Monthly Archives: September 2018

Final Thoughts on Kavanaugh Hearing

Dr. Ford was entirely credible. She had no reason to expose herself to this notoriety if she were lying. She, and she alone, was prepared to subject herself to an independent FBI investigation.

Kavanaugh’s refusal to say, simply, “yes, I want an FBI investigation” is definitively and finally condemnatory. He was playing the Republican-Trump songbook and not prepared to deviate, even when trapped in the corner where Senators Durbin and Harris put him.

Kavanaugh’s opening intemperate outrage and hostility and the attacks on the “left-wing” Democrats are, by themselves disqualifying because they demonstrate a person of questionable temperament. These attacks raise the serious question whether Kavanaugh can fairly decide any case in which there are left-right political implications. Will he not be faced with demands to recuse himself from every such case if he is affirmed for the Supreme Court?

The Republican majority continued their partisan march to affirming the nomination. Chairman Grassley repeatedly interjected himself into the process to challenge what he thought were threats by Democrats to the pure record he wanted to come out of the hearing at the end of the day. Without explaining it, Grassley abandoned the Republican strategy of having Rachel Mitchell conduct the witness examinations. He did this to give Senator Graham to gain the floor, during which Graham went berserk in attacking the Democrats, playing into the Kavanaugh theme that his character had been assassinated and his reputation and family “permanently destroyed.” Graham’s performance was Oscar-worthy; in my view it was designed to do two things: (1) disrupt the rhythm of the hearing, and (2) show Donald Trump that Graham is still totally and relentlessly loyal to him. On the second point, everyone should read Bob Woodward’s book, Fear, wherein Graham’s very close relationship as consigliere to Donald Trump is demonstrated beyond a doubt.

In my opinion, every move, including the tenor of Kavanaugh’s remarks and his disrespectful responses to several Democratic senators, was likely cleared by Kavanaugh with the Republican strategists managing his campaign for the Court seat. The anguish of the Republican members of the Judiciary Committee was largely feigned political showmanship.

At the end of the day, even if it is true that the Democrats have somehow orchestrated the alleged “attack” on Kavanaugh in an effort to prevent the filling of the Supreme Court seat until after the midterm elections, a sufficient question of character and temperament has been raised to warrant two steps: (1) ask the FBI to conduct an independent investigation of Dr. Ford’s allegations against Kavanaugh, and (2) disclosure of all the withheld documents, including public disclosure of the “committee confidential” documents that do not contain national security or other serious private information. This should be done regardless of how long it may take.

 

Final Thoughts About the Judiciary Committee Hearing on Kavanaugh

On the verge of hearing Judge Kavanaugh’s testimony, which should be very brief (“I am not guilty; I didn’t do it; I didn’t go it), Sen. Lindsey Graham has, in perfect character, come out as Trump’s attack dog, threatening Democrats with the idea that “if this is the standard by which to judge a nominee, Democrats will pay in the future.” Graham claims Democrats are just playing political games to prevent a vote before the midterms. Maybe, but so what? Remember Merrick Garland? Couldn’t even get interviewed and a vote? Never had a chance in Republican controlled Senate. If this is just politics, and not a serious issue regarding the composition of the Supreme Court, it is just desserts for Republicans whose perfidy has come around to hit them in the head.

Graham’s display of anger at what he claims was an “ambush” by Democrats is misplaced but that is par for the Republican course. Did he really expect that Dr. Ford would come in and confess to something? The extent of Graham’s rage is a direct reflection of the reality that Dr. Ford carried the morning.

A final total speculation: Rachel Mitchell, the professional interrogator, actually believed Dr. Ford and was, perhaps involuntarily, hampered in her ability to get hard new information about Dr. Ford’s story. She had a tough job and with the regular interruptions to hear from Democratic senators and an emotional but credible witness, she probably could not succeed no matter what she did. Good.

 

 

More Thoughts About the Judiciary Committee Hearing on Kavanaugh

Sen. Whitehouse says he will pursue an investigation by whatever means possible. Grassley immediately interjects his “rebuttal.” Reading from a prepared list of alleged actions, including various “rebuttal” information to the substance of Ford’s statements. Grassley cuts off Sen. Klobuchar who tries to respond to Grassley’s remarks. Classic behavior by Grassley who is doing Trump’s bidding here by supporting Kavanaugh regardless of what evidence may show.

Mitchell refers to the “incident that we’re here about,” a curious choice when the more accurate and precise term would be “sexual assault.” Thereafter, the assault becomes the “incident” or the “event.” Now Mitchell is suggesting that Ford may have experienced other situations that contributed to her PTSD and other results of the attack on her. She also appears to suggest that Ford’s failure to mention Kavanaugh’s name in earlier discussions of the event is somehow significant. Then she suggests through multiple questions that Ford may have lied about her fear of flying when she used that as a reason she asked for the Judiciary Committee staff to come to her for an interview.

Sen Klobuchar brings up the polygraph test that indicated she was truthful in her statements about Kavanaugh. Klobuchar astutely brings up the issue of Kavanaugh’s employment history as being helpful to reconstructing the events. Grassley jumps in again to say that the committee made an offer to go to California.

Debate breaks out after Klobuchar asks that polygraph results be entered in record. Grassley now says more information needs to be in record after he previous refused Ford’s request to have the polygraph examiner testify. Grassley’s role as proponent of the President’s nominee could not be clearer, making a mockery of the concept of “advise and consent.”

Mitchell suggests something amiss in that Ford did not discuss the incident with Republicans. Ford indicates that she did not understand the committee was offering to come to California to interview her. Mitchell makes several chummy comments/jokes to suggest that she is a “friend” of the witness. Obvious technique.

Sen. Blumenthal spends most of his time praising Ford’s courage and hoping for bipartisan recognition of it, citing Sen. Graham’s book on the point. Fat chance, because the Republicans are locked into the Trump position that Ford’s story is a “con job.”

Mitchell explores the polygraph test, including whether she was counseled on how to take a polygraph. Ford is not aware of who paid for the polygraph test. Mitchell indicates the committee has requested copies of audio and or videotapes and other documents involved in the polygraph. Ford “assumed” the polygrapher was taking both video and audio with his computer, but is not sure.

At the root of the problem here is the refusal of the Trump camp to get an FBI investigation. The root is “we don’t want to risk finding out what a real investigation of the specific allegations might produce.” With all due respect to the staff of the Judiciary Committee, they cannot possibly conduct a validated and objective investigation of the person that the majority, their employers, has made absolutely clear is their selection for the Supreme Court.

 

Early Thoughts About the Judiciary Committee Hearing on Kavanaugh

Chairman Grassley opens the hearing with an apology for the way the witnesses have been treated. Then, he proceeds to undermine Ford’s position with commentary about Ford’s “secret” letter, complaining about Democrats’ handling of the letter, reciting statements submitted by witnesses adverse to Ford’s. This, Grassley argues, prevented investigation of Ford’s allegations. He also argues that the FBI investigation would have been useless, citing a statement from Joe Biden about how FBI investigation would have reached no relevant conclusions.

Then Grassley spends time promoting the credentials of the woman selected by the Republicans to examine Dr. Ford. Finally, he turns to attacking the other two women who have made allegations against Kavanaugh because they have allegedly not responded to requests for more information. This seems like another attempt to undermine Ford.

Ford struggles through her prepared testimony, on the brink of breaking down from the outset. She appears somewhat bewildered by the process details, which is understandable in that she has never testified before Congress. Dr. Ford’s attorney is engaged and supportive when she seems lost.

Under examination from Ms. Mitchell, Ford astutely suggests that an investigation of Kavanaugh’s employment history would help narrow the details of when the attack occurred. Chairman Grassley ignores this.

Sen. Durbin puts in record a long list of Kavanaugh classmates and others calling for an FBI investigation. Again, ignored. Grassley explodes at Durbin’s comments about the investigation issue, with Grassley claiming the committee could have conducted an investigation while preserving Ford’s privacy. If the situation were not so serious, this would be laughable, the declaration that the committee would have preserved Ford’s privacy while conducting an “investigation” in circumstances where the Republican majority is totally committed to confirming Trump’s nominee no matter what.

Force Trump to Plead the 5th Amendment

Shortly after Brett Kavanaugh, with full support from the Republicans on the Senate Judiciary Committee, stonewalled on all the important questions put to him, and may have lied about others, the news arrived that Trump’s attorneys have advised that Trump will not respond to questions from Special Prosecutor Robert Mueller in any manner, oral or in writing. This latest zigzag in Trump’s position regarding the Russia investigation may be a direct result of Kavanaugh signaling that nothing Trump does could lead Kavanaugh, as a Supreme Court Justice, to decide in favor of presidential accountability while in office.

Given that the Republicans have once again prevented the Senate from fulfilling its constitutional mission of advising and consenting to a presidential appointment to the highest court, it seems to me it is time to call the question on the bigger questions related to presidential accountability. It is time, I suggest, that Mueller should stop fooling around with Giuliani and camp and subpoena Trump to testify under oath about the Russia collusion issues before a grand jury. This would, of course, expose Trump to huge risks that he would perjure himself, further establishing the existence of “high crimes and misdemeanors,” the Constitutional threshold for impeachment. For that reason, among others, Trump would undoubtedly refuse to comply with the subpoena and the issue would then be put to the courts.

If, as is almost certain, Brett Kavanaugh is confirmed and the issue reaches the high court, which it will, Kavanaugh will be faced with the non-hypothetical question whether he will recuse himself from a decision regarding the power of the presidency to stand above the laws that apply to every other person in the country. Having just vanquished a king to gain the freedom of a new country through the Declaration of Independence and the Constitution, it is quite unimaginable that the Founding Fathers intended such immunity. Nevertheless, the issue has not been decided by the Supreme Court. It is also hard to imagine a better case to present the issue than one in which the nation’s chief executive declares that he is not accountable to even testify about his possible corrupt obstruction of justice and interference in the election that placed him in office. This is likely the best case that will ever exist for getting a ruling that the president is not above the law.

Of course, the president would have the ability to avail himself of the protection against self-incrimination afforded other citizens under the 5th Amendment. To avoid incriminating himself,

Trump would almost certainly be advised by his attorneys to plead the 5th Amendment in response to all questions put to him by Mueller’s investigators.

Imagine for a moment that Trump is asked direct questions about his knowledge of contacts with Russians, cooperation with Russians and more regarding the suborning of the election that we know to have occurred in 2016. He has four choices.

One, tell the truth. That’s probably not a good choice for him since the publicly available information strongly suggests his active complicity in the Russian election activities. We don’t know what Mueller knows but neither does Trump. In any case, truth-speaking is not his style, especially when it will make him look bad, so telling the truth is likely off the table.

Option Two, lie. This is the course he would be most tempted to take since he, and this is thoroughly and incontestably documented, lies multiple times a day about all manner of things, great and small. Telling lies about his conduct in this situation would expose him to a perjury charge, however, not a place he would want to be. Recall that he does not know what Mueller knows and can prove. Trump’s attorneys would be, indeed have said they are, so concerned about Trump’s propensity to fabricate that they would likely insist that he take Option Three.

Option Three, plead the 5th Amendment. Refuse to answer “on the grounds that answering may incriminate me.” Under American law, pleading the 5th does not constitute an admission of guilt and pleading may not by itself be the basis for a finding of guilt. In the minds of many members of the public, however, a president pleading the 5th Amendment on matters of this seriousness would be tantamount to a confession.

Option Four, refuse to appear for questioning. This might be seen as the “nuclear option,” whereby the president says, in effect, “I refuse to be held accountable and will not cooperate in the process that is trying to destroy me.” This question, I believe, was decided by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), a unanimous decision by the eight Justices participating (Justice Rehnquist did not participate). The opinion upheld a subpoena directing the president to produce to a grand jury certain tape recordings and documents relating to his conversations with aides and advisers. The grand jury’s prior indictment of seven people had named the president as an “unindicted coconspirator” in defrauding the United States and obstructing justice.

Trump’s attorneys would certainly argue that the Nixon decision was “distinguishable” from the Trump case. That is one of an attorney’s jobs and there is no doubt Trump’s lawyers would present the question to the courts, which would then make the final decision regarding the scope of the president’s immunity from the legal processes that apply to everyone else. To simply refuse to cooperate would, I think, not only create a “constitutional crisis,” but it would go a long way to weakening Trump’s political support in Congress.

I do not suggest, of course, that all Trumpers would turn on him in these circumstances. For reasons not fully understood, there apparently are millions of people who are so entranced by the Trump persona that nothing he does or says, or fails to do or say, will change their view of him. But they are already a minority of the voting population and, I suggest, the president taking the 5th Amendment on questions related to subverting the American electoral process or, worse, simply refusing to cooperate, would move many voters across the line. Unmoved though they may be by the reality that Trump supports policies directly injurious to their economic, social and physical well-being, many of those at the margin of acceptance would finally say “enough.” We don’t need them all to achieve a massive reversal in the polity in favor of reason and the rule of law. If, on the other hand, I am wrong about this, we are probably no worse off than before but we will have a better understanding of where the law stands on these issues and can take whatever actions are then necessary and appropriate.

Therefore, I submit, it is time to call the question on Trump. Time to force him to choose between telling the truth, lying, pleading the 5th Amendment or simply declaring “I am above the law.”

Republicans Berserk Over Anonymous NYT Op-Ed

This morning I awoke to find that Scott Jennings, “a CNN contributor, former special assistant to President George W. Bush, former campaign adviser to Sen. Mitch McConnell and currently a partner in a PR firm he co-founded in Kentucky, had published through CNN an attack on the decision of an anonymous Trump administration official to publish through the New York Times a statement about the chaos and malfunction in the Office of the President of the United States.

First, I want to acknowledge that Mr. Jennings is a very smart and accomplished person. His brief bio on CNN.com does not reveal that he is a Resident Fellow to the Harvard Institute of Politics. He had roles in both of President Bush’s campaigns in 2000 and 2004, before becoming Special Assistant to the President and Deputy White House Political Director in 2005. Among other things, his office advised the president on many issues. Jennings has helped elect U.S. Senator Mitch McConnell (’02, ’08, ’14), among others.

He also knows how to spend money in politics. In 2014, Jennings served as senior advisor to a Super PAC that spent millions supporting the re-election of McConnell. He also served in a similar role for the Kentucky Opportunity Coalition, a 501(c)4 non-profit that has spent millions of dollars on “issue advertising” in Kentucky since 2013. This biography makes clear that Jennings is a hard-core Republican operative with a likely interest in backing an imperial view of the president’s position.

The anonymous New York Times op-ed is by turns shocking/disturbing/terrifying (take your pick or all of them) in its acknowledgement of the disfunction in the White House led by an erratic and untrustworthy person but also reassuring to a limited degree in its contention that there are “adults in the room” taking care of the nation’s business when the president goes off the rails.

Note also a point largely overlooked in the breathless analysis of the event: “many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.” If true, the op-ed author is not alone in resisting the president. Also note that the author says the root of the problem is the “the president’s amorality,” and that he is “not moored to any discernible first principles that guide his decision making.” These comments support the view, often stated in press interviews, that Trump makes up everything as he goes along, based on some internal belief that he is a “stable genius” and knows more than all the experts that surround him in Washington.

The Republican establishment is going berserk over the idea that a high administration official would speak anonymously about the situation in the White House. Remarkably, many Republican voices are a chorus on the point that “we all knew Trump was bonkers” so there’s no news here. Their big objection is that someone close to the president has anonymously admitted to actively resisting Trump to prevent him from damaging the national security of the United States. Their view is that this person should instead resign his/her position and then shut up so the president can go about his business in any way he likes.

That appears to be the core of Jennings’ objections to the op-ed: “These statements are alarming, of course, because of the “senior” level status of the government official purported to have written them.” In other words, if the op-ed had been produced by a low level employee, who cares?

“But they are also alarming.” Jennings continued,

“because an anonymous, unelected government appointee is substituting his or her judgment for that of the duly elected leader of a constitutional republic. Nowhere in the op-ed does the appointee allege criminal or treasonous behavior on the part of the President. Rather, this person says the President is not faithful to “ideals long espoused by conservatives,” and conducts meetings that “veer off topic and off the rails. While I agree that unfaithfulness to conservative principles and bad meeting habits are annoying, are they grounds for the unelected to put themselves above the will of the people?”

Really? Just “annoying?” “Will of the people?” Jennings assumes away one of the most critical questions implicated by the op-ed, namely, that the Trump administration, having received massive support from a foreign power (Russia), is therefore illegitimate and that Trump is an unhinged person incapable of exercising the vast responsibilities of the office he holds. One must be careful about “will of the people” arguments in the context of the Trump administration where there is an outstanding investigation of possible collusion, with the president’s knowledge and approval, with a foreign power to steal the election.

When Jennings states “Voters knew exactly what they were getting with Trump,” he is implicitly admitting that the claims about the unhinged and dangerous behavior of the president are legitimate and certainly not surprising. Yet he, and the other Republicans howling about the op-ed, continue to argue that the use of anonymity and the acts of resisting the president are more important than assuring that the president does not undertake dangerous actions harmful to the country. I can’t say this is surprising when the record of the Republican-controlled Congress is considered. Those politicians clearly care more about retaining their party in power than they do about the risks to the country and the world from having a leader who resembles Kim Jong-Un in more ways than one.

Jennings also argues that the op-ed author has a “duty to resign” and then should reportwhatever egregious behavior he or she has personally seen to Congress and the Special Counsel Robert Mueller.” There are two problems with that position.

One, if all the insiders resisting the president’s unhinged behavior were to resign, there would remain no internal resistance to his “egregious,” or much worse, behavior. The sudden interest of Republicans in “honor” is a pathetic joke in like of the failure of Congress to exercise its checks-and-balances responsibilities.

Second, Mueller’s investigation is not about “egregious behavior” and Mueller’s taking such information would just lead to more Republican screeching about Mueller illegally expanding his investigation beyond its proper boundaries. It is beyond cynical to now suggest that Mueller look into the president’s “amorality.”

It should also be noted that if the op-ed author were to reveal his/her identity, he/she would immediately be fired, perhaps even arrested. That’s asking a lot of someone who was apparently trying to mitigate the worst aspects of a dangerous autocrat’s tenure in the nation’s highest office.

It’s also more than a little hypocritical to be arguing that there are superior “remedies created for us by the founding fathers.” Technically, that is true, but since the Republican majorities in the House and Senate have shown only blind obeisance to Trump regardless of his outrageous behavior bordering on if not actually treason, it is clear that the regular constitutional mechanisms for controlling an out-of-control president are not effective.

Jennings has a somewhat fair point in saying, “Is it right for unelected people to make decisions for him? Is this a signal we want to send the rest of the world, that constitutional order has fallen apart in the world’s most durable democracy? Because that’s precisely the destabilizing effect this op-ed will have on America’s standing in the eyes of our friends … and our enemies.”

Maybe, but if one was awake during the period since Trump’s inauguration, it should be clear that the constitutional order has already fallen apart and that our relations with friends around the world have been undermined and destabilized by the conduct of the president. It’s a bit late and completely cynical for anyone on the Republican side to be citing the “constitutional order” as a basis for objecting to the op-ed.

Jennings also argues “Those who stole papers from the Oval Office must be subpoenaed by Congress to explain themselves, because we deserve to know whether they have a good reason beyond just policy differences with their boss.” The basis for the Congress to investigate the conduct of Executive Branch appointees is not apparent to me. Think about what that process would look like. Such “investigations” could not be held in public so we would have members of the White House senior staff and possibly Cabinet officers testifying in secret Star Chamber-like proceedings that would inevitably resemble the days of Joe McCarthy. The fruits of the Trump presidency.

Jennings goes on to address the formal ways the Constitution provides for addressing problems with the president:

The founding fathers provided three tools to stop a runaway presidency — elections, impeachment, and invoking the 25th amendment. The Times op-ed writer admits that no one in the Trump administration “wanted to precipitate a constitutional crisis” by invoking the 25th Amendment, which allows for the removal of a president. This tells me that the writer’s concerns aren’t widely held enough to actually rally a constitutionally allowable coup against the President.

That leaves impeachment, which I suspect House Democrats will pursue come January if they take over the House of Representatives via elections in November. Strangely, Democratic leaders must not believe impeachment to be a winning message, as they continuously try to tamp down talk of it on the campaign trail, despite the desire of their base to toss Trump in the Potomac River. [emphasis added]

This is all well and good but fails on several grounds. First, the decision of staff, or whomever was involved, not to seek 25th Amendment relief does not logically support the assertion that the writer’s concerns weren’t widely held. That argument is similar to the position often espoused by KellyAnne Conway that since Trump won the election, no one cares that he lied about disclosing his tax returns. Second, citing the checks and balances is fine but it’s grossly hypocritical, and worse, to suggest at this stage that the Republican-controlled Congress is going to lift a finger to corral the president.

Jennings closes with a clearly political message.

The writer would do well to view the situation through the prism of an average, middle-American voter who selected Trump less than two years ago. That person is likely to believe that the economy is humming, that optimism is rising, that the President is appointing good judges, and that even the Congress is operating efficiently in what is supposedly a chaotic environment.

There are better ways to handle this beyond signaling that elections and our constitution have lost their usefulness as the means to enact change. Perhaps allowing an election to pass, so that actual voters can consider the facts and render a judgment, is more prudent than circumventing the established constitutional order that has served our republic well.

I suggest that the op-ed author viewed the situation from a greater awareness than worrying about what Trump’s political base may think, especially considering the evidence that many of them don’t think at all. It is far better to think about this issue apart from politics. The “established constitutional order” is hardly “served our republic well” by any reasonable standard. When the substance of the op-ed is combined with other known evidence, not least the revelations in Bob Woodward’s forthcoming book, Fear, it may yet be true that the anonymous author of the op-ed will indeed be regarded as a hero. The election that Jennings prefers as the arbiter of Trump’s performance is drawing close and it will tell us much on that question.

Footnote: I just heard another pundit on CNN saying Trump was “duly elected” and therefore the op-ed author is on shaky ground criticizing him. I repeat: media people should stop saying “Trump was duly elected.” There are outstanding legitimate concerns about the “duly” part of that story that are under active federal investigation. The press has no business just writing such issues off in their discussion of issues affecting the administration.