Kangaroo Court for Whitewash

January 27, 2020

Republicans charge Democrats with trying to impeach Trump since the day he took office, never mentioning that Trump announced his intention to violate the Constitution’s prohibition on foreign corrupt influence, the emoluments clause, from day one. Democrats were apparently supposed to do their patriotic duty by lying down and rolling over. Now we’re involved in a trial of exactly what the clause prohibited – foreign corrupt influence, that affected our handling of national defense, and may have affected much more. Foreign corrupt influence is serious.

Unfortunately, the impeachment process as now planned looks like a kangaroo court. No witnesses, no cross-examination, no documents, no evidence. Only McConnell could get away with allowing president Trump, the defendant, to decide how he’s to be tried and who can testify – not based on rules of evidence but whatever the defendant wants to happen. No one, of course, would ever be convicted of anything if defendants could control whether anyone can testify, and, if so, who.

Evidence is admissible if it’s relevant unless barred by the Constitution, law or statutorily authorized Supreme Court rules. Evidence is relevant if “it make[s] a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” The Chief Justice, presiding, could rule on admitting evidence according to law. The existing process makes him into window dressing. McConnell, who organized this process, gets my vote for kangaroo-in-chief.

Republicans, following Trump’s lead, claim everything they dislike is fake news. They’ve denied so much so often that one can’t tell when they’re crying wolf. But, if there is a wolf, his den is at Mar-o-Lago.

The believability of testimony is enhanced by statutes which make it a crime to lie to Congress. Absent that, why believe anything Trump’s lackeys say, especially those who can hide behind the congressional privilege not to be tried for anything they say in Congress?

What I’ve been hearing instead of any responsible defense are attacks on impeachment, attacks on Democrats for turning to impeachment, attacks on the use of circumstantial evidence and a cauldron of invectives that one can fearlessly sling around as opinion. Republicans claim everything Democrats say is political. That garbage is reversible. If we focus only on motive, then everyone is guilty and all we get is cynicism. But there are facts – testimony, documents, science, records. Republicans respond by attacking the evidence as circumstantial, though circumstantial evidence is often more reliable than words that can be continually refashioned. And Republicans attack the absence of magic words about quid pro quo from the president’s mouth because no one that the President or the Senate Republicans would allow to testify heard the president use the magic quid pro quo words, and they barred those who heard him from testifying because Republicans don’t want those words on the record.

But that makes a mockery of the Constitution and the several clauses relating to impeachment, clauses the Founding Fathers took so seriously that they wrote five different impeachment clauses into the Constitution. Responding to serious and substantial allegations that call into question the loyalty of the president by attacking the Constitution’s prohibitions and remedies makes a mockery of the obligations of every officer of the U.S. Government, from the President down. It makes crying wolf and lying to everyone, into constitutionally protected misconduct. Thanks for the civics lesson, Mr. McConnell.

— This commentary was scheduled for broadcast on WAMC Northeast Report, January 28, 2020, but since the impeachment proceedings have preempted air time, it’s not clear at this moment when it may have been aired.


Cry the Beloved Country

January 21, 2020

ALL our office-holders have sworn to protect and defend our country and our Constitution. Some of us fought and died for it. We’ve argued about the meaning of the Constitution because we cared what it meant for America. We’ve fought over amendments to the Constitution to make it better but also to preserve the strengths of our heritage.

Now we’re struggling over impeachment. When the House considered impeaching Nixon, I feared that impeachment should not be tried unless it would succeed because of the president’s many powers. Impeachment can unleash the worst of America.

We now have witness intimidation. Trump has fired people who were investigating possible wrongdoing. He threatened with jail the man whose investigation of Hillary put Trump in power, because Comey dared investigate Russia too. Trump demands exposure and prosecution of the whistle-blower whose report had already been corroborated. An American ambassador was recalled and told to board the first plane home because of fears that she would be assassinated in circumstances suggesting the threat was from the Administration. No “deep state” compares to him!

This man is dangerous – to critics, to justice and to America itself. That’s why our laws protect the anonymity of whistle-blowers. That’s why Trump can’t stand an anonymous whistle-blower who’s been corroborated. He can’t threaten him or her without identifying who it is. But he can threaten and scare everyone else – the first and indispensable step of dictators. This man is an imposter – he is not an American.

Republicans object that the people should determine Trump’s tenure as if impeachment were unconstitutional, though the Constitution provides for impeachment and the underlying issue is whether we can trust an election while Trump is in office blocking efforts to protect the security of our elections and cuddling up to Russians who want him in power for their, not our, purposes.

Yes, impeachment is about “high crimes and misdemeanors” but cheating the country is also a high crime and misdemeanor. I want to replace Trump with people who have actually spent their lives and careers figuring out who took the American dream out of so many households; people who are trying to put the dream back where it belongs, into the homes of all the good people of America, not into the bloated assets of the people who have the wealth and power to rip every last penny out of our lives and push so many of us onto the tightrope, so accurately described by Nicholas Kristof and Sheryl WuDunn, and over the edge into what we now describe as “deaths of despair”. Trump is devoted only to the rich, the only people who can be useful to him. He must have read the Dictator’s Handbook; he’s doing everything the authors identified to retain power. It won’t be part of the trial but that disloyalty to the people is a very high crime.

Alan Paton, a South African, published Cry the Beloved Country in 1948 at the height of the struggle over apartheid. Indeed, cry our beloved country and our beloved Constitution. I pray that Americans will come to appreciate how badly Trump is cheating them and how devoted to them are some of the people who are trying with all their might to get him out of office – before it’s too late.

— This commentary was scheduled for broadcast on WAMC Northeast Report, January 21, 2020.


What are Americans that God is mindful of us?

January 14, 2020

Lots of people believe their countries are best. We do too. Caring for one’s country is good. Economic objections to admitting refugees don’t justify brutality. Strategic disagreements about Iran’s objectives don’t require going to war. But demonizing people changes the stakes. Treating them as nothing but vandals and killers, unworthy of concern, drives the ugliest parts of both the refugee and Iran crises, and threatens everyone in a chorus of hate.

Trump’s African-American predecessor created a path to peace in the Middle East. Obama was hardly the first African-American with diplomatic skills. Nobel Peace Prize winner Ralph Bunche negotiated the 1949 Armistice Agreements. Powell and Rice are more recent. But Trump can’t recognize Obama’s achievements. So he shredded the path to peace, revived animosities that made it useless for the US to stay in Iraq, and demonized Iranians and Mexicans, while too many of his supporters murder those they demonize.

Insistence that other peoples are unworthy of concern is like throwing a hand grenade at our common Biblical, Judeo-Christian and Muslim heritage, for the Bible, and the Abrahamic tradition it embodies, is the common heritage to which so many of us in America cling.

The Bible asks in the Book of Psalms: “What is man that Thou art mindful of him?”

Must we, too, be mindful of others?

Or do we think that we’re only a little lower than the angels, entitled to rule over God’s other peoples, to disparage, demean and vilify refugees and entire countries?

America’s strength comes from protecting human rights and supporting international law. We, not just a statue in New York harbor, have been a torch of freedom throughout the world.

Our Declaration of Independence became a landmark in the development of universal human rights by showing “a decent respect to the opinions of mankind” and proclaiming that all of us “are created equal … endowed by … [our] Creator with … unalienable Rights … [to] Life, Liberty and the pursuit of Happiness.”

Our Constitution guarantees rights to all. The Bill of Rights speaks to “the people,” every “person,” and any “accused.”

The 14th Amendment defined citizenship so that it could not be denied to African-Americans or any other race – red, brown, yellow, whatever. These are among the commitments in that torch of freedom.

When we refuse visas or reentry to refugees, returning citizens, residents or visitors simply because of ancestry or faith, we not only violate the Constitution, we dim and tarnish our torch.

For centuries, we’ve been devoted to a world of rules and mutual obligations as the best path to peace. America wrote the rules of international order after World War II for a grateful world. No one forced NATO, the UN, regional and world financial organizations on us. When this country dishonors our obligations, to Iran, to NATO, the EU, or to refugees, who’ll trust us? If we’ve become a rogue state, whose interests align with ours?

God rescued the ancient Israelites from Egypt. But the Lord reminded them, in Amos 9-7, that God also rescued other very different peoples. If God pays attention to America, it’s not so we can celebrate or claim to be #1, the best or most powerful. It is because we have a job to do for all humankind.


Trump’s wrong approach to Iran

January 7, 2020

What’s wrong with Trump’s approach to Iran? Let me count the ways.

First, Trump’s claims about stopping Maj. Gen. Qassem Soleimani’s plans make little sense. What had been planned can take place with or without him. Iranian strikes are more, not less, likely now.  This is too similar to the prelude to the war in Iraq except that Trump isn’t taking the time to try to convince anyone. We just have unsubstantiable and probably false claims as a basis for very costly decisions.

Second, the timing is suspicious. War threats blew impeachment out of the news. In other words, everything is PR.

Third, Trump’s stated policy is tit for tat. But where does it end? If we need to have the last strike, why don’t they? Most important he has crushed any diplomatic path to peace as a way out.

Fourth, this was totally unnecessary. President Obama created a path to peace in the Middle East. Only Trump thought the Iranians weren’t obeying the nuclear agreement – those who actually went and looked agreed the deal was working.  But Trump shredded the existing path to peace, revived animosities that made it useless to stay in Iraq, provoked Iran by increasing sanctions after destroying the legal basis for sanctions and is now delivering the Middle East to other foreign powers like Russia and China. Iran has been measured and restrained by comparison.

Fifth, the military is not united on this. Trump has found people in the military who will work with him while other high-ranking and responsible brass react that his missions are not properly vetted and do more harm than good. Disagreement is fine but the possibility that Trump is reshaping the Army so that it can’t threaten a Trump takeover scares me most. Then we are all in the sewers, concentration camps or gas chambers. If you think that’s not possible, that’s exactly what does make it possible. We have to stop him, not ignore him.

Sixth, it is now much more likely that we are headed for war. Trump has managed to move the Iranian people from blaming their own government for their troubles to blaming the U.S. So the political pressures in Iran are now all on the side of action again the U.S.

Seventh, Iran does have the capability to react. They are well-organized for asymmetrical or unconventional warfare. American power is based on throw weight and mass destruction; Iranian power is based on secrecy and guerilla tactics. Military conflict with Iran will be very costly, a view strongly held within the military. Taking them on militarily makes little sense when there are better ways of managing conflict.

The real problem is to find someone who behaves like an adult in the White House. That makes the impeachment process more urgent and important. And by the way, the Constitution demands a trial. Trials in America are based on testimony under oath. Trial without witnesses is an oxymoron, another way Senate leaders insist on ignoring the Constitution – because they know testimony would be very damning to Trump.

For those interested, here is a link to expert commentators and the views of the organization of former Peace Corps Volunteers who served in Iran.


Me and Bruce

December 19, 2019

Some of you may think that my comments on the subpoenas and Bruce Ackerman’s comments on the rules for the trial of the impeachment charges are in conflict. If the Senate adopts the rules used for the trial of the charges against Andrew Johnson, Bruce accurately describes the Senate process. I’m not convinced the Senate will go that way, but Bruce is right that it is important to understand what that track means. My own comments were aimed at Republican complaints that Democrats should have investigated more. As I outlined,  the significance of whatever the Court does about the subpoenas, will be entirely political. The evidence is sufficiently out there already .


The Supreme Court on the Trump Subpoenas

December 17, 2019

The Supreme Court decided to hear the Trump Administration’s appeals from lower court orders that tax returns and other documents be provided. What does that mean?

The Court set the case for argument in March. The Court has a lot of control over timing. But generally, decisions are announced when the various opinions are finished.  That can take a long time in controversial cases. So sometime in June is likely.

Four members of the Court can set a case for hearing. Those who vote to take a case don’t have to vote for the side requesting it but, if they are favorably inclined, those four are only one vote short. Statistically, the Court decides in favor of the party requesting review between two-thirds and three-quarters of the time. That suggests Trump’s team probably wins.

But given the importance of the decision, the Court might just feel that it should make the final decision. Trump has belittled and attacked lower court judges. It would be harder for him to attack the Supreme Court.

A Supreme Court decision for the Administration could affect momentum. Deciding for Trump could anger Democrats and bring more to the polls, making Democratic victories more likely in 2020. It could also lead some Trump supporters to relax about the election, also making a Democratic victory more likely.

It will be difficult for the Court to justify deciding for Trump. The cases aren’t in his favor. Other presidents have had to comply with subpoenas. Deciding for Trump will make the Court seem totally political. Some members of the Court’s conservative majority would regret that. They think of themselves as judges, not partisans. Chief Justice Roberts explicitly said the Court is composed of judges, not partisans. Of course, we’ll see.

Legally, what’s already been disclosed makes a very strong case that Trump violated the Constitution, and broke the law, in ways that justify impeachment. As I’ve described, Trump put his personal interests above the national interest. He had previously decided to support and ship arms to Ukraine, stopping only to get a campaign message in his favor from the Ukrainian president. He changed back only when the story of the phone call came out. Everything was about his campaign and nothing about American interests.

Republicans talk about calling the whistle-blower. That would compound the violations of law, and the whistle-blower has nothing relevant to offer. Any decent judge would sustain objections to calling the whistle-blower to testify. All the evidence has now come from others. Not a single fact comes from the whistle-blower, who could only testify about what he or she heard or saw in the transcript. Other people heard the call, and saw the transcript. With the investigation done, the whistle-blower has nothing to offer. Most of what he or she said was hearsay and is inadmissible. Law enforcement uses hearsay as a tip – it checks on that tip by going back to people with direct knowledge and verifying or contradicting what the whistle-blower said. Here, the whistle-blower’s allegations were repeatedly corroborated. The whistle-blower’s relevance ends at that point.

Juries sometimes ignore the law and vote to dismiss what is clearly established. That’s the real relevance of the subpoenas. I doubt Senate Republicans will do their duty on the current record – most have made it clear they don’t care whether Trump is innocent or guilty. But additional disclosures could make it politically as well as legally impossible to ignore the evidence.

— This commentary was broadcast on WAMC Northeast Report, December 17, 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.


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