Trump’s Final Days

December 29, 2020

There’s been much news about whether Trump would use force or declare martial law to stay in office. Trump bumped that off the news by declaring he wouldn’t sign the stimulus and relief bill, then signing it after widespread criticism. Perhaps he’s abandoned using force to stay in office. But he’s taken many steps to set up the possibility. Ignoring the Senate confirmation process and civil service protections, he put his most reckless and irresponsible supporters in acting positions. He tested which federal forces would and which would not respond to his commands to take over parts of America, in defiance of state and local officials. Typically, Trump sends ambiguous messages to his [quote] “Second Amendment supporters” and others, to get them thinking about how they can keep Trump in power. If they create enough chaos, he’s ready to take advantage. If not, he’ll claim he was trying to keep the peace.

There are signs that Trump’s armed mobs are revving up. In my last book, I brought together reporting and studies about the threat of domestic terrorism, but so far America hasn’t grappled with the problem. There’ve long been warnings. People from areas with many armed right-wingers have been telling those willing to listen about the threats, intimidation and violence unleashed on surrounding communities. The threat has only been getting worse. As Time Magazine summarized:

white nationalists have become the face of terrorism in America. Since 9/11, white supremacists and other far-right extremists have been responsible for almost three times as many attacks on U.S. soil as Islamic terrorists ….

They’ve been talking for decades about using their guns to defend against what they label federal tyranny – which means making war on the United States. Unlike legitimate gun owners who keep their guns for sport or to defend their homes, they’ve threatened, shot at or killed members of Congress, federal judges, poll workers, park rangers, demonstrators, and blew up the Oklahoma City federal building, injuring hundreds and slaughtering the children in its day care center. Donald Trump read Hitler closely, and knows that Hitler was brought to power by his unofficial armies of thugs, called “Brown Shirts.”

Whether Trump, or his supporters, have abandoned the idea, we need to think of this as a risk, not a certainty. But if Trump resorts to violence, the Army can stand up to its Commander-in-Chief by refusing to obey illegal orders, while governors, police and the National Guard will be charged to defend America. No doubt some are sympathetic to the white nationalists; others, one hopes most, are disgusted by the effort to overthrow the Constitution of the United States, to violate the oath they, most of us, have taken to defend this country.

The third section of the Fourteenth Amendment barred anyone who’d taken an oath to support the Constitution and then “engaged in insurrection or rebellion against” this country from holding any office under the United States, or any State. Rebels were traitors.

We must let any potential traitors know that this generation of Americans has no room for insurrection, for people who put their racial hatreds above loyalty to country. There is no right to commit treason, to try to overthrow the constitutional government of the United States by force and violence. Those are crimes against all of us.

The Civil War is over; the so-called “lost cause” should stay lost, so that government of, by and for all the people, not just armed and dangerous people, shall survive.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on January 5, 2021.


For the Left Wing of the Party

October 19, 2020

Did you feel safer in the Biden-Trump debate with Joe, who spoke like a caring uncle, or Donald with the demeanor of a raging bull? We know enough about Trump’s admiration for Hitler, his bringing extremists into Republican politics, to realize that his coy remarks  about what his supporters could do with their “Second Amendment rights,” his calls to “Liberate Michigan”, “Liberate Minnesota,” “Liberate Virginia,” and to “go into the polls and watch very carefully” while intended to protect deniability, were in fact aimed at the extremists among his supporters, the Klan, Proud Boys, Nazis, white supremacists, and gun toting extremists, inviting them to keep Black and Brown people and others likely to vote Democratic away from the polls or at least prevent their votes from counting. That world’s not safe for any of us.

Defeating the bully in the White House isn’t all people like me want from elections. We want environmental action, action to bring police and prosecutors under control, nominations to bring the courts back to the side of justice for all. We want tax policy that doesn’t make you and I pay more taxes than billionaires like Donald Trump (who claims to be a billionaire) or Warren Buffet. Buffet had the grace to object.

Joe won’t get me all I want – no one could. I’ve been working for equal rights since I graduated from law school, walked into the office of the NAACP in New York City and worked as a full-time, unpaid volunteer on their legal staff. Joe wasn’t my candidate in the primaries but the American people weren’t ready for her, which means we have work to do. That’s about building support within the party and the public, not about tearing the house down around us. Go for it in the primaries: educate, explain, build. But building for the future in the general election requires grace, teamwork and joining with other party members in expressions of mutual respect.

We could seek purity if we had a parliamentary system which includes minority voices, and doesn’t force compromise candidates. But Big Donald makes clear the dangers of the presidency by concentrating power in his hands.

Our system has other ways to take account of minorities except where voters are so polarized that they shun candidates who merely try to take account of everybody’s needs. In such states, prejudice against Black and Brown Americans can leave them with zero influence in the legislature and every harm done to minorities wins applause, leading to the most hateful policies. That, thank God, is not the way it’s supposed to be. When lawyers could prove polarized voting, they often got courts to redesign voting districts so that minorities could elect candidates and get into legislatures. We’re not in heaven and have made mistakes but, yes, we’ve made progress.

I respect Alexandria Ocasio-Cortez, Bernie Sanders, Elizabeth Warren and others like them but they’re supporting Joe. There is no path to success by way of Donald Trump.

Obama never got the free hand that Mitch McConnell gave Trump with the help of white supremacists, gun-toting militias, Proud Boys, and the Nazis who rose from defeat by American soldiers in World War II.

No movement that could consistently defeat opposition candidates in primaries has taken over the Democrats. So Democratic leaders have to function as coalition builders. Those of us who want more should build and prepare to flex some muscle in future primaries. But electing the bully will cut off democratic alternatives. He and his supporters have no respect for democracy and will do their best to close it off. They want to rule like slave-owners and tyrants.

Parties respect and cater to people they can get to the polls. Sitting elections out doesn’t convey protest. Politicians read no-shows as apathy, lack of interest, people they don’t need to worry about. Let me make the point another way – the most extreme and violent people in the Republican Party are terrified the people will elect Biden and depose Trump. There’s a reason for that.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on October 20, 2020. I posted an earlier version on Sept. 30 under the title “Uncle Joe or Donald the Bully” without waiting to put it on WAMC.


Trump’s Scorn for America and Americans

August 17, 2020

I argued on this station that Trump should have been impeached for disloyalty. The American people understand disloyalty. They didn’t understand the significance of the articles of impeachment.

The House impeached him for trying to get a foreign government’s help for his campaign and for defying House subpoenas. The people agreed that Trump did what he was charged with, but apparently thought those actions were trivial.

Democrats didn’t bear down on the bigger issue – Trump’s disloyalty. Not only did he take money and assistance from foreign countries, itself unconstitutional, he strengthened their positions and weakened our own. He undermined institutions that kept Russia in check; isolated America from its real friends; and deluded his followers about an international pandemic. No president should be allowed to sell the welfare of this country to foreigners or rich friends. That’s disloyal.

Trump’s disloyalty goes way beyond the payoffs he accepted. Trump despises America and Americans unless they are very very rich.

  • He despises American workers, providing lavish tax breaks that help his rich supporters pay peanuts to their workers, outsource and off-shore their jobs.
  • He despises the American people, authorizing his rich friends to poison our air, water and climate so his rich friends can make a little more money and give him some too.
  • I should add his despicable attitude toward women.
  • And so great is his compassion for the American people that he’s been trying to deprive us of our health care in the middle of a health crisis.
  • So great is his compassion for older Americans, for our parents and grandparents, that despite Americans’ support for Social Security, he’s trying to eliminate it with an Executive Order to defund and bankrupt it so he can say there’s no money left. His order is unconstitutional and may be overturned, but it’s disloyal to the people of America.
  • He grandstands about policies that are supposed to help workers and farmers, but disrupts their lives instead.
  • Trump told us he wanted to defund the Post Office to prevent us from mailing in absentee ballots, but when it became clear that the American people didn’t want their Post Offices defunded, he blamed it on Democrats. His war on the Post Office is not only a war on absentee ballots, it’s a war on the Christmas cards we send every December; it’s a war on our mail carriers, whom many of us know and like; it’s a war on voting safely without crowds that spread the virus; and it’s a war to force us to pay private carriers much more money than what we pay the Post Office to carry our mail, medicines, and bring us our Social Security checks. In other words, it’s another attempt to rip us off.
  • And to cap it off, he hates our democratic system, threatening to stay on in spite of the election, so he can be dictator, and the rest of us merely subjects.

In other words, everything for Trump and nothing for America. That’s the real issue. We know he’s a fraud, claiming fake news so often it’s an obvious effort to avoid defending his behavior.

Trump is running a Ponzi scheme, trying to cover his debts and increase his own wealth by bilking the rest of us. His misbehavior is criminal. But don’t lock him up. It would be better to string him up, or at least deport him and take his passport away. Let him shine Putin’s shoes in the Kremlin.

— An edited version of this commentary was scheduled for broadcast on WAMC Northeast Report, on August 18, 2020.

 


To prevent a coup – strengthen the military spine

August 4, 2020

Two weeks ago, I commented about Jefferson’s fear of a presidential coup. Last week I spoke about using nonviolent methods to prevent a takeover by the incumbent president, who told Chris Wallace on Fox that he might not leave the White House if he loses the coming election. Afterward, I expressed my concerns and showed a copy to Ian Shapiro, a friend and polymath who’s done brilliant work on both foreign and domestic policy. He sent me back a portion of his new book on economic insecurity, The Wolf at the Door: The Menace of Economic Insecurity and How to Fight It. I quickly realized we were approaching the same problem from different angles. Insecurity makes people want to believe that Trump is leading them to better days. And getting Ian’s message across will help protect us against a presidential takeover.

The Army is a crucial player in any takeover. American military tradition is stanchly against political activity and devoted to defending the Constitution. There would be great resistance at all levels to using the military politically, especially to end politics by takeover. And because the military contains a large cross-section of America, we all influence it. Military diversity makes it harder to unite on unauthorized, unpopular activities in conflict with American military tradition, especially if they depend on secret planning.

But presidential takeovers in other countries force us to the sobering realization that a perverted commander-in-chief can pervert the military, given enough time. That makes all the work we’re doing to prepare for this election crucial to prevent White House treason – even though he’s talked about it openly. Concerted opposition to Trump and to takeovers, expressed in a vigorous campaign, make it less likely that the military will participate in a coup.

But outside the military, Trump has been constructing other forces which respond to him – using or threatening to use the National Guard, border guards and other armed federal agents in Portland[1] and elsewhere to stir up trouble where peace had reigned. Even more serious are the private militias that conduct their own training with their own arsenals. The great bulk of domestic terrorism has come from those groups. Instead of fidelity to the Constitution, they aim at violently defeating American government in order to achieve undemocratic aims in conflict with the Constitution and the law. Some American elections have been overturned by force of arms.

Unreconstructed admirers of Civil War secessionists would gladly reverse the results of the Civil War. Guns and racism have become closely entwined. Gun shows and private militias confront us with a plethora of racist and conspiracy theories making the point.[2] Their treasonous impulses fuel my strongest objections to gun rights today – guns are not being used for self-defense but for calculated murder, intimidation and political takeover.[3]

Trump’s outrageous racism and complements to racist killers are obvious efforts to get those armed but irresponsible groups behind him, ready to function as a palace guard to keep him in office regardless of the election. Private militias, like gangs and criminal cartels are dangerous because they oppose democracy, are divorced from national values, and expect to gain from violence. Instead of respecting peaceful demonstrations, they’ve spawned provocateurs in places like Portland, to give Trump an excuse for shutting democracy down. They and their standard-bearer in the White House must be stopped. And we have to keep up the fight for government of, by, and for the people.

[1] Washington Post Blogs, A violent send-off on feds’ final night at Portland courthouse, July 31, 2020 Friday 12:07 AM EST

[2] John A. Wood, THE PANTHERS AND THE MILITIAS (Lanham, MD: University Press of America, 2002); Kenneth S. Stern, A FORCE UPON THE PLAIN: THE AMERICAN MILITIA MOVEMENT AND THE POLITICS OF HATE (Norman: U. Okla. Press, 1997); Southern Poverty Law Center, “Terror From the Right: Plots, Conspiracies and Racist Rampages Since Oklahoma City,” http://www.splcenter.org/get-informed/publications/terror-from-the-right (visited Jan. 23, 2014).

[3] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 173-77 (NYU Press, 2016).


Our Human Constitution

July 13, 2020

Recently I spoke with a class of high school girls. They asked me to talk about the Constitution and we agreed I’d talk about how we interpret it. I wasn’t advocating any particular method. In fact, I referred to the late Justice John Paul Stevens, adopting an observation by the then sitting president of the Israeli Supreme Court, that a judge does best who “’seek[s] guidance from every reliable source.’”[1]

While talking with the girls, I finally realized how to encapsulate what I wanted to say: The Constitution is a human document, written by human beings for use by human beings. It is not self-executing. There’s nothing automatic about checks and balances. They work when people believe in and use them. They don’t work when people in power care only about favoring themselves and their friends.

That’s not a flaw in the document. There are flaws in the document. It still bears the marks of slavery  ̶  numerous clauses were designed to protect slave-owners even though the word slave does not appear. And it was written by men for men in 1787. But the men who wrote the Constitution referred to its prohibitions as “parchment barriers.” Parchment was an older form of fine paper, often used for formal documents. The Founders clearly understood that the document they wrote and ratified would prove as good as the people running it.

I didn’t draw conclusions for the girls, but I want to spell out some implications for you:

  • When the president thinks he is an elected king and should control all the levers of government without being questioned or restrained and when a majority of Senators believe they should protect him, they’re simply making the Constitution irrelevant. The Constitution doesn’t protect the president or the senators; they do it for themselves.
  • When the president is more intent on encouraging us to fight among ourselves over the color of our states and our skins than to work together for the good of the country, the Constitution hasn’t failed us. We’ve failed it.
  • When the president turns us from leader of the free world to its laughing stock, the Constitution hasn’t failed us. He has.
  • When the president encourages the most selfish among us to sacrifice the air, land, water and climate that sustain us, the Constitution hasn’t failed us. He has.
  • When the president dithers for months after being warned of a coming health catastrophe, the Constitution hasn’t failed us. He has.
  • In the days before we had antibiotics and other drugs, quarantines were the principle way that our governments tried to protect us from infectious diseases. When people carry weapons into the state Capital and threaten state governors over quarantines,[2] the Constitution hasn’t failed us. They have.

The Constitution is a parchment barrier. We have to do more than protect the document. We have to use it wisely.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 14, 2020.

[1] Judicial Discretion 62 (Y. Kaufmann transl. 1989).@ BedRoc Ltd., LLC v. United States, 541 U.S. 176, 192 (2004) (Stevens, J., dissenting).

[2] See https://www.businessinsider.com/michigan-open-carry-laws-legal-protesters-guns-at-state-capitol-2020-5 and https://www.newsweek.com/michigan-closes-down-capitol-face-death-threats-armed-protesters-against-gov-whitmer-1504241.


Hitler’s Acolyte – Trump’s Dangerous Motives

October 8, 2019

I spoke last week about the importance of the whistle-blower’s complaint. It’s also the tip of the iceberg. Burt Neuborne was ACLU legal director and a founder of NYU’s Brennan Center.  I’ve known Burt for decades. His publisher accurately describes him as a leading constitutional lawyer who’s sued every president since LBJ.

His new book raises very serious concerns about Trump’s dictatorial intentions. As Burt notes, we’ve known since 1990 that Donald Trump kept a copy of Hitler’s collected speeches by his bed and studied them carefully.

For those born later, Adolf Hitler initiated World War II and the extermination camps that were responsible for the deaths of seventy to eighty-five million people, from all continents. More than a million American soldiers were killed or wounded. That’s Trump’s idol.

Burt goes further, comparing the themes that both Hitler and Trump emphasized. Whatever else he hasn’t figured out, or doesn’t care about, Trump has been a good student of Hitler’s.

There isn’t time to lay them all out. Like Trump, Hitler fired his supporters up with racial and religious hatred, extreme nationalism, closing borders, mass detention and deportation. Almost every word from Trump is about hostility based on race, religion, national origin, closing the southern border and extreme nationalism, stirring a recipe for violence.

Hitler and Trump insulated themselves from criticism by denying the press any credibility and found ways to reach the public without going through the media. Reporters spend their days interviewing people, checking documents, records and participants in the news. Trump simply calls everything fake, and attacks the media in its entirety, though he’s obviously the biggest liar among us. Everything he says is reduced to single adjectives – fake, terrific, good, bad, etc. – without evidence or explanation while denying the obvious. Unhinging his audience from the work of everyone else means he can speak without fear that contrary argument will reach his audience’s ears, until truth becomes meaningless.

Both Hitler and Trump cemented their rule by enriching the wealthiest, giving them outrageous gains, tax cuts, and exemptions from rules meant to protect the public from death, destruction and deceit.

Both thumbed their noses at democratic, judicial and legislative processes and powers. In other words Trump cares only about himself and his ability to become a dictator in the style of his idols. Encouraging people to use what he labels their “Second Amendment rights” in politics is what Hitler did with his Brown Shirts, substituting the nozzle of their guns for ballots and elections. That’s the path to hell but it is a path, with the trappings of dictatorship, that looks good to Trump.

I’ve hesitated to call for impeachment because my priority is to oust Trump from office, however possible, before he can get further with his obvious desire for unchecked power.

That said, Trump’s refusal to obey constitutional limitations on using his office for personal gain, and to abide by statutes and congressional subpoenas, are clear indications of his thirst for power and disrespect of the work of the American Founders, the Constitution, its meaning, original or otherwise, and the system of checks and balances set up to control people like Trump. The emoluments clause was intended to limit opportunities for presidential disloyalty to America. But rather than make America great again Trump is intent on destroying America for personal gain, the ultimate form of disloyalty.

He must be removed from office.


Others on the Plight of America

June 23, 2018

Permit me to recommend three articles. Each goes well beyond Trump but Trump is an engine of each.

Timothy Snyder, a professor of history at Yale who wrote The Road to Unfreedom, reviewed Benjamin Carter Hett, The Death of Democracy: Hitler’s Rise to Power and the Downfall of the Weimar Republic. Comparison with contemporary America are uncanny. Snyder ends his review saying “The conclusions for conservatives of today emerge clearly” from this history of the fall of German democracy: “Do not break the rules that hold a republic together, because one day you will need order. And do not destroy the opponents who respect those rules, because one day you will miss them.” But recent events suggest little respect for those lessons.

Kori Schake, deputy director of the International Institute for Strategic Studies, wrote The Trump Doctrine is Winning and the World is Losing. Summarizing a magnificent article is difficult but for me the kernel was that “if the United States doesn’t sustain” cooperation among the world’s democracies, “a rising power will eventually force it to defend its interests or succumb.” That’s been the pattern of power transitions except the transition from Britain to the United States, “an exception born of their democratic similarities, and one unlikely to be repeated between the United States and China.” At this point the U.S. handed over leadership in Asian trade to the Chinese with our withdrawal from the Trans-Pacific Partnership, and weakening alliances among democratic nations allows China to intimidate weaker countries and reshape Asian geography and maritime rules without cost. Moreover, the costs of the American led world order were small and declining, especially by comparison to the benefits.

And David Sanger, national security correspondent  for the Times and author of the forthcoming The Perfect Weapon: War, Sabotage and Fear in the Cyber Age, after exploring the extent of cyber-sabotage and American vulnerability, shows the cost of not dealing with growing Russian capability because of its political implications.

Will America choose another Roosevelt to pull us out of this deepening vortex of destruction or will it choose a Hindenburg to hand the reigns to a beast preparing to roast, gas and kill us all?


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.


The Nunes Memo and Trump’s Disloyalty

February 6, 2018

I prepared something else to talk about today but find myself furious about the misuse of the Constitution to prevent getting at the truth. Trump, and his supporters, are attacking the Mueller investigation into ties between the Trump campaign and Russia. The Nunes memo, written by congressional Republicans, is part of that attack. It says that, though well after the investigation began, a former member of British intelligence who had ties to the Clinton campaign, transmitted information which was included in a request for a warrant from the Foreign Intelligence Surveillance Act court, the FISA court. Based on the Nunes memo, Trump and his supporters claim that the investigation is tainted.[i]

Members of the FISA court are all appointed by the Chief Justice of the U.S. Supreme Court. Since 2005, that’s been Chief Justice John Roberts, a Republican, Bush appointee. The Court found the papers sufficient and renewed the warrants.

But the Nunes memo and use of a source sympathetic to Clinton, are being used as part of a campaign to thwart the investigation and dump those who run it. No Democratic hands allowed. Most Republican commentary about the memo claim it proves that the FBI, and the Russia investigations conducted by the special counsel, are tainted by bias against Trump.

First, it is unacceptable for Trump or his supporters to insist that the FBI must decide whether to investigate based on whether the informants are Republicans or Democrats, supporters or critics of Mr. Trump, and forego finding out whether the information is or can be corroborated. Playing politics with policing that way violates the Constitution.

That’s the way police function in dictatorships. Are you for me or against me? If you’re against me, your knowledge and opinions don’t count and can’t be trusted. We alone count and we’re pure. The very idea of a loyal opposition is crucial to the survival of democracy. But it’s anathema to Trump Republicans.

So Trump’s release and use of Nunes’ memo is the best and most important reason to consider impeaching him. He lacks loyalty to democracy; instead, his power trumps all else. This man is the greatest danger to the values on which our country was founded. The fact that he was apparently born in the U.S., as he claims, only makes his disloyalty worse.

Second, a large part of the information gathered by any police organization comes from people who are in some way connected or involved. To exclude information by such informants would cripple policing. To rely only on information from one side of a dispute or the other threatens justice, as does refusing to investigate. Motives deserve consideration and were disclosed to the FISA Court, but the ultimate question is whether the information can be corroborated and is correct. To follow the Nunes approach would undermine the ability of American police to enforce the law, impartially, so that no one is above the law.

The FBI historically was a conservative organization. A succession of presidents insisted that it rise above politics and investigate crimes without regard to politics. Trump is the first president to insist that the FBI should begin with a political test – a political test for employees and a political test for informants. This president has no respect for constitutional norms. These too are grounds which deserve to be considered for impeachment.

— This commentary was broadcast on WAMC Northeast Report, Feb. 6, 2018.

[i] The Democratic response has not been released by the House Intelligence Committee but a Democratic statement of objections can be found here.


The Innocence Project

December 26, 2017

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.


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