Impeachable Offenses – Disloyalty and Denial

December 10, 2019

Arguments about what should be in articles of impeachment divert our attention from the main point. Donald’s phone call with the new president of Ukraine should have made clear to all of us that the president is disloyal to America, willing to sell our security for a foreign leader’s press conference to make Donald look like a wizard instead of a duck. If we can’t trust the patriotism of the president, we can’t trust him to get anything right – except by accident.

His defense? Republican members of the Judiciary committee brought Professor Jonathan Turley to the stand to criticize Democrats for rushing when there are a lot of other witnesses with knowledge of Trump’s misbehavior. If there is anything favorable to Mr. Trump in what they would say, it has always been in his power to have them say it – it was Donald who told them to shut up, Donald who told them to stiff the subpoenas, Donald who threatened anyone who showed up to testify. It is perfectly appropriate for us to conclude that whatever they would say would make it even worse for Donald. Republicans are asking us to buy a completely irrational argument – that witnesses that Donald prevents from appearing would testify in his favor. Only if the Democrats were preventing witnesses favorable to Donald from testifying would their behavior be unfair. Instead, the Republicans are insisting that the Democrats are unfair because they refuse to fall into that trap. That’s Republican clap-trap and no American with their wits about them would fall for such nonsense.

Trump’s denial of science won’t make it into articles of impeachment, but is one of the most important reasons to get rid of him. Scientists test – will this work? What will happen if we do this or that? They can’t promise us a conclusion. Just the facts; sometimes good news and sometimes not. Trump just picks the conclusions he likes.

Mama didn’t get to choose her diagnosis. If she could have, she would certainly have preferred the family physician who told her that lump on her breast was arthritis. But I have lived with the belief that had he gotten the science right, had he told us the bad news, she might have lived to meet her daughter-in-law and her grandchildren and they her. And oh the joys they’d all have shared.

Remember Trump’s claim that he could get away with murder on 5th Avenue. The environmental damage Trump is doing to favor the short term profits of his rich friends will drive millions of people out of their homes if they’re lucky, or kill, starve or suffocate them if they’re not, dwarfing the death toll in Hitler’s concentration camps, and we will all be his victims – the working men and women, laborers, middle class – all the people Trump has fraudulently claimed to help. Mass murder is the highest of crimes and the strongest of reasons to impeach a president.

People on other continents have been converted from poachers to defenders of our natural patrimony with well-targeted incentives. But it won’t be done by an Administration that stimulates violence, encourages global warming and seeks to rid the world of everyone but his storm troopers.

Doctors would properly be stripped of their licenses. Presidential malpractice in the face of impending calamity should cost him his office.

The president is disloyal. He is arranging the death of innocent men, women and children on 5th Avenue and everywhere else. His congressional supporters have lost their minds and want us to throw ours into the trash heap with theirs.

We’ve got to clean up the White House and the environment with the method that Mary Martin made famous in South Pacific – we’ve got to wash those men right out of our hair – and every place else!

— This commentary was broadcast on WAMC Northeast Report, December 10. 2019.

 

 


Zuckerberg, Facebook and the Responsibility of Publishers

December 3, 2019

This post is about law and social media.

Zuckerberg has not been willing to take responsibility for the lies distributed on Facebook. And by now everybody but Donald is aware that social media are the major repositories of fake news. And that’s not an accident.

Broadcasting stations, newpapers and other publishers must carefully avoid publishing libel and defamation on their media. That requires them to make real effort to prevent publication of scurrilous material.

Until the 90s, those rules arguably applied to the internet. But then communications law removed publisher liability entirely for “interactive computer service[s]”:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

As Dan Solove comments, courts interpreted the statute:

to immunize any ISP [internet service provider] or website for comments made by their users – even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

Some of the results have been outrageous. The statute removed liability even when internet providers knew stories were false. In one infamous case, an anonymous source posted messages falsely linking a small businessman to the Oklahoma City bombing. A crushing barrage of angry callers made it impossible for him to do business.  AOL removed the posts when notified, but variations were reposted immediately and the victim couldn’t get AOL to block them, post retractions or even act more quickly. The courts sided with AOL. And Congress moved in only to protect copyright owners.

In this wild west of unsubstantiated internet allegations, who’s responsible? It’s generally worth suing only corporate defendants who can pay for the damage, which usually means the ISP.  And immunizing fraud on social media makes it harder to hold other media responsible. Once a story is “out there,” other news organizations are stuck. Without a good way to hold companies responsible for checking facts, gossip, lying and fake news dominate the industry.

Recent hearings made clear that Americans find it outrageous that Zuckerberg and his company have no responsibility for the garbage they “share”. It’s time to change. There is no reason for giving huge internet companies, vastly wealthier than print media, advantages that print doesn’t share. But Facebook won’t accept responsibility for most of the lies it distributes.

Radio and television stations, newspapers and other publishers are legally responsible. The very famous case of New York Times v. Sullivan came to the Supreme Court because the Times published an ad taken out by leaders of the Civil Rights Movement that had some inaccuracies. Those who placed the ad in the Times and the Times itself shared liability to anyone injured. The law at the time violated the First Amendment in other ways, which the Supreme Court corrected in that and subsequent cases. But if constitutional requirements were satisfied, publishers were and are responsible.

The deeper meaning, however, is that this problem illustrates that there is no such thing as purely private action. Law always either allows, forbids, or empowers some people over others. One cannot get to the bottom of our economic or social problems without looking at the interplay between public and private decisions, no matter what free market ideologues try to tell you.

— This commentary was broadcast on WAMC Northeast Report on December 3, 2019.


Impeachment Issues – Stiffing the Subpoenas and the Charges

November 26, 2019

The White House orders members of the govenment not to testify and refuses to produce documents requested by House committees. It stonewalls subpoenas or turns to the courts, which could delay proceedings well past the 2020 elections. Is the possibility of impeachment stymied?

Some of us can remember when Republicans commonly charged people with being “Fifth Amendment Communists.” The obvious point was that their reason for invoking the Fifth Amendment was to hide their connection to the Communists. Otherwise, why not answer?

Actually, even for innocent people it was often safest not to answer because investigators often drew outrageous inferences. The U.S. Supreme Court, for example, lambasted one agency for assuming that a person who wore overalls was a Communist.

But sometimes we’re entitled to answers. In lawsuits, federal courts can order disclosure unless it’s unfair or improper.[1] They must consider “the parties’ relative access to relevant information.”[2] But if people refuse to answer once orders are issued, courts can “direct[] that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.”[3] Similarly, when Trump’s people refuse to testify, Congress could take facts “as established for purposes of” impeachment.

The harm under investigation here is considerable and effective remedies for disclosure are appropriate. The seriousness of the issues makes refusal to testify egregious and justifies effective remedies for failure to testify or turn over documents. The President’s dealings with Russia and Ukraine were extremely dangerous to the extent that they reveal that American foreign policy is up for sale. If Mr. Trump is or suspects he’s president because of what Russia did for him, or that he might remain president because of what Russia or Ukraine might do for him, there is at least the temptation to distort American foreign policy to get their help, weakening America and making us more vulnerable to our enemies. That’s a big constitutional no-no, embodied in all the language of the impeachment and emoluments clauses.[4]

His defenders insist that there is no evidence of an explicit quid pro quo. That’s not a satisfactory defense. People in high places are rarely stupid enough to make exchanges explicit – “I will do this if you will do that.” Seeking favors is an impeachable “high crime” because they create temptations and because the participants often understand and expect there will be a quid pro quo, though Trump’s judicial appointees may not get the point.[5] For the same reason, the emoluments clause says zero about quid pro quos – just taking a benefit from a foreign power violates that clause. It prohibits “accept[ing] any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State.” The crime under the emoluments clause is merely to “accept” the benefit.[6]

My high school sent me to a citywide competition about the meaning of brotherhood. One of the judges was the great news anchor, Walter Cronkite. One was the famous Manhattan District Attorney, Frank S. Hogan. And the third was the Manhattan Borough President, Hulan Jack. Shortly thereafter, Hogan convicted Jack for accepting a gift. Jack did some things I admired, but Jack accepted the gift knowing the donor wanted to do business with the City. Statutes prohibit accepting such gifts, whether or not there’s an explicit deal because the temptations are obvious. It’s well understood that illicit business is done with a wink and a nod. “Take this” is enough where other arrangements are pending.

In this case, Trump has admitted asking for a favor that he had no right to accept, a favor barred by more than one clause in the Constitution. The fact that he didn’t get what he asked for is irrelevant. His behavior was as corrupt as it was for the Manhattan Borough President. That’s enough. And the consequences of Mr. Trump’s behavior are much more serious.

  • This commentary was broadcast on WAMC Northeast Report, Tuesday, Nov. 26, 2019

[1] F.R.C.P. 26(c)(1).

[2] F.R.C.P. 26(b)(1).

[3] F.R.C.P. 37(B)(2)(A).

[4] See also “Impeachment for Corruption,” my commentary for April 10, 2018, and “Is America For Sale?” my commentary for June 20, 2017.

[5] McDonnell v. United States, 136 S. Ct. 2355 (2016) (although governor accepted loans and gifts, introducing donor to officials did not violate honest services law); McCutcheon v. FEC, 572 U.S. 185 (2014) (aggregate statutory limit on political donations did little to prevent quid pro quos); Skilling v. United States, 561 U.S. 358 (2010) (honest services doctrine limited to bribery or kickbacks, not including scheme to deceive).

[6] Art. I, §9, ¶8.


Time to Fight Fire With Fire

November 19, 2019

We’re in the middle of a campaign about whether Democrats should nominate a centrist and reject people like Elizabeth Warren and Bernie Sanders, who understand who and what is hurting most people in America – citizens, middle class and struggling, guests, refugees, union members, farmers, and consumers – most of us. Elizabeth and Bernie are the reasonable ones while most others avert their eyes or hold their noses. Three cheers for reasonable, straight talking, clear-eyed candidates.

What should Congress do? Compromise isn’t possible. Republicans can’t even accept surrender if Democrats’ names are on it. Negotiation isn’t possible no matter how much Republicans blame their own intransigence on the Democrats.

Congressional Democrats need to take a page out of the Republican playbook to copy Gingrich, fight fire with fire and refuse to pass essential legislation, including the budget, unless it has everything Democrats stand for and need for the welfare of all of us. I’d insist on language that eliminates any and all judicial seats from the moment the holder dies or leaves – no more appointments for Trump no matter when the election, no more judges who refuse to deal with the unconscionable ways that corporations eviscerate the lives of honest, hard-working people. Unconscionable, by the way, is a legal term that judges refuse to use when ordinary people are being shafted.

What will it do in the presidential campaign? Energize the party. It’s time Democrats stopped gagging themselves to stay closer to the middle, allowing the so-called “middle of the road” to drift further to the wrong, further away from what reasonable, real people need.

We need to stand up for each other, for our friends and our neighbors, for people who care for America, who actually believe in the Declaration of Independence and in the ideology of America, not the weakened and destroyed America that Republicans at the racist, billionaire and Tea Party tables happily let crumble. It’s time to show we really care about the harm that Trump and his lackeys are doing and stop it. No compromise with hatred, racism and the corruption of a selfish official with an ego so weak that he can’t stand truth and resorts to calling everyone else fakers, from scientists to journalists.

Tax cuts for the wealthy are obscene – their tax rates are already a fraction of what they were in America’s most productive times. So-called entrepreneurs don’t stand on each other’s shoulders – they stand on the shoulders of a government that created or financed the most important advances of modern life, from medical discoveries to the internet and the GPS system before making it available to private firms. No, we cannot have a decent or fair country if wealthy egotists can’t stand the idea of paying for decent public education. Yes, we can provide health care for everyone like most of the free world. Yes, we can rebuild our country’s infrastructure before it crumbles and takes America down. No need to worry about the billionaires and their crocodile tears about misnamed “entrepreneurs” who don’t need the rest of us to take care of them and don’t use their tax breaks to create jobs.

It’s time to stand on principle. And let’s be clear – principle is attractive and inspiring. We can help everyone from farmers and miners to doctors, teachers, nurses, truckdrivers and food service workers. It’s time for all of us to stand up for each other and show the selfish rich and their enablers what decency and principle really look like, while we show them the door out of Washington and the state capitals and send them to places where they can live the lives of refugees.


Disloyalty if not Treason

November 12, 2019

The U.S. was the world’s most powerful country when Trump took office. Though we couldn’t control everything, we influenced outcomes all over the world. Then Trump pulled us out of the Trans-Pacific Partnership, leaving China the dominant player in the Pacific. He withdrew from the multi-power nuclear agreement with Iran, leaving Iran to reorganize its nuclear ambitions to meet its new security situation. Bizarrely he keeps claiming Iran must abide by the agreement even as the founders of our country would have explained to him that breach by one party to an agreement terminates the other’s obligations to it. He withdrew from the Paris climate agreement, not only undermining the international effort to limit global warming, but undermining other countries’ willingness to count on American promises. And he withdrew from the Intermediate-Range Nuclear Forces Treaty with Russia, inviting Russia to restart the nuclear arms race.

He publicly questioned the value of the two major institutions formed to keep the Russians in check – the European Union which strengthened and unified Europe as a counterforce to Russia, and NATO, the military alliance between the U.S. and the European countries outside the Russian orbit, famously dubbed the “Iron Curtain” by Winston Churchill. He urged letting Russia back into the economic organization of major economies despite having been kicked out because of the Russian invasion of Crimea. He pushes Putin’s proposal that Ukraine virtually give Russia back its eastern provinces, the ones Russia had invaded until the West pushed back. And he has just invited the Russians back into Syria and a major role in the Middle East. In reality, Trump is being impeached because he keeps helping Russia.

I know there are people who call themselves super patriots who believe the US would be better off able to make its own independent decisions. What that means, of course, is that we will no longer have the trust and confidence of other countries who will no longer see us as reliable allies. When we do our best to isolate Iran, we think of it as a punishment, but when we do it to ourselves, it’s supposed to be a great advantage.

Yes, we think of ourselves as a superpower, but how much of the world can we take on alone? We didn’t win World War II alone. We certainly had the major role in the Pacific but those of us who lived through or studied the War, know that Russia did most of the fighting in Europe. So there is a large cost to isolating ourselves and convincing our allies that they can’t rely on us. If they can’t rely on us, then they can’t be reliable for us. They have to seek their own advantage.

In sum, Trump has enormously weakened America. It’s bad enough if he did it out of stupidity. But it’s disloyal if he did it for his own advantage. And since Russia can clearly be described as an enemy of the US, even though we’re not now making war against each other, we would be justified in calling that treason.

Let me suggest that you read and think about Art. III, sec. 3, of the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Whether or not it fits the definition of treason, weakening America for the advantage of Russia and China is certainly disloyal. As Hamilton explained in The Federalist, the basis for impeachment is “the abuse or violation of some public trust.”[1] No abuse of public trust can be more serious than disloyalty to America for the benefit of a foreign power.

  • Broadcast on WAMC/Northeast Public Radio on Nov. 12, 2019

[1] Alexander Hamilton, James Madison and John Jay, The Federalist, No. 65 (Hamilton) at 396 (Clinton Rossiter ed., New American Library 1961); and see Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 chronicling the development of impeachment from English precedents through the Founding Era in America (Yale U. Press 1984).

 


Heaven in Hawaii

November 11, 2019

We were out of town most of last month and the trip back took three separate flights, all the hassle of traveling by plane, and more than 24 hours from leaving my wife’s cousin to walking into our front door. We’re still recovering from the time difference, the lack of sleep and the heat wave in heaven.

Yes, I’ve been to heaven and back and made interesting discoveries. First, some locals call it HaVaii – no W in the sound. In heaven, there are people from all over the world, down under and up top, east and west, all the continents and colors, many of whom speak six languages and everybody smiles. Yes it’s possible to pull a muscle even in heaven but when I fell two men rushed to help me – one had ancestors in Africa, the other in Europe – and both were lovely, wonderful men, determined to get me back on my feet.

Strange things happen in heaven. Mark Twain thought it very strange that human beings assume that everyone will play the harp in heaven though most wouldn’t be caught near one on earth. Perhaps equally strange, my wife got me into the ocean. I hadn’t done that in decades since our children were small. I had good memories of the Atlantic near West Palm but I forgot about the surf in Jones Beach and it played with me like I was a toy. When my wife tried to help me, it knocked us both down.  One more thing an aging reader and sitter like me has to relearn – how to face the ocean, stare it down and charge.

Life is so different in Hawaii from the constant patter from Washington about race, color, ancestry and who the heck is better than everybody else. Hawaii is proof that life can be lovely. Except that so many people, and worse, builders and hotel magnates, have made that discovery that they have changed the climate. One of our taxi drivers told us how lovely the climate was on the hill behind Honolulu. And my wife remembered it from a trip half a century ago – though we were clearly a couple by then we came home from Iran at different times and by different routes so I missed seeing Hawaii before there were clouds in heaven.

A photo of my wife was taken in D.C. with a frame that said “citizen of the world.” That is what peace means – that we are citizens of the world and recognize the same in others, treating others, all others, like we ourselves would like to be treated, the Golden Rule, or loving our neighbors as ourselves, another biblical formulation.

I’ve had that pleasure before – on the mall in Washington the day Martin Luther King told us about his dream, or in the offices of the NAACP or the legal services program, in the company of many of this area’s great folk singers, former Peace Corps Volunteers, or sometimes just on the streets of New York where people have learned to live and love together, and among other dear family, friends, colleagues and neighbors – I’ve been lucky enough to live and work largely in supportive environments. It’s a wonderful feeling, to see the love without having to watch your back. It spells peace in many languages, and heaven too.

Even heaven isn’t perfect. There are justified complaints about the way those with native Hawaiian ancestry have been dispossessed of some of what should be theirs but it’s still a joy to see the way people live and work together. On the way out, I had a chance to interview two African-American women who’ve been working there, one a military officer, and they confirmed the rewarding pleasures of living and working with people there.

There’s so much more to enjoy in the islands than beaches and breezes, luaus and leis. You’ll find great examples there of the spirit that made America great.

  • This commentary was broadcast on Nov. 5, 2019, on WAMC/Northeast Public Radio

Sa’adi’s Iranian Poetry and International Order

October 29, 2019

This could be called a tale of two birthdays. While celebrating my wife’s birthday at a restaurant, she got an email in response to her request that the writer handle some things at an upcoming national conference.

Early American presidents ended their letters by declaring themselves “Your most humble and obedient servant.” They believed in humility and public service. Persians express humility differently. Like my wife and myself, the writer of the email she opened had been a Peace Corps Volunteer in Iran. His note reflected Iranian hyperbole and the Persian system of manners which they call Ta’arof: “I am your sacrifice,” he wrote, “you may walk on my eyes.” That was not a complaint, but, in context, much like Jefferson’s expression of humility and willingness.  The Persian reference to injuring eyes preserves painful memories, like many nursery rhymes we sing unsuspectingly. The Persian reference is to Mongol rulers, descendants of Genghis Khan, who cut out their opponents’ eyes. Knowing it’s meaning, I’ve never been able to use that expression. But both his and Jefferson’s reflect a culturally rooted sense of civility.

My dad visited me while I was in the Peace Corps and I threw him a party for his 70th birthday. While there, he gave me a book of Persian poetry as a gift, the Gulestan or Rose Garden, by Sa’adi, a much loved thirteenth century Persian poet, and the pride of the city where I worked as a Peace Corps Volunteer. Poetry is very important to the Persians. There were monuments in Shiraz to Sa’adi and Hafez who wrote just a few years after Sa’adi died. Two centuries earlier, Ferdowsi wrote his Shahnameh or Book of Kings, a beautifully poetic attempt to remember the pre-Islamic past of Iran.

This Administration, and some of its predecessors, have tried to force Iran into submission with painful restrictions on trade. This and other countries have also tried to isolate Iran among dangerous regional regimes that have threatened Iran in the past, most notably Russia and the Soviet Union.

The Peace Corps Iran Association, of which my wife is president, was invited to make a presentation at the Kennedy Center. As part of that presentation, John Limbert, himself both a former ambassador and hostage, responded to the policy of penalizing and isolating Iran with a reference to the poetry of Sa’adi.[1] Many Persians know Sa’adi’s poetry by heart. In fact, when I called a friend to ask him about the language Ambassador Limbert had recited, I heard my friend’s father start reciting the entire poem in the background.  Here is the couplet Limbert recited – in both Persian and English translation:

نمیبینی که چون گربه عاجز شور

به چنگال در آرد چشم پلنگ

Nemibini ke chun gorbeh ‘aajez shavad,

be changaal dar avarad, cheshm-e-palang?

Have you not seen the cornered cat,

whose tiny claws will tear out the eyes of a leopard?

The implication is that they don’t want to fight but can and will to save their country.

It is a mistake to think of Iran in stereotypical terms as a bunch of brutes. Like all peoples, they can overreact, especially during a revolution, and international politics often brings out the worst instincts of nations. Nevertheless, I experienced Iranians as a very decent, cultured and friendly people, but a people who love their country and expect to be treated with respect. It’s funny, but showing respect is, at once, one of the easiest and most difficult things to do. Often, it’s little more than the language that reflects each other’s humanity and accomplishments. But it’s so difficult when we fight about who’s number 1.

[1] The Gulistan or Rose Garden of Sa’di , 85-86 (George Allen & Unwin, ltd. Edward Rehatsek, trans., W.G. Archer, ed. 1964) (in the eighth story in the first chapter).


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