The Special Prosecutor Did Not Exonerate the President

In the hearings on the Mueller Report, some of the President’s supporters tried to describe “innocent until proven guilty” as meaning that the president is innocent of any crime and that the special prosecutor made that finding.

“Innocent until proven guilty” is a slogan with important purposes – we must not punish people who haven’t been found guilty. The presumption of innocence bars any form of punishment before a guilty verdict. We have to make sure that we don’t catch and punish the wrong people. But there is no negative implication here. “Innocent until proven guilty” doesn’t mean that someone who hasn’t been proven guilty is therefore actually and certifiably innocent. Even people who are held not guilty after criminal trials are sometimes found responsible in civil cases, where the penalty is money, not time in jail. “Innocent until proven guilty” is a presumption, not a conclusion about a person’s actual behavior.

In some cases, prosecutors do conclude that a defendant was innocent, but their judgment is not binding on anyone if something else turns up and changes the impact of the evidence.

In other cases, prosecutors conclude that they can’t convince a jury that a defendant is guilty beyond a reasonable doubt, sometimes called a moral certainty. If not, they can put the case aside, hoping or trying to get more evidence. They may still believe the defendant probably committed a crime, even though they understand there is still a reasonable doubt. They have evidence that points toward guilt, but it isn’t strong enough to convince a jury to imprison someone.

Or, and this seems to have been the case with Trump, they believe they might have sufficient information to convict, but they don’t have the authority to prosecute. The rule in the Justice Department against indicting a sitting president barred Mueller from proceeding.

But none of those possibilities imply a finding of innocence as a fact.

Special Counsel Robert Mueller tried to make it clear. There is no finding of innocence in the Report. Instead, the Report described evidence that points toward obstruction of justice, and concluded:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

It’s not clear who first said, “I must follow them; I am their leader.” That is clearly Nancy Pelosi’s position. To get too far out ahead of the public is dangerous. It could close minds rather than open them, increasing the danger for our country. Lawyers like myself, need to be very conscious of whether and when a jury will be receptive to a charge even though we have evidence. My own view is that Mr. Trump has committed impeachable offenses. But I also agree that the moment to pursue impeachment has not arrived because too much of the public and too many of their Senators are not yet ready to hear the charges, much less follow where the evidence leads. I’m hopeful that the ongoing hearings will help to prepare the public and the Senate. But it isn’t patriotic to go ahead blindly.

John Paul Stevens

I lot of us will miss Justice Stevens. As a judge on the Seventh Circuit Court of Appeals, based in Chicago, Stevens had a reputation as the sharpest mind on the Court. President Ford’s nomination of Stevens for the Supreme Court was widely hailed as an excellent appointment.

Stevens was always sensitive to the consequences of his decisions on those who had the least resources to deal with it. Dissenting in an antitrust case, Stevens wrote:

The transparent policy concern that drives the decision is the interest in protecting antitrust defendants–who in this case are some of the wealthiest corporations in our economy–from the burdens of pretrial discovery.[1]

As he gradually became beloved by liberals, he kept repeating that the Court had changed around him but he himself had not changed. One thing had changed. Stevens learned what was actually happening in the real world outside the Supreme Court building. He realized that the criminal justice system was not nearly as accurate as one would want when the question is whether to put someone to death, turning him from a supporter to an opponent of the death penalty.[2] He came to understand the role that affirmative action played in overcoming discrimination against people with black and brown skins. In a 1995 case about giving black contractors a leg up in government contracting, Stevens wrote: “The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat.”[3]

After his appointment he refused to discuss politics and followed neither party’s views consistently. In Bush v. Gore, he voted against the Court’s decision to stop the recount, the centuries old solution to disputed elections, writing that: 

the Florida court’s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.[4] 

But in a case from Indiana, he upheld identification requirements that, as Justice Souter detailed in dissent, clearly burdened the poor, the aged and the infirm.[5] Stevens later realized that the fear of fraud was made up, described it as “a fairly unfortunate decision,” and described Souter’s dissent as “one of his best opinions.”[6] 

In gerrymandering cases, Stevens became an advocate for “the symmetry standard, a measure social scientists use to assess partisan bias, which is undoubtedly ‘a reliable standard’ for measuring a ‘burden . . . on … representative rights’ ….”[7]

He was not perfect. I represented a group of political scientists as friends of the Court in a 1986 case. There was an issue that plaintiffs’ attorney and I both thought such transparent nonsense that we didn’t bother to brief it. Sure enough Stevens fell for it, though the majority of the Court went our way. It wasn’t Stevens’ last mistake but it proved he was human.

I’ve always felt that the term “Justice” in the title of members of the Supreme Court is a term that needs to be earned. During one argument in the Supreme Court, a woman lawyer kept referring to William Rehnquist, who was then the Chief, as Judge, and Rehnquist kept lambasting her for it. Stevens interrupted, “It’s all right counsellor; the Constitution makes the same mistake!” It does, indeed, in Art. III, sec. 1.

Stevens was not only smart. He was a judge; not a partisan. He cared about the effect of his decisions and showed a willingness to learn. Stevens clearly earned the term Justice.

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[1] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 596 (2007).

[2] Linda Greenhouse, Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99, https://www.nytimes.com/2019/07/16/us/john-paul-stevens-dead.html

[3] Adarand Constructors v. Pena, 515 U.S. 200, 244-45 (1995). He continued: “It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.”

[4] Bush v. Gore, 531 U.S. 1046, 1048 (2000) (Stevens, j., dissenting)

[5] Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 211-12 (2008) (Souter, J., dissenting).

[6] Robert Barnes, Stevens says Supreme Court decision on voter ID was correct, but maybe not right, Washington Post, May 15, 2016.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (Stevens, J, dissenting). Stevens continued, “The symmetry standard ‘requires that the electoral system treat similarly-situated parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage.’ This standard is widely accepted by scholars as providing a measure of partisan fairness in electoral systems.”

 

Trump’s attack on refugees

Just received a letter worth passing on, given that the US has made many of the world’s refugee problems worse: by our history of throttling democracy and supporting dictators in Central America who have ruined the lives of their people; by  our share in global warming that has destroyed the ability of many areas to support themselves; and by our resort to arms especially, recently, in the Middle East.

From: capital-district-coalition-against-islamophobia@googlegroups.com <capital-district-coalition-against-islamophobia

Please join me in doing everything/anything  you can to  fight against this latest effort to destroy our fundamental American values.    Yes, we have US Senators and Congressmen who will fight hard to ensure this does not happen, but I’m sure they would be grateful for a call of support from their constituents.

Please share with your networks.

Charles Schumer: E-mail:  https://www.schumer.senate.gov/Contact/email-chuck Albany Office:  (518) 431-4070 Wash. D.C. Office: (202) 224-6542

Kristen Gillibrand E-mail: https://www.gillibrand.senate.gov/contact/email-me Albany Office: (518) 431-0120 Wash. D.C. Office: (202) 224-4451

Paul Tonko E-mail: https://tonko.house.gov/forms/writeyourrep/?zip5=12202&zip4= Albany Office: (518) 465-0700 Wash. D.C. Office (202) 225-5076

Please share with your networks.

Thank You,

Dahlia Herring

Co-Chair, Capital Region Refugee Roundtable

From: Eskinder Negash, USCRI <uscri@uscridc.org>
Sent: Friday, July 19, 2019 1:05 PM
To: Dahlia <dmazengia@nycap.rr.com>
Subject: BREAKING: Refugees not welcome here?

BREAKING: Trump Administration Considers Slashing Refugee Admissions to Zero News just broke on Politico that the Administration is considering shutting down the U.S. Refugee Admissions Program.  According to the report, for the first time since the program was established in 1980, we would close our doors to refugees. Officials are proposing to allow ZERO refugees into the United States of America. This would amount to a functional shut down of this vital program for refugees and eliminate our historic role as a humanitarian leader in the world. This is a defining moment in our country’s history. How can we turn our back on the world’s most vulnerable people—refugees who cannot go home? How can we toss aside the fundamental values that built this country from the ground up? Right now there are thousands of refugees in the U.S. waiting for their family members to join them. Will we keep these families separated forever? Right now, TODAY, is the time to stand with USCRI and mount a robust opposition to this proposal. We are asking you to amplify our message to the Administration to change course and continue this time-tested humanitarian program. How can you help? Call your members of Congress today and let them know you support increasing, not decreasing, the number of refugees admitted to the U.S. Locate your members of Congress here. Speak out in support of refugees. Use your social media and other platforms to follow USCRI and let this Administration know you are one of the many Americans who welcome refugees into this country. Donate to USCRI and support our efforts on behalf of the world’s most vulnerable people. As a nonprofit organization, we can’t do it without you. Help us continue our work as advocates and allies for refugees and immigrants. Donate now at refugees.org. It is critical that we join together and make our voices heard. Eskinder Negash President and CEO P.S. USCRI’s official statement may be seen here.

 

What we can do to stop global warming

Global warming threatens what scientists are calling the sixth mass extinction. But we can just call it mass suicide. You can lend a hand to prevent the suicide of the human race. You can stop the murder of your children and grandchildren. There are steps we can take on our own, and steps we can take through the political system.

Collectively we can do a lot even on our own – not enough to finish the job but enough to get the ball rolling, not only by the direct effect of our actions but by changing the market so that products that cause our planet to warm are less profitable, products that are clean are more profitable, and companies discover they need to shift – quickly.

Web pages on how we can help stop global warming are on the websites of The Natural Resources Defense Council, now known by its acronym. NRDC,[i] The Union of Concerned Scientists,[ii] and Middlebury College,[iii] among many others. The web addresses are in the notes below and on the WAMC website.

The basic principle is to burn less carbon-based fuel.

Save on transportation by living in walking distance from jobs and stores; flying less, and choosing trains, hybrids and fully electric vehicles; keeping cars tuned, tires inflated, and air filters changed.

Save water to save the energy for pumping, heating, and treating the water. The WaterSense label is an EPA program for fixtures and appliances meeting EPA efficiency and performance standards. And of course, you can also turn off the tap and use less.

We can save electricity by choosing a utility that gets at least half its power from wind or solar – NRDC suggests using Green-e Energy for certification of power sources. We can also switch to LEDs for lighting if you haven’t already; and pull the plug on electric devices because many of them drain electricity even when not in use.

We can save energy by continuing to weatherize, insulate and seal homes and buildings to conserve heating and cooling; by claiming federal tax credits for many energy-efficient home improvements; and by using the energy star label to find efficient appliances.

Because it takes energy to produce the food we eat, waste less, and help push farming toward less energy-intensive methods and products by eating less meat (the most energy intensive food you can buy); and encourage farmers to use fewer fertilizers, more sustainable crop rotation and less tilling because it releases carbon.

To help reduce the damage, grow trees, don’t cut them – because they absorb and reduce the carbon in the atmosphere; favor companies that are allies in the fight against deforestation; and buy less of the major drivers of deforestation, beef, soy, palm oil, and wood products.

As citizens we can voice our concerns and welcome government efforts to address global warming. Government has three major tools:

• Regulation can stop unscrupulous business from taking shortcuts that compromise our health and safety, and help stop those unscrupulous businesses from driving out responsible ones.
• Targeted taxes discourage bad behavior: just as we pay fines for bad driving, all companies should pay a premium for putting carbon into the atmosphere.
• Government investment can encourage good behavior, by researching effective solutions, kickstarting green-friendly businesses, and providing information to manage the environment properly.

We need them all. So a major step is to vote for people who won’t just talk about but actually help us deal with the problem.

We all have power to make a difference for the environment we need to sustain life –through the market, the politics, and the collective impact of our private behavior.

[i] < https://www.nrdc.org/stories/how-you-can-stop-global-warming >.

[ii] < https://www.ucsusa.org/our-work/global-warming/solutions/global-warming-solutions-reduce-emissions >.

[iii] < https://sites.middlebury.edu/climatechange/2018/05/02/how-to-solve/-global-warming/ >.

Passing of Shamshad Ahmad

He will be missed by many and I certainly am one of the many who will miss him. I knew Shamshad as a lovely, sweet, gentle and yet very strong and effective man. I don’t remember exactly when we met but many years ago he invited me to speak at the Mosque and he often came to the Law School whenever there was a program that touched the interests or needs of the Islamic community. It was always a pleasure to see him. We have lost a fine man. Like so many others, I will treasure his memory.

Climate Change is Under Our Noses and Our Feet

While the Administration in Washington cuts staff at EPA,[1] it’s a good time to reassess efforts to save the climate that makes our life possible.

When we moved to Albany forty years ago people told us winters were hard here. Snow was heavy and stayed. Our yard had two feet of snow piled on it continuously for most of the winter. That hasn’t happened now for decades. Instead we get much more violent storms. I’ve had to console my secretary and others in the office when their towns were largely swept away. That wasn’t the pattern when we first came either. Global warming is right under our noses and our feet. And it’s already changing our lives.

It no longer makes sense to wait and see. People who’ve been studying this for decades are clearly right. The climate is changing, causing damage and will only get worse. Equally clear, we’re a major cause. Whatever else may contribute to the problem, we know the carbon humans produce, and the impact of carbon, methane and other greenhouse gasses, enough to identify the quantity of carbon in the atmosphere and the warming effects on the ground. All the measurement and data are just about confirmation and refinement so that we can model the speed.

Speed – it’s happening fast. The earth reinforces the trend. As the atmosphere warms, we lose glaciers that reflect heat back and we lose forests that absorb heat.

So what does it mean to deny the obvious? For powerful people who should know better, it means they’re lying and pursuing personal gain at everyone else’s expense. Conservatives, and their religious supporters, used to judge candidates by how they treat their families. That never made much sense to me – treating one’s family well can mean treating everyone else selfishly. Our children and grandchildren will be seriously affected by climate change. Maybe the rich and powerful figure they can provide a golf course for all their children and grandchildren. But as the world boils, they too will reap the whirlwind. It’s hard to believe their selfishness toward their own families.

I know I’ve described before my conversation with a very successful engineer whose home is only eight feet above sea level. But I want to drive home how interconnected we are in dealing with climate change. Everybody for himself doesn’t work. This engineer wouldn’t move to higher ground because the city wouldn’t function if the water rose that eight feet. The infrastructure would flood. The roads would be under water. They’d have to move again. Coming upstate where land and homes are hundreds of feet above sea level wouldn’t help. I’d seen the pain Irene and Sandy caused on high upstate ground so I knew that wouldn’t solve the problems of global warming, or from the violent the storms fed by a warming climate. But an eight foot sea rise would make coastal cities unusable, and the refugees from those floods would overwhelm the rest of us, overwhelm us the way Sutter’s Mill in California was overwhelmed after the discovery of gold was announced – Sutter never had a chance to protect his property.

In other words, we’re all in this together, and the best way to care for our own is to care for each other before it’s too late, to slow and stop the warming of the climate. We each have a role – voting for people who won’t just talk about but actually help us deal with the problem; and do our part in smaller ways, in our purchases and daily practices.

[1] https://blog.ucsusa.org/andrew-rosenberg/the-epa-cant-stop-polluters-when-the-trump-administration-cuts-enforcement-staff (Union of Concerned Scientists, September 13, 2018).

How to think about Iran

People simplify countries into good and bad, leading us to bluster about military options, and overlook better ways to get things done.

It seems required that all discussions of Iran begin with statements about lack of trust and the badness of what they are doing. But goodness and badness aren’t genes baked into each country’s DNA. Despite American complaints about Iranian government, Iran waited a year after this country reneged on the multi-national nuclear agreement before acting in conflict with its no-longer application terms. They were not, in this case, untrustworthy.

Much of the Iranian population is very westernized. Despite some of the leadership’s language, Iran is not a country of America haters, or nearly as authoritarian as much of the Middle East. Iranians have been voting for decades except when our country dislodged their democratically selected leader and substituted the Shah. Iranians don’t have as much power as they want but they have a great deal more than most of the people of the region. Until the current occupant of the White House took over, they pushed their leadership in our direction.

We’d benefit from thinking about the Middle East and Iran differently. Iraq and Iran fought a war that cost at least half a million lives, with two or three times that many casualties. American defeat of Iraq removed any Iraqi threat to Iran and made Iran more powerful, which many here regret.

But also, Israel and Iran were cooperating before the U.S.-Iraq wars. The enemy of my enemy is my friend and Iraq was their common enemy. So after we defeated Iraq, Iran and Israel saw each other as the most dangerous countries in the region, leaving Iran facing Israel and Saudi Arabia in the new Middle East.

Saudis aren’t angels. They’re decades behind Iran in their treatment of women and have caused us much more trouble. Saudi support for militant Wahhabi Islam brought 9/11 about, produced Osama bin Ladan, al Qaeda and led to the war in Afghanistan, and Saudi Wahhabi schools are radicalizing the Islamic world. Our alliance with Saudi Arabia has been very costly.

So assuming we suffer the pain and cost of defeating Iran, which countries would drive the new Middle East: Israel, Saudi Arabia or Turkey? The longstanding working relationships between Iran and Turkey have helped stabilize both. Turkey is now playing East and West against each other. It seeks entry into the EU while becoming increasingly authoritarian. If Iran were defeated, would Turkey draw closer to the west, to Sunni Islamic countries or would Turkey be more vulnerable to the Russian bear? The answer isn’t obvious. A defeated Iran would be in chaos, and the risks that could pose to all countries in the area as well as ourselves could be very severe. In other words, war is not an independent decision without understanding or controlling the aftermath.

Defeating Iran may only solidify our reputation as the world’s most warlike country. Plus, demonizing Iran is diverting us from China’s threat to the security of other countries in the Far East. If those countries lose confidence in American support, the world balance of power could change in an instant. How to make America puny again.