Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

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

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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Environmental Change and The Campaign Season

March 5, 2019

I’d like to start this campaign season by stating one of my primary objectives. Climate change is the rare major problem that has been warning us so that we could have had plenty of time to deal with it. Now in a film titled The Human Element, which is available on podcast, photographer James Balog shows global warming in time lapse photography.

But actually knowing what is going on seems to be a liability. Gore actually knew. He looked deeply into the issue of global warming and he understood. But the public reaction was horror – at Gore. He wasn’t like us. He knew stuff. In the first debate, Bush disposed of one of Gore’s points with a sneer, just calling it “fuzzy math.” I concluded on the spot that Bush was a bully. The American public apparently concluded that they couldn’t share a beer with someone who understood math. They judged sincerity as similarity – if he’s like us he’s sincere. So, if we didn’t study stuff, the president shouldn’t either. God. Try that for your choice of doctors. People got what they deserved except that they dumped it on the rest of us too.

Obama did know what he was talking about. Some of us loved him for it. Others were turned off because a Black man presumed to tell the rest of us what was going on – even if it was a loyal and dedicated Black man trying to save the rest of us from the hell we’re wandering into.

Hillary knew what she was talking about. She spent her life preparing for public office, not going to campaign methods and finance school but studying the public issues a president has to deal with for our sake. But her dedication to serving us, the people, was her apparent undoing. The guy or gal down the block doesn’t do that. So, she must be snooty because she knows stuff and proudly spent her life learning it for us. How bad is that?

Learned Hand, one of the great judges in our history wrote that elections are very hard to know enough about. I want presidents, senators, representatives and members of the Administration who have spent the time to know what they are talking about so that we don’t all fall off the cliff together, pulling our families off that cliff with us. This isn’t about my ego. It’s about survival.

Sincerity means to me that the candidate wants to take care of us, our health, our future, all of us.  Yes, experts disagree, and I spend some of my effort doing this commentary to distinguish between experts who have it right and those whose heads are screwed on backwards. But understanding issues is essential. Beyond what we can figure out ourselves, we have to be able to talk with experts who do understand. Lawyers have to do that all the time, from working with doctors to understand injuries to working with economists to understand how much money will have been lost. Expertise matters. Even to be able to talk with and explain the experts, one has to prepare. How better than by spending the time, energy and midnight oil to get things straight?

In this presidential campaign season, I want candidates who care enough to figure things out. Most important I want candidates who understand the urgency of dealing with climate change. And who build ways of dealing with the dislocations of capitalism by building their solutions onto the opportunities created by effective solutions to climate change.

— This commentary was broadcast on WAMC Northeast Report, March 5, 2019.


The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.


All Criticism of Trump Cannot be Fake News, and what his claim implies

August 10, 2018

I keep looking for things we can say to Trump’s supporters that just might wake them up. Here’s a very basic one.

President Trump has repeatedly told us that all criticism of him is fake news. That can’t be right. No one is infallible. No one. Because it can’t be right, his claim drives these conclusions:

First, we have to tell the difference between what the President says that is true and what the president says that is false. It cannot be either all true or all false.

Second, the claim is an attempt to pull the wool over our eyes. If we can’t look or see criticism, then we lose the ability to tell truth from fiction.

Third, just take a cold hard look at this without fear or favor one way or the other – blocking our view of criticism is the first technique of dictators. It insulates them from resistance. One of the first things Trump did in office was to look into pulling the license of the main broadcast news stations. That would have powerfully insulated him from criticism and scared many critics into silence.

Once that happens the consequence for the rest of us can be catastrophic. Dictators, including Vladimir Putin, Trump’s mentor, don’t look out for our welfare once they no longer have to. Silencing or discrediting all criticism of them as fake gives them the ability to take aim at everything you care about, everything that stands in their way, and to claim whatever they want – personal wealth, and the power to reward all those who will bow to their will. That is the dictator’s game: command enough power to silence all dissent and force everyone to do their bidding.

We’ve repeatedly kicked out politicians that disappointed us. The objective of all autocrats is to discredit democracy, a free press and honest elections, so there is little chance of their being kicked out. The men and women we’ve been calling the greatest generation gave their all to protect what America’s founders bequeathed us. Putin’s and Trump’s attacks on a free and critical press and their discounting any threat to honest elections undermine our commitment to democracy. The real answer to the flaws of democracy is the dedication of Americans, winners and losers, to democracy’s principles.

I’ve never met Trump and claim no way to know for sure what is in his heart. But as a lawyer, I know from professional experience, that the most convincing people you will ever meet are the con men. We can’t read their hearts. We have to gauge the risk from their actions and claims. Lambasting the press categorically, as if all the men and women, young and old, who are toiling to get the facts, can never get anything right, is a sure way to protect what should not be protected.

Let me end with a book pick. In The Plot to Destroy Democracy, Malcolm Nance looks at the facts with the cold, calculating eye of a man who has spent his life in American national intelligence. Based on Russian purposes, institutions and behavior, he concludes that the Russians are deliberately threatening our democratic system. Democracy threatens the impunity of autocratic rulers to kill, torture and steal from their own people in order to protect their own power and maximize their own wealth. Regardless of collusion, conspiracy or disloyalty, the combination of Russia’s and Trump’s attacks on the fundamentals of democracy clear the path for tragedy. And our crucial response will be what we do leading up to the elections and at the polls.

— This commentary was broadcast on WAMC Northeast Report, August 7, 2018.

 

 


Whitford v. Gill

June 19, 2018

Commentators have treated the Court’s decision in Whitford v. Gill, the Wisconsin gerrymandering case, as just a technical decision, a delay in getting a substantive decision out of the Court. They’re nuts and I’m furious.

Roberts, the current Chief Justice of the Supreme Court, is stalling for time. Time serves the Republicans in several ways: the most likely and immanent resignation is from Justice Kennedy who is the weak link in the conservative justices’ opposition to doing anything about gerrymandering; the oldest member of the Court is Justice Ginsburg and she is reliable in demanding equal protection in voting arrangements; replacing either of those justices while Trump is president would give Republicans a solid 5-vote majority in all elections cases and just about everything else. It would lock in the Republican majority. Roberts is trying as hard as he can to lock in Republican victories at all foreseeable elections, after famously telling the Senate at his confirmation hearings that he was merely an umpire calling balls and strikes. Umpires like that should be fired.

He also unleashed another ploy that people did not understand. By insisting that standing – a technical term for the right to sue – has to be asserted by plaintiffs based on their specific districts rather than statewide to challenge inequality in voting arrangements, he actually tried to shred plaintiffs’ proof. The best explanations of what gerrymandering is follow what the people who draw the lines actually do – they try for the best and most reliable statewide partisan vote for their party. But Roberts says that’s not justiciable. He wants proof for each district in which the voters votes are wasted and their voting power is diluted. But the basis of the dilution claim is precisely the equal protection comparison with all the other districts. If that is out of bounds, plaintiffs are entitled to take a walk to the outhouse.

But, a lawyer writing friendly-seeming language so that people will not understand how badly they are being affixed by a threaded metal fastener to the wall of defeat, Roberts makes it sound like they can just sharpen their presentation and then all will be just fine. Roberts should be impeached as unworthy of the robes of justice.

I’d go further. Many scholars have argued quite convincingly that over its two-and-a-quarter centuries, the U.S. Supreme Court has done much more harm than good. Some of us nearing the end of our careers happened to start practice at a time when we did have a people’s Court, a court that believed in equality and ended segregation, a court that believed in democracy and ended malapportionment, a court that believed in accurate fact-finding and tried to end abuses in the system of so-called criminal justice. But that Court has gradually slipped out of reach until the present Court has become an apologist for the abuses of the rich and the powerful, giving corporations the power to shred the rights of employees, customers, neighbors and political opponents.

So I think it’s time for some constitutional amendments that would really make a difference

  • End the electoral college in favor of voting for president by popular vote, ending the reign of minority presidents like Trump – unless the courts still manage to protect underworld control of elections
  • End the treatment of corporations as legal persons and let them face the regulatory ax
  • End gerrymandering and put an end to control by judicial partisans who shred the meaning of both equality and democracy
  • And, my favorite, an amendment to delete Article III and abolish the so-called Supreme Court – I’d like to see Roberts homeless, without a job, a robe or any of the respect due a decent person.

  This commentary was broadcast on WAMC Northeast Report, June 19, 2018.

 

 


Are We Overplaying Our Hand?

May 29, 2018

I’ve tried to state these comments not in all or nothing terms but in more realistic degrees. My question is what happens to the extent that a country overplays its hand?

That the U.S. pulled out from the nuclear agreement with Iran, China, France, Russia, the United Kingdom, Germany and the United Nations Security Council means, first, that the U.S. will surrender some commerce and trade to Iran’s other trading partners and that some of the others will move to fill some of the gap. If the U.S. tries to assert secondary sanctions against companies based abroad that trade with Iran, that will certainly offend others of our trading partners, including the E.U. and its members. They are likely to conclude that they cannot allow the U.S. to determine their trading practices and rules. If so, they can look elsewhere. Some companies can decide that trade with the U.S. is unpredictable and decide to scale it back. In other words, one consequence of the pull out can be that the U.S. becomes a smaller, less attractive country to trade with and a less powerful international voice. We may want to isolate Iran but we might increase our own isolation instead.

I objected to the arbitration provisions of the Trans-Pacific Partnership because it gave too much power to corporations to free themselves from labor and environmental regulation – grounds of little interest to the Trump Administration. But when the U.S. pulled out of the Trans-Pacific Partnership, China stepped up to fill the vacuum. That’s a real cost that could have benefitted from continuing diplomacy rather than precipitate withdrawal. Insisting on having our own way can leave us celebrating our purity of principle but also isolated and irrelevant. And to the extent other countries can’t trust American politics and reach agreements with the U.S., America’s power and influence shrink.

Democracy generally depends on compromise. When people refuse to compromise, they lose the ability to reach a policy that the country can pursue successfully. We pursued a policy of containing communist countries for more than 50 years and it succeeded because the two parties preferred to work together than make a political issue out of that strategy. Republicans like to credit Reagan, but it was initiated under Truman, in line with the recommendations of George Kennan, and followed by Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan and Bush – presidents from both parties. These men were too wise and honorable to follow or reject policies because someone else started it. The ability to reach a consensus across party lines meant that it was stronger than party and America was strengthened as a result.

Some people who portray themselves as patriots want the U.S. to act independently of what other countries and international organizations want. But it’s questionable whether that’s actually patriotic because ignoring real world constraints runs us up against walls of resistance and sacrifices too much. The U.S. has about 1/23 of the world’s population. Running the other 22/23rds by sanctions, threats and intimidation is a heavy lift, likely to backfire. Wisdom comes harder. But it is important.

  • This commentary was broadcast on WAMC Northeast Report, May 22, 2018.

The Central Issue of Trump

March 20, 2018

Trump says and does so many things which are parts of much bigger issues, that it’s nearly impossible to keep up.

  • He has us discussing whether he’s going to fire one guy or the other, who does or doesn’t deserve to go;
  • Whether Trump will make war or peace and what country deserves our friendship or enmity;
  • Whether we will honor or dishonor treaties that he claims other countries violate, though no one else shares that view;
  • Whether he has a policy about infrastructure based on his saying things should be built or does not have a policy based on the empty line in his budget;
  • Whether he has conspired with an enemy of the United States, and whether the Special Counsel’s investigation should be shut down because he tells us that he did nothing that should be investigated, and whether it matters that he didn’t give Hillary that privilege.

It makes the head spin.

We’re heading in just a few years to an economy in which most of us won’t have steady jobs, pensions or unions to support us. Instead it’s everyone for himself all the time in the gig economy. Republicans insist that government and regulation are almost always bad. Who’s left to have our interests at heart? Reminds me of pastor Martin Niemöller on being sent to the concentration camps by the Nazis, “Then they came for me—and there was no one left to speak for me.” Is Trump for or against the workers when he says nothing about union rights and supports no change in working conditions other than tariffs for a couple of industries. And is Trump for or against a livable environment when he takes every possible action to degrade the earth, air and water?

We have been at war since 2003 but what do we have to show for it but body bags and amputees. Will Trump send more troops to die in the Middle East, or is he just bluffing to make people back down? But attempted bluffing will be ignored by people across the globe who have all lost confidence in what he tells us because we need only wait a short while for him to say the opposite.

Trump wants the Special Prosecutor, Robert Mueller, to stop investigating whether Trump or his campaign collaborated with the Russians in order to win the White House, or wants to fire Mueller and hire someone else who will close the investigation? Does it matter whether criminal defense lawyers may want their accused clients to have a right to choose their prosecutors and put a time limit on investigations, especially for such difficult prosecutions as those of organized crime, corporate finagling and international financial transactions. Can they cite the president for that right?

It’s enough to make one’s head spin. But there’s a way to simplify it. Forget all the separate issues until we have a president that actually cares about them, and focus on impeachment. Every one of those issues bears on impeachment, either because they relate to obstruction of justice, selling America out, self-dealing in foreign affairs or rewarding his favorite autocrats and wealthy friends at the expense of the people he swore to protect. His high crimes and misdemeanors easily exceed what Clinton was impeached over, threaten more damage to the republic than the misbehavior for which Andrew Johnson was impeached, and for which Richard Nixon resigned before the House could vote on articles of impeachment. Bring all these issues back to the fundamental question of impeachment. Dirty Donald, lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 20, 2018.


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