Author Archives: shiningseausa

Impeaching a President

A 1974 Congressional staff memorandum, entitled Report by the Staff of the Impeachment Inquiry, has resurfaced. The Report was prepared in connection with the potential impeachment of Richard Nixon. Hillary Clinton was a young attorney hired to help with the work, though her name does not appear on the list of contributors on the author page. The analysis element of the Report runs only 26 pages, but contains a compelling and unique assessment, given the circumstances of its creation, of the appropriate criteria for impeachment proceedings by the House of Representatives. The Republican enablers of Donald Trump notwithstanding, the Report is consistent with contemporary analyses of the reasons for and essential elements of impeachment, as intended by the framers, as well as the considerations that are not required criteria for impeachment under the Constitution.

The remaining pages of the Report in two appendices summarize the proceedings of the Constitutional Convention of 1787 regarding impeachment and various American impeachment cases going back to 1797, most of which relate to federal judges. As a reminder, impeachment by the House of Representatives is in the nature of a political indictment; it is a set of accusations. The trial of articles of impeachment is conducted by the Senate. Conviction requires a vote of two-thirds of the Senators present.

I will spare you the intricate legal details and summarize the key points. If you want to read the memo itself, it can be found at https://bit.ly/2lPNB6p

The Constitution states that impeachment may be brought for “Treason, Bribery, or other high Crimes and Misdemeanors,” a sequence of words that historically referred to “offenses … against the system of government.” Report at 5. Through several centuries, impeachment was determined to refer to “negligent discharge of duties and improprieties in office,” “abuse of official power or trust,” and “corruption in office.” Report at 6-7. Most significantly, while the commission of crimes in office may be included in an impeachment charge, violations of common law or criminal law are not prerequisites. Impeachment was intended as a broad remedial regime for “executive abuse and usurpation of power.” Report at 8.

The Report makes clear that violations of Constitutional mandates, such as the prohibition of emoluments from foreign powers are proper subjects for impeachment. Report at 13. And, in a discussion with direct implications for a current issue swirling around Donald Trump, the Report notes that Convention delegate George Mason stated that the use of the presidential pardon power to “pardon crimes which were advised by himself” or “to stop inquiry and prevent detection” are proper subjects of impeachment. Report at 13.

Of similar import in relation to Trump’s appointment of grifters to the Cabinet, the Report at 15 makes clear that the President may be impeached if he allows executive officers appointed by him or under his supervision to commit high crimes and misdemeanors or “neglects to superintend their conduct.”

It is worth repeating that impeachment does not require, though it certainly permits, allegations of conduct that would violate the criminal code.

Much more common in the articles are allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions. Recitals that a judge has brought his court or the judicial system into disrepute are commonplace. In the impeachment of President Johnson, nine of the articles allege that he acted “unmindful of the high duties of his office and of his oath of office,” and several specifically refer to his constitutional duty to take care that the laws be faithfully executed…. Impeachment is “intended to reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office. [Report at 21]

Finally, in its detailed rejection of the argument that an indictable crime must be alleged in an impeachment, the Report states that,

Unlike a criminal case, the, cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.

This understanding of impeachment bears directly on the conduct of Donald Trump in ways too numerous to mention in a one blog post. It is clear, however, that the Report provides a solid legal foundation for impeaching Trump if the Democrats controlling the House of Representatives have sufficient determination to use the tools available to fight the criminality and abuse of office that has characterized Trump’s conduct of the presidency since his inauguration.

The principal arguments against impeachment appear to be two: (1) political unpopularity — the people won’t approve of trying to remove Trump with the election just about a year away; and (2) the Senate will never convict because the Republican majority will never abandon Trump no matter what the evidence shows.

I doubt that the first reason is true except as to Trump’s loyal base who apparently will support him no matter what he does. But all available evidence points to the reality that the anti-Trump segment of the population outnumbers the Trumpers by a significant margin. There is no apparent reason for the House to concern itself with the Trumper sentiment that will never turn against Trump.

As to the second factor, given Republican intransigence, the smart move is to conduct a very slow impeachment process. Present the extensive evidence slowly in hearings throughout the next year but do not take a vote in the House and thus deny the Senate the chance to “exonerate” Trump following a show trial before the 2020 election.

 

 

Join the We the People March – Sept. 21

I know, I know. A whole lot of marching going on. This is just the beginning, I suspect, as massive waves of people afraid for the future for themselves, their children and grandchildren take to the streets to send a message to the politicians. On September 21, the We the People March will take off in Washington DC with “solidarity” marches around the country and in some other countries. A solidarity march will kick off from Columbus Circle in New York City at noon on Saturday. I will be there to photograph it, participate in it and write about it.

My wife and I have participated in several marches in both Washington DC and now in New York City. They are not easy on the feet, but they’re good for the head and the heart. If you participate, you are offering your time and energy to support a better future for everyone.

The Trump administration follows the “principle” that the Earth was “put here” to be exploited by humans however they choose and that unrestrained capitalism is the God-given right of people to take what they will from the planet without regard to the consequences for future generations. Those beliefs, along with a mindless refusal to believe in science, are behind the decisions to roll back regulations that protect the national water and air supply. Those beliefs are the foundation for the decision to allow drilling for oil in the Alaska National Wildlife Refuge, which is described this way on the Department of Interior website:

The Mission of the National Wildlife Refuge System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.

In Alaska, The U.S. Fish and Wildlife Service manages 16 national wildlife refuges that are part of this network, totaling 76,774,229 acres.  Alaska refuges are some of the nation’s last true wild places on earth, ranging in size from the 303,094 acres Izembek Refuge at the end of the Alaska Peninsula, to the 19.6 million-acre Arctic Refuge stretching from the Brooks Range to the Arctic Ocean.

The Trump administration looks at these open spaces and sees only an opportunity to dig for oil and minerals regardless of the impact. They just don’t care about preserving the planet for future generations. The only voices they hear are the ones looking for licenses to exploit the planet and make more money from its increasingly scarce natural resources.

One way to resist these forces of destruction is to take to the streets, send a message to the politicians and raise the awareness of other citizens who are either not paying attention or are “too busy” to be concerned about these things. They will eventually be forced to pay attention but then it may be too late. So, set aside a few hours of your Saturday to help make a statement about the kind of future world you demand for yourself and your heirs.

More information about the We the People March can be found at https://www.wethepeoplemarch2019.org/ Talk a little walk for your future.

Join the U.S. Climate Strike

I am reproducing here with minor edits a message from MoveOn on behalf of Isra Hirsi, a leader of the US Youth Climate Strike movement. The US Youth Climate Strike group has helped organize national climate strikes this year and has been pushing candidates to demand a climate debate. On Friday, September 20, hundreds of thousands across the U.S.—along with millions across the globe—will hold the national U.S. Climate Strike. 

Everyone has the right to a future in a sustainable world. But today, that future is under threat because of climate change caused by carbon pollution. And right now, communities are being devastated by the current impacts of the climate crisis, with communities of color and low-income communities bearing the biggest burden.

It’s time to take our destiny out of the hands of fossil fuel billionaires and the politicians who enable them. It’s time to take to the streets to demand the future that we deserve. 

Hundreds of Climate Strike actions are taking place across the country on Friday, September 20. Join the fight to address the climate crisis. RSVP here for an event near you.

If you’re in New York City, the Climate Strike in Manhattan details are:

New York City Climate Strike with Greta Thunberg
Start: Friday, September 20, 2019 12:00 PM
Foley Square
1 Federal Plaza
New York City, NY 10013
Host Contact Info: alexandria.villasenor@gmail.com

For other locations, click this link: https://bit.ly/2mbIZYn

My message to followers:

I have been writing about Trump’s repeated degradation of the environment which grows more dangerous with every passing day. It’s time to demonstrate that he and his Republican enablers have gone way too far and to send the message that there will be political consequences if the administration does not reverse course. This is a problem from which no one alive will be able to escape. It is bearing down on us with horrifying speed. Trump and his followers believe the Earth was put here for human exploitation and that exploitation can continue indefinitely without consequence. The overwhelming scientific consensus says otherwise. The very habitability of the planet is at stake. Join the US Youth Climate Strike on September 20 to demand immediate change in U.S. environmental policy.

The Larger Meaning of the Trump-Sharpiegate Fiasco

By now everyone in the allegedly civilized world is aware of Trump’s Sharpiegate episode. Trump, having falsely claimed that Hurricane Dorian was a threat to Alabama, was determined to “prove” that he was right and that everyone else, including all the relevant experts, saying otherwise were wrong. In classic Trump fashion he engaged in tweet storms and, apparently, ordered his chief of staff to order the National Oceanic and Atmospheric Administration to support his claims. And on and on and on, like the typical playground bully in junior high school.

Standing alone, this episode supports the questions being raised about Trump’s mental and emotional stability, although there really is nothing new here. His behavior in this situation is of a piece with numerous other aspects of his performance as president, including refusal to read briefing documents, inability to concentrate on detailed national security information and many other incidents that have been widely reported since Trump became the nominal president.

The real concern here is how these personality traits, that Trump is apparently helpless to control, may manifest in a true emergency situation. One example among many is an apparent military conflict at some overseas location where the facts may be unclear, decision time is short and the stakes are high. If Trump “decides” that he knows more than his senior military advisors and, for example, does not trust our allies to provide reliable intelligence, how might he react? Will his demonstrated propensity to threaten and bully lead him to order irresponsible, highly risky and irreversible military action? If so, the conduct of the senior White House advisors suggests they will simply do what they are told, regardless of the potential consequences to the country and the world. The incompetents and grifters that typify most of Trump’s appointments would rather keep his favor and their White House employment than do what responsible citizens should do when the “boss” is engaged in blatantly unlawful or irrational behavior that threatens existential harm to millions.

This is the stunning point of potential no return at which we have arrived. A man who was “made” by money provided by his father, with a history of graft and corruption, a demonstrated inability and unwillingness to educate himself and who is accustomed to just issuing orders and having them obeyed without hesitation or question is in charge of the nuclear arsenal of the most powerful military force in the world. This is not a child playing with firecrackers. It is a man-child playing with forces capable of triggering nuclear winter.

The solution, if there is one, is to initiate the process that could lead to the earliest possible termination of Trump’s presidency using the impeachment process established by the U.S. Constitution. I recognize the counterargument that if threatened with removal, Trump may declare some kind of fake national emergency, maybe even start a war, or, maybe just declare the Constitution suspended, essentially decreeing for himself the powers of the dictatorship that the Constitution was ratified to prevent.

There are likely other scenarios with similar consequences. It is, I suggest, pointless to speculate about Trump’s behavior. He may do the very same thing if the 2020 vote is held in the normal course and his effort to win a second term is rejected by the voters. There is, in other words, no escape from the implications of Trump’s mania. He is a danger to the country. Ignorant while claiming to be a genius. Delusional about his negotiating skills. Unable to distinguish truth from falsity, illusion from reality. There is no reason to think any of that will change. In fact, it is likely to worsen as the pressure of declining popularity into 2020 becomes more apparent to him.

The time for equivocation is past. It is time to act before it is too late.

 

Trump Wants Your Children & Grandchildren Dead

If you haven’t read a dystopian novel about the future of the world following a nuclear holocaust, an encounter with a large asteroid or, more realistically, the playing out of anti-science climate change denial, you should. Particularly the ones about environmental collapse. They’re more “fun” than actual science books, easier to absorb and sometimes have happy endings. They often focus on a small band of “survivors” who miraculously are able, through ingenuity and just good luck, to eke out a “living” sometimes in violent conflict with other bands in similar dire circumstances.

Someday soon these dystopian visions of possible futures will begin to show up in the History section of your local bookstore or online purchasing habit. These visions are coming to pass as I write. If you don’t believe this, read The Sixth Extinction, just for starters. It won the Pulitzer Prize for General Nonfiction in 2015. That’s nonfiction. Published before Trump was on the radar. It’s about the science. It’s about the impending disaster that, once it overtakes the planet, may be irreversible.

Trump, of course, is now on the radar, as are the Republican Party enablers who have chosen to support his agenda without regard for the consequences for humanity. Trump himself is, by his own admission, not a reader. Experience teaches us he is not a thinker either. He, of course, regards himself as a distinctly superior being, smarter than all the scientists who are close to unanimous in the belief that climate change is real and is the result, in large part, of human activity. The evidence that that view is overwhelming. Republicans wishing it were otherwise doesn’t change the reality. As Ben Franklin presciently said a long time ago: Experience keeps a dear school, but a fool will learn in no other.

Can so many people – the climate change deniers – be that uninformed or downright stupid? Of course, they can. They are people for whom evidence, especially if the least bit complicated or inconvenient, is not important. As proof, I refer you to the data, easily found online, of the number of people who believe that the earth is regularly visited by extra-terrestrial beings and the people who think the earth is flat, or believe that the moon landing was a faked Hollywood production, and on and on. Read any history book worthy of the name and you’ll see the story of mass belief in false ideas for which there was plenty of contradictory evidence or, often, simply no evidence to support the mass delusion. People believe what they believe.

So, to return to the subject at hand, Donald Trump heads the Executive Branch of the U.S. government and as a result has enormous power. He appoints, and his Republican majority in the Senate routinely confirms, unqualified true believers to head agencies like the Environmental Protection Agency and the Interior Department. Their intention, manifested regularly, is to undermine the environmental protections that have been woven into the national fabric beginning many decades ago at the behest of, among others, some Republican presidents. But those Republicans of yesteryear were quite different than those now serving Donald Trump.

You may have known people like these back in high school. Not high achievers, they were often in trouble, seemed determinedly uninterested in learning much new and were proudest of their record of disciplinary malfeasance. They were almost exclusively white males and often came from families with resources. Eventually they ended up in business and were successful in the sense that they made some money. Trump likes such people even if, as is almost always the case in his appointments, they don’t actually have a record of achievement in the fields in which they now exercise enormous influence. They inspired low expectations in their learning ability and were successful by adhering closely to chichés about the free market economy, American exceptionalism and its importance to the very essence of American society.

So, Trump continues on his merry way, undermining the Endangered Species Act (see New York Times editorial, Sunday, August 18, 2019), the Clean Power Plan and endless other environmental protections that have helped clear the air, purify the water and generally support the health and welfare of the people. Just like in high school, Trump and his lackeys are not really interested in understanding the implications of what they’re doing. They have a short-term view –to make it easy on business to exploit the planet so some people can make more money and retain their popularity among the UFO-sighting crowd.

One thing about those dystopian books I mentioned earlier – in most cases, money no longer means much. There is usually little or nothing to buy. In those stories, all portents of our future, we’re back to bartering and stealing and killing to survive. So much for short term thinking.

I did not exaggerate when I titled this post that Trump wants to kill your descendants. Look at it this way – if I point a loaded gun at you and squeeze the trigger, resulting in grievous bodily harm to you, the law will say that I “intended” to harm you because of the foreseeable outcome that my actions through a chain of causation (pointing and squeezing the trigger of a loaded gun) would have. Trump’s environmental policies, pursued in the face of overwhelming evidence of egregious harm to the planet that sustains us, are exactly like that loaded gun – pointed at all of us and likely to hit your children and grandchildren in the near future.

Many of us have become passive about these issues because we have been primed to believe in good outcomes. Most of our stories, no matter how gruesome in the telling, end with victory for the good guys. War movies, serial killer novels, you name it. We have been conditioned to believe that somehow the worst outcomes will be avoided, that the good will prevail over evil and all will be well in the end, perhaps after an intervening period of inconvenience but certainly not the end of the world as we know it.

That conditioning is hard to overcome and is a particularly strong force in the thinking and emotional makeup of people for whom one or two issues drive all of their motivation. I refer to evangelicals who are obsessed with abortion and who will support someone like Trump because they believe he is opposed to abortion. They will overlook every other aspect of Trump’s behavior to achieve the one goal they think is most important. How these people will react when the earth’s temperature rises, say 4 or 5 degrees, remains to be seen but history suggests they will die believing they did the right thing.  The same is true for those Americans for whom keeping immigrants out of the United States is the single most important national policy. They may strangle on the poisoned air and water in the years to come, certainly their children will, but, by God, America will have been preserved for white people and thus they will feel vindicated and victorious even as they perish in massive numbers.

The conditioning we all have been subjected to makes it hard to accept that the end of the earth as we know it may be imminent. Not tomorrow, but soon. In the lifetimes of your children and grandchildren who are alive today. Reality is hard to accept when alternative stories of victory over evil in the end are so ubiquitous and so satisfying. But those are just stories. Reality is quite different. Sure, we defeated Germany in World War II but millions died in the concentration camps. To avoid the massive casualties predicted for an invasion of the Japanese homeland, we dropped the first two atomic bombs on civilian populations of two relatively small towns. The plan worked but likely hundreds of thousands suffered and died. So, victory has its price. Always.

Trump’s ignorance and the indifference of his enablers represent the greatest threat to humanity in possibly centuries. The United States is generally recognized as the most powerful and successful economy and society in the world by many standards. Because of that, its impact on the world is magnified. And it has elected leadership that has a singular vision with only one possible outcome.

After much indecision, I have come to the conclusion that the danger to the country and the world from Trump’s continuing as president is simply too great. He should be removed from office as quickly as possible. I understand all the political arguments, that the Republicans control the Senate and will never vote to remove him no matter what the evidence shows, but part of the process of rebuilding the American society requires that all the evidence be marshaled and shown to the public and the world. Even if the effort fails, it will help drive the voting public to overcome its conditioning and take action in the 2020 election to rid the country of this foul curse.

 

Assault Weapons – How to Ban from Civilian Use

I was surprised to see a full page of this past Sunday’s New York Times (Front Section at 10) devoted to the proposition that efforts to ban the civilian ownership of assault weapons have failed because gun manufacturers and gun owners can, with considerable ease, change the technical features of rapid/automatic-fire assault weapons to escape whatever technical restrictions are enacted into law. They use “modification kits” that apparently can be purchased on the open market to evade the rules that are written in terms of technical specifications.

Perhaps borne from my ignorance of such weapons, my immediate reaction to this was: if it’s that easy to evade technical specifications, stop writing laws and regulations that deal with how the gun is made and instead write the rules in terms of the outcome sought to be prevented. By perhaps too simple an analogy, we don’t try to stop speeding in automobiles by writing rules about how cars are built; we write rules about how they are driven – that is, rules that address the outcome of how they are operated. The obvious example is the “speed limit.” You may have a vehicle capable of going 110 miles per hour, but there is nowhere that you can lawfully operate such a vehicle except on a race track.

If the problem with rapid/automatic-fire assault weapons is that they can fire rapidly/automatically with one squeeze of the trigger, then ban the possession of any weapon, however constructed or described, that is capable of firing, at a rate of X. The rate of X can be calculated based on evidence of the uses to which such weapons may be legitimately put. I’m not clear what those legitimate uses are but I’m sure the NRA will suggest some. That is a debate that can be had, but once it’s done, the outcome would seem to be relatively straightforward.

I realize that some elements of the hunting community will argue that, in order to pursue their “hobby,” they must be able to fire rapidly and repeatedly at their live targets. I don’t know why that would be true. If it is necessary to use what amounts to a mobile machine gun to kill a deer, well, then either you need to practice more or, in the end, you will simply be an unsuccessful hunter. Life is full of disappointments and that one seems reasonably bearable.

Ah, but the NRA says that failure to be able to, in effect, machine gun an animal may result in wounded animals who will suffer terribly from gunshot wounds unless and until they are tracked down and finished off. I have to admit that might happen, but it’s an easy choice between (1) the suffering of the odd deer or other target of hunters who are poor shots versus (2) the regular slaughter of school children at the hands of disaffected young men (almost always) bearing rapid/automatic fire weapons and large magazines of ammunition.

As I suggested at the outset, I am no expert on the types of weapons addressed in the NYT article and here, so I’m prepared to be schooled by someone who can explain why directing gun regulations at the output rather than the input end of the weaponry in question would not effectively solve the problem of “modification kits.” Waiting.