is the right thing to do, in the teeth of the most amazing onslaught of vituperation and fury any of us can ever remember seeing, from his opponents in the media, the culture, and politics.

Look at the immigration policy issue, as compared to the shutdown.  The Democrats forced the shutdown by withholding compromise when it took 60 votes to break their filibuster in the Senate.  Yet before the shutdown, they could have had the same deal they eventually ended up with.  They didn’t have to force a shutdown at all.  They did it anyway.

Once they had shut the government down, Trump told the Democrats that no negotiations would restart until the government was back up and running.

On Monday, three days after the shutdown began, enough Democrats in the Senate agreed to another continuing resolution (CR) to restart government operations.  They got nothing that wasn’t included in the CR from Friday.  Even their MSM supporters lambasted the Senate Democrats for going out on a limb to no purpose, and then folding.

What we can take from this is that Trump means what he says about funding the wall, and ending chain migration and the green card lottery.  Notice that he has framed the path to citizenship with an indefinite scope.  In congressional politics, 10-12 years might as well be 1,000.  And “morphing”?  That could mean anything.

But ending chain migration and the lottery?  Not hard to define at all, and Trump has put down his marker.  The wall is there, and the Democrats know by now that no matter how hard they howl, it’s going to keep being there.

From a clear-eyed perspective, Trump has just outlined a deal that, by any reasonable standard, ought to keep the Democrats interested and at the table.  But it’s a deal they probably can’t actually make.  That’s because their base won’t let them.

Consider this possibility: that they’ll have to do something else instead, if they want that wall to go away, and if they want any flexibility on the chain migration part.  (The lottery has to be toast.  It’s indefensible.)  The wiggle room is in what exactly happens with the DACA recipients.

That’s what the Democrats wanted the Republicans to have no wiggle room on.  But after Trump’s marker, it’s not advantage Democrats.

The Democrats can strike immovable attitudes on DACA all they want, but they can’t make the path to citizenship non-negotiable, because they only get some or most of what they want if they fund the wall to Trump’s satisfaction.  Which they can’t do.  So the path to citizenship gets sliced, diced, and negotiated – which is how it always should have been done.  Congress will do the parleying on that, not Trump.

(It wouldn’t surprise me if there’s another stopgap measure for the DACA recipients – but one that basically forces them to start making decisions – to get Congress through the November election.  Both Democrats and Republicans could well end up deciding it’s better to have the issue to campaign on, than to have legislation that some of their constituents will hate, with their names on it.)

Meanwhile, on being interviewed by Mueller, I recommend not counting Trump out on this.  Everyone is certain he can’t control his outbursts, and would say something to set himself up in any interview (or, God forbid, grand jury testimony).

But I wonder myself if Trump is bypassing the gold medal and going for the super-platinum mountain-mounted plaque on this one.  Every treatment I see assumes that the outcome would be setting himself up for the perjury process-crime indictment anyone else might incur.  Half the treatments (from the right, of course) assume that the Mueller team would just misrepresent something Trump said, if necessary, to make that happen.  I neither assume that to be true, nor dismiss it as a possibility.

But more importantly, Trump isn’t anyone else.  He’s the president.  He’s not obliged to sit by and let a prosecutor manufacture a process crime — or anything else — from his statement, behind a closed door.  The president’s is the one case in which he himself can fight that by releasing every piece of information related to the charge.  Any matter Trump made public would be within his constitutional discretion to release.  Mueller can’t keep a door closed to do things behind, in the matter of the president’s testimony.

We’re not talking about the president shoplifting at Wal-Mart, or committing murder in the Lincoln Bedroom.  Those are straightforward matters of criminal law and law enforcement.  We’re talking about a special counsel possibly attempting to frame the president for a process crime, when no underlying crime is at issue.

If the president believes he is being mishandled by the special counsel, it is within his purview to lay the case open and refuse to submit to being mishandled.

In fact, if Trump believes the investigation itself is being mishandled, after he’s been interviewed – if he sees it going off the rails, or his testimony being misused – he can prevent Mueller from doing any of it behind closed doors, outside the scrutiny of Congress or the public.

If Congress wants to impeach him for that, it can knock itself out – but if the president is in the right, the stakes are the legitimacy of the special counsel paradigm itself.  If the president is right, the special counsel paradigm is broken, probably for the foreseeable future.

There would be a lot more to say about that in a separate post.  Suffice it to say here that the special prosecutor construct is not an emblem of constitutionality or the rule of law to begin with.  If we find the president breaking and entering, or embezzling funds, then he should face what any other defendant does, with the same rights and responsibilities.  But that’s not what we’re talking about with a special counsel investigation – and certainly not with this one, which is nominally about counterintelligence.  It was never about any underlying crime.

Counterintelligence, in fact, to an even greater degree than straightforward domestic law enforcement, falls within the president’s purview as a national security matter.  The president is uniquely situated to weigh in on how a special counsel probe is being conducted for counterintelligence purposes.

I’m not so sure Mueller wants to try the showdown he could create with Trump, by giving Trump a reason he doesn’t have now to shift from being a disinterested, hands-off observer to having an investment in how his own testimony is used.

There may be some question how much Trump might legitimately involve himself in Mueller’s pursuit of an obstruction issue.  But Mueller cannot hold the high card on any national security issue in the case’s conduct.

Mueller may look for breaches of national security, but he cannot define those breaches against what the president says they are.  No charter can confer that discretion on him.  The president has to explain himself to Congress on such matters, but a special counsel appointed by the president’s subordinate in DOJ is bound to abide by what the president says the definitions for national security are.  Any failure by the special counsel to do so would be grounds for his removal.

Bottom line, again: it wouldn’t surprise me for Mueller to decide, when he’s thought it through, that he doesn’t really need to interview Trump after all.  That may be a Pandora’s Box he doesn’t want to open.  If he does interview Trump, it’s in Mueller’s interest to stay on the straight and narrow in every way.

It’s possible that Trump and key members of his circle of advisers see all that right now, from where they sit.  I have to imagine Mueller is smart enough to see where it could ultimately go.  Maybe Mueller will want to try a fall with Trump on this.  Maybe he and his team will assume Trump is just a big fool who won’t know what hit him.

But why they’d think that at this point is beyond me.

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J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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