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.


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 .


Impeachment rules in the Senate

December 17, 2019

Bruce Ackerman of Yale Law School has written a clear description of the rules that will apply in the Senate. He explains that McConnell will have much less control than most have been assuming and that Chief Justice Roberts will have much more control. That will matter in many ways that Bruce explains. See https://slate.com/news-and-politics/2019/12/senate-impeachment-trial-john-roberts-mitch-mcconnell.html


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.


Impeachable Offenses – Disloyalty and Denial

December 10, 2019

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

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

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

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

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

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

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

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

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

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

 

 


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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