Monthly Archives: November 2020

Rebuttal to “The case against indicting Trump”

 

It’s fair to say that I mostly agree with positions taken by Randall D. Eliason, who is an adjunct faculty member and teaches white-collar criminal law at George Washington University Law School. Some of his WAPO articles are listed at https://wapo.st/3nKdvDc

Nevertheless, having addressed the subject of pardons/indictment of Donald Trump (https://bit.ly/3m32c8L),  I feel compelled to respond to this latest set of arguments as to why the U.S. government should let Trump and his family walk away unscathed from the wreckage he has wrought on the country and the treasure he has stolen. https://wapo.st/39fwOk1 So, I plunge ahead.

Eliason’s first argument is,

“Launching criminal investigations into an outgoing president would set a dangerous precedent. In this country, we don’t use the criminal justice system to punish political opponents.”

This is a problematic framing of the issue. The purpose of criminal actions would not be to “punish political opponents.” First, the issue is crimes committed in office, not “punishing political opponents” for being opponents or for pursuing policies with which we disagree. Second, it’s far from clear that Donald Trump will remain a “political opponent” once he is out of the presidency. There is speculation, of course, that he has tasted the drug of political power and, like every addict, will be unable to resist going back for more. But there are a multitude of obstacles to his being a serious political force once he is not commanding the news cycle all day and night every day and night. [For clarity, I am fully aware of my assumption that the media will cease amplifying every stupid and outrageous thing Trump says and does and that it will pay most of its attention to the actual government and what it is doing for the country].

Eliason anticipates my position to some degree, in noting that Trump’s supporters will see criminal investigation as an effort to silence Trump in anticipation of his next run for the presidency. No doubt that is true. The “minds” of politicians like Jim Jordan, Matt Gaetz, Ted Cruz, Marco Rubio and the Grim Reaper Mitch McConnell will explode with endless invective as occurred when Trump was impeached, and Republicans became hysterical even though they knew they would not admit relevant evidence or witnesses of the crimes Trump had committed in the Ukraine affair.

The question on this issue, I respectfully suggest, is not what Republican sycophants will say but whether what they say is worthy of consideration and continuing influence in the nation’s public affairs. Catering to them, I believe, will have the effect of validating Trump’s rhetoric in a way that is fundamentally inconsistent with the core of the country’s reason for existence, it’s “soul,” if you will.

Eliason also argues that many of Trump’s actions are not “actually criminal.” Fine, I have no objection to giving him a pass on those, no matter how offensive his views and behaviors may have been. There are still plenty of grounds for indictment, including the ones that the Democrats, for reasons I have never understood and railed against at the time, failed to bring in the impeachment articles. I refer the ten (minimum) instances of “obstruction of justice” established by the Mueller Investigation. No indictment was brought on those very strong cases only because Department of Justice policy (dubiously) forbad indictment of a sitting president. See https://bit.ly/3768GNI  https://bit.ly/372xCG3 https://bit.ly/35YyjB5  https://bit.ly/35WpnMg https://bit.ly/2UUurKR

There are likely many others, some of which will only be discovered when the documentary record of Trump’s White House is available for inspection (assuming, of course, that they don’t destroy the key documents before exiting). For example, there are the original notes of the call with Ukraine President Zelensky that we were told had been stored in a secure White House server and have never seen the light of day. The records related to the policy of caging kids at the southern border will also make interesting reading. Because Trump was known to destroy documents he created and given other propensities of White House aides to do whatever Trump demanded, there is a high risk that many documents have been destroyed and, if so, there is the question whether such conduct should go unpunished because Republicans don’t care about such niceties as federal record retention laws or the Hatch Act that was deliberately violated repeatedly by Trump’s staff.

Eliason addresses the obstruction of justice issues but resists criminal enforcement because “the Democratic House of Representatives did not even see fit to impeach the president over those alleged crimes.” To that, I retort, “so what?” That was a political decision, one that was terribly misguided in my view, but, in any case, it was not a creditable judgment that a criminal case could not be based on obstruction. I simply don’t understand Eliason’s conclusion that the “book appears largely closed on Trump’s obstruction.”

Eliason then turns to the “other punishments” of Trump’s misconduct, noting that “the country saw his behavior and booted him.” And Eliason is likely right that “Trump is destined to go down in history as an impeached, disgraced president.” Trump won’t care much about the judgment of history, however. He will spend his remaining years in luxury, denying the truth, interfering in political issues solely for attention and generally being disruptive to keep attention on himself.

That leads nicely into Eliason’s final argument, that “criminal investigations would guarantee that the next few years continue to be all about Trump.” My answer is that even if Trump is allowed to just walk away, he will do everything in his power to keep the media attention on himself. And he will be aided in this by the same collection of spineless, traitorous Republican politicians that have been too cowardly to stand up to him for the past four years.

So, while there are respectable arguments that the United States should just write Trump’s presidency off as a terrible mistake and focus entirely on repairing the damage, I continue to believe that such focus will be impossible and will in fact be continually impaired by Trump’s arrogant interference. If he is under criminal indictment, his attorneys will almost certainly advise him to shut his mouth, stop tweeting and behave responsibly for once in his life. He may resist. So be it. But any way you look at this, Trump is going to be around and will refuse to be ignored.

Finally, I observe that in his closing, Eliason acknowledges that grounds may well exist to pursue a former president. He mentions one who “sold our most sensitive intelligence to an enemy.” I remind us all that there were multiple instances in which Trump gave intelligence information to Russian diplomats and in which he destroyed notes or otherwise prevented record-keeping of conversations with leaders such as Vladimir Putin. In these types of cases, Eliason admits that “it would be unimaginable to say that president is immune from prosecution” While he thinks Trump’s record in this regard is not egregious enough, I contend we don’t know enough at this time to reach that conclusion. There are plenty of grounds for concern in the cases I have mentioned. This goes well beyond “norms” and other traditional practices that Trump savaged.

The solution to the problem of “appearances of weaponizing” the Department of Justice is not to do it. President Biden can make clear, and live by his word, that prosecutorial decisions will be made solely by prosecutors and that he will stand by whatever decisions they make. Republicans will scream like stuck pigs, of course, but we have heard more than enough of their false moralizing and false equivalencies for many lifetimes. The republic’s best move, then, in my opinion, is to put Trump on the legal defensive by aggressively pursuing well-founded, sharply focused criminal indictments for his worst crimes in office.

 

To Pardon or Not to Pardon – That Is the Question


Just over a year ago, I posted a piece entitled Going Along to Get Along. https://bit.ly/2UCmkTi The central theme was the criminal conduct of the Trump administration for which, I naively argued, “The time has come for a reckoning.” The impeachment proceeding was imminent. While I acknowledged the likelihood that the Republicans would continue to support Trump no matter what crimes he committed, I predicted that,

Impeachment, rarely used because it is so serious, is about holding to account a lawless regime that threatens to undermine the democratic republic that was created by the Constitution. If the case is properly made, the majority of Americans will support the action.

In that small regard, I supposed I was right. Trump was massively defeated in the 2020 election by more than 5 million votes and by the same number of Electoral College votes that Trump won by in 2016.

Yet, here we are, two weeks after Election Day and Trump continues to claim that “I WON THE ELECTION!” His legal team, “led” by Rudy Giuliani [I am not making this up], has filed and lost multiple lawsuits across the country. But those suits are only in states Trump lost. Apparently, Trump’s legal team has no quarrel with the vote counting in states he won. Many of the law firms involved have withdrawn their representation. All of the lawsuits have either been dismissed outright or rendered meaningless by either the complete absence of supporting evidence or narrowed so that even if validated, the ultimate election outcome will not be affected.

Trump had previously threatened that he would not recognize the election result if he lost and, in this one respect, he has kept his word. This has brought to the forefront the question whether, once Joe Biden is inaugurated, he should pardon Trump’s commission of federal crimes. At the risk of giving away the plot too soon, I think not. No pardon. Not ever. Here’s why.

I will use as my guidepost in this argument a provocative think-piece published on Nov. 17 by Michael Conway, former counsel to the  U.S. House Judiciary Committee, entitled “Why Biden Should Pardon Trump – and We Democrats Should Want Him To.” https://nbcnews.to/3lB4NGN Mr. Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Nixon in 1974. He is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. His views are seriously presented and worthy of consideration.

The rationale offered by Mr. Conway is simply that a pardon for Trump’s multiple federal crimes is necessary if the nation is to heal from the four years of division, fear-mongering, racism, misogyny, hatred and other despicable qualities exemplified by the Trump administration and its enablers and supporters.

That is a heavy load for a pardon to carry, especially considering that, as Mr. Conway rightly recognizes, a presidential pardon would give Trump no legal protection from state crimes provable on the same facts. Conway’s argument also acknowledges that Trump is undeserving:

Trump would, of course, be one of the least deserving recipients of a federal pardon in history. His pardon could not be justified based on his innocence or his contrition because Trump is not contrite; to the contrary, he is currently endangering our democratic processes by relentlessly undermining the legitimacy of Biden’s election and thwarting a peaceful transition.

That said, the argument for a Biden pardon is based on several distinct ideas:

  • A pardon necessarily indicates an admission of guilt;
  • Exposure for prosecution under state law would continue;
  • State prosecutions would not be “laid at Biden’s doorstep;”
  • Biden can show he’s better than Trump by declining to do what Trump tried to do: use his administration to punish political adversaries [“lock her up!”]
  • American democracy would be undermined if we accept the prosecution of political opponents;
  • Declining to prosecute Trump will assuage some of the anger of Trump’s supporters who, however wrongly, believe he was cheated out of a second term;
  • Pardoning Trump will help “heal the nation” and prevent an “ongoing cycle of retribution” as political control inevitably cycles;
  • Precedent exists in President Ford’s pardon of Nixon;
  • Prosecuting Trump would enhance his martyr status among followers, add to partisanship and could “even lead to civil unrest.”

That is as strong an argument for a pardon as I can imagine. Here’s why I think it’s wrong.

  • The admission of guilt would be “by operation of law,” but Trump would continue to argue that he was unjustly punished in various ways, especially in light of (2) under which he would continue to be exposed to state prosecutions, especially in New York;
  • Avoiding the “onus” of prosecution for Biden is of low value in the scheme of things, considering the scale and gravity of Trump’s crimes; protecting the incoming president from responsibility for enforcing the law is not a good reason to pardon;
  • We already know to a certainty that “Biden is better than Trump” as a moral force and as an empathetic leader;
  • Avoiding further blows to democratic institutions is a serious point, but democracy has already been severely undermined by Trump’s conduct, as well as that of the Republicans who enabled him;
  • Protecting Trump from federal prosecution is unlikely to assuage the anger of his most ardent followers who, we have learned to our everlasting sorrow, are totally disconnected from normal emotional responses to truth/facts/reality; assuaging their “feelings” is a fool’s errand – it just won’t work;
  • True that there is precedent but for many the Nixon pardon remains, after all these years, a very sore spot indeed; there is little juice behind the precedent argument;
  • In sacrificing the “healing” opportunity, we likely do increase the risk of more partisanship and the possibility of “civil unrest,” but those risks will exist even in the face of a federal pardon if, for example, New York prosecutes Trump for state crimes;

Moreover, pardoning Trump does not achieve the intended goal of peace with the Trump family writ large. There is likely evidence, known or to be uncovered after January 20, that members of the immediate family are guilty of multiple crimes as well, including conspiracy, obstruction of justice, destruction of federal property/records, money laundering and others perhaps even worse. Trump and his followers are not going to take well to facing such charges even if the capo is pardoned.

Finally, pardoning Trump would send the signal that the more crimes you commit and the more outrageously you behave, the better your chance of a pardon. American democracy has been shaken to the core by the four years of Trump’s mal-administration. This outcome of a pardon would tell the next unprincipled demagogue that “anything goes,” because the worse you are, the greater the likelihood you’ll walk free and clear with the loot you have acquired.

I readily confess that some of my thinking about this is driven by the belief, reluctantly reached, that Trump’s acolytes among the general population (he received more than 73 million votes at last count) are not going to be satisfied regarding Trump’s treatment, regardless of the generosity accorded him, They may be forced “underground” again, where, we have learned, they subsisted and persisted all the time many of us thought we had entered the post-racial world heralded by the election (twice) of Barack Obama. But they won’t be “gone;” they won’t likely experience some profound awakening of empathy and generosity toward others; Whatever the “solution” for those people is, I am constrained to believe that a pardon of Donald Trump is simply not relevant to the factors that motivate them.

In the end, perhaps, it can be concluded that I am more a “law and order” person than Trump’s most ardent fans. I believe in the principle that a properly functioning society needs a “just system of justice” that includes the goal of deterring the highest forms of white color crime, the types of crimes committed most egregiously, and often in the open, by Trump and his family and friends. Accountability is essential to prevent demagogues from becoming the norm of our political life. One important lesson from the Trump ascendancy in American politics is that our frequently sneering disrespect for “banana republics” could very readily become an apt description of the United States if we do not insist on full accountability from our leaders.

The harshest lesson, I think, is that we are not really who we thought we were. American aspirations and reality do not mesh as we had believed. That does not mean, however, that we should reject our aspirations. On the contrary, and as Joe Biden’s election has reminded us, we can and must continue to aspire to a higher calling for our country. We have the choice to make: despair that we have fallen short or renew our commitment to making a better and more just society for all who live here. Pardoning Donald Trump will not help us do better.

This position does not mean that every last drop of retribution must be exacted. The pandemic must be the top priority. Restoration of relations with allies is also critical to our national security. And, obviously, I think, action to aggressively address climate change is essential to our survival as a functioning species. Trump and his family can stew in the uncertainty of their ultimate fate until it is appropriate to take up their crimes, a day that will come all the sooner if Trump continues his insistence that he will hold office against the will of the people, as expressed in the 2020 election. If he wants to be drug physically from the White House, that can be arranged, in which case the day of reckoning will come even sooner. That choice is, to a degree, his to make. His family should recognize that truth, at least, and urge him to stand down. Either way, he must go.

 

Joy in the Land

I will not search for words to memorialize this extraordinary day in the life of the country. Others with greater gifts have done and will do that quite well without my meager words.

Shortly after the word came down that the election had, at long last, been called in favor of Biden-Harris, my wife and I ventured out to Columbus Circle, a few blocks from our New York City apartment. We had seen TV coverage indicating people were gathering there in celebration. Little did we know that the gathering was to last most of the day and that thousands of New Yorkers were absolutely beside themselves with excitement that Donald Trump was, at long last, going to be gone. We took a few photos. Here are some of them:

One of the highlights was a group of singers, decked out in bright costumes and led by a man with “Songs in the key of F*You” on his shirt. They sang and danced a bit. By way of example only, the lyrics to the tune of Hello Dolly went like this:

Well, goodbye, Donny. No more lies, Donny.

We can’t wait to send you back where you belong!

It gets a little raw after that, so I’ll spare you the rest. Here they are:

After enjoying the jubilant scene for a while, we walked along Central Park South to 5th Avenue, thinking we would visit the Trump Tower. Many cars and even a bus went by with horns blaring and people leaning out the windows pumping fists in the air.

We discovered that the NYPD had blocked off access to the Trump Tower from blocks away. The streets were deserted.

We could find no reasonable path to our destination and stopped on West 56th for an outdoor lunch, then returned to Columbus Circle. There, we encountered the tail end of a spontaneous march along Central Park South. These photos capture that event.

The NYPD was obviously nervous as it had a huge presence in the immediate area, including a caravan of vehicles that included one of those ominous black vans with no windows (you may have seen video of protesters being pulled off the streets into such vehicles by “police” with no visible identification) though there was not the slightest hint of anger or distress in the crowd. It was a joyous, happy scene of exhilaration in every respect.

We continued to watch the unfolding scene for a while before returning home:

And so, with a final salute to the Trump International Hotel:

we returned to our apartment to await the much anticipated (only four years) speeches of Kamala Harris and Joe Biden. We were not disappointed. Their words were inspiring, as was the appearance of their families, normal and happy people committed to supporting a team that faces enormous obstacles to success but whose commitment to serving the American people cannot be questioned by anyone with a rational mind.

At long last, the beginning of the end of the catastrophic Trump presidency is at hand.

Why Americans Are Dying By the Thousands Under Trump’s Leadership

Here are a few excerpts from WAPO regarding the federal response to the pandemic as we head into Election Day. https://wapo.st/3oJDI69 They speak for themselves.

“President Trump’s repeated assertions the United States is “rounding the turn” on the novel coronavirus have increasingly alarmed the government’s top health experts, who say the country is heading into a long and potentially deadly winter with an unprepared government unwilling to make tough choices.”

“Anthony S. Fauci, the country’s leading infectious-disease expert, said: … “All the stars are aligned in the wrong place as you go into the fall and winter season, with people congregating at home indoors. You could not possibly be positioned more poorly.”

“Fauci … said the country could surpass 100,000 new coronavirus cases a day and predicted rising deaths in the coming weeks. He spoke as the nation set a new daily record Friday with more than 98,000 cases. As hospitalizations increase, deaths are also ticking up, with more than 1,000 reported Wednesday and Thursday, bringing the total to more than 230,000 since the start of the pandemic….”

“Trump has rallied in states and cities experiencing record surges in infections and hospitalizations in a last-ditch effort to convince voters he has successfully managed the pandemic. He has held maskless rallies with thousands of supporters, often in violation of local health mandates. Even as new infections climb in 42 states, Trump has downplayed the virus or mocked those who take it seriously.”

“… he baselessly said that U.S. doctors record more deaths from covid-19, the disease the coronavirus causes, than other nations because they get more money.”

“By contrast, former vice president Joe Biden and Sen. Kamala D. Harris have consistently worn masks in public, and have held socially distanced events.”

Fauci … described a disjointed response as cases surge. Several current and former senior administration officials said the White House is almost entirely focused on a vaccine, even though experts warn it is unlikely to be a silver bullet that ends the pandemic immediately since it will take months under the best of circumstances to inoculate tens of millions of people to achieve herd immunity.”

“Fauci said … he has not spoken to Trump since early October…. He also lamented that Scott Atlas, a neuroradiologist and Trump’s favored pandemic adviser, who advocates letting the virus spread among young healthy people and reopening the country without restrictions, is the only medical adviser the president regularly meets with. “I have real problems with that guy,” Fauci said of Atlas. “He’s a smart guy who’s talking about things that I believe he doesn’t have any real insight or knowledge or experience in. He keeps talking about things that when you dissect it out and parse it out, it doesn’t make any sense.”

[Judd Deere, a White House spokesman, attacked Fauci for speaking his mind, accusing him of being a member of the Washington Swamp and repeating Trump’s talking points that the president “always put the well-being of the American people first.” Believe what you will.]

“Some White House advisers … complain [Fauci] is too focused on his personal reputation and is “not on the team,” said one senior administration official who spoke on the condition of anonymity because he was not authorized to comment. The doctor has become loathed among many Trump supporters, and Fauci has told others that he has experienced a surge in harassment and threats.”

[See https://wapo.st/3kUAOJK for a list of the 184 times Trump has downplayed the pandemic threat, a reality he confessed to on tape in the Woodward interviews].

“Several senior administration officials and outside advisers described a White House overwhelmed by the pandemic, with a feeling of helplessness over the inability to curb its spread without also throttling the economy or damaging the president’s reelection chances.”

“… the campaign trail message that life is returning to normal underscores how little the president and White House have focused on the pandemic beyond pushing for development and approvals of vaccines and treatments. With the clearance of a vaccine unlikely until year’s end, that raises questions about what happens after Election Day, during what is projected to be the worst stretch yet of the pandemic. The Trump administration will be in charge of managing the pandemic until at least Jan. 20, no matter who wins.”

“Trump’s former Food and Drug Administration commissioner, Scott Gottlieb said, “If we don’t plan now, we’ll lose the opportunity to prioritize [school]opening what should be most important to us, just as we lost that chance in the fall because we didn’t plan appropriately this summer.”

“And one of the ways to say the outbreak is over is [to say] it’s really irrelevant because it doesn’t make any difference. All you need to do is prevent people from dying and protect people in places like the nursing homes,” Fauci said. “And because of that, Debbie [Birx] almost never ever sees the president anymore. The only medical person who sees the president on a regular basis is Scott Atlas. It’s certainly not Debbie Birx.”

“Fauci said that many people who catch the virus recover “virologically” but will have chronic health problems. “The idea of this false narrative that if you don’t die, everything is hunky dory is just not the case,” he said. “But to say, ‘Let people get infected, it doesn’t matter, just make sure people don’t die’ — to me as a person who’s been practicing medicine for 50 years, it doesn’t make any sense at all.”

“A similar assessment was offered by Tom Bossert, the former homeland security adviser in the Trump administration. “It sounds alluring,” Bossert said. “It sounds so seductive. It’s not possible. Math makes it irresponsible to even try and say it.”

Trump’s Presidency in Memes — Final??

As we approach the, hopefully, final hours of Trump’s catastrophic presidency, I am submitting a final round of memes collected from Twitter, Facebook and … wherever. If there is any justice in this country, this will be the last time it’s necessary to do this, although his electoral defeat may not entirely end his presidency. More about that another time soon. Meanwhile, back in the looney bin known as the Trump presidency: