Category Archives: Commentary

Have Progressives Been Unfair to Donald Trump?

On Facebook and other places I have seen many “conservatives” argue that “progressives,” or “ libtards” or “haters” more pejoratively, have been unfair to the “duly elected” president from some unspecified time before he was elected to the present. The argument, they seem to offer, is that Trump is president of all the people and thus deserves everyone’s 100% devotion. They believe Trump is acting in good faith, doing his best in the face of massive resistance at every turn and, as Trump himself proclaims on a daily, sometimes hourly basis, is being treated in a fundamentally unfair way.

I have reflected on this at some length and done some research which, in the interest of comity and intellectual honesty, I present herewith. Let’s begin at the beginning — with people who know Trump best.

On March 3, 2016, Mitt Romney spoke about Trump, calling his promises worthless, labeling him a “fraud.” https://nyti.ms/2JkGFH6 The speech listed a long list of failed business ventures bearing Trump’s name. He noted that on foreign policy Trump was “very not smart.” Dishonesty is Trump’s hallmark, Romney explained. Many Republicans were unhappy with Romney’s comments, but Senator John McCain, a fixture in the classical conservative wing of the Republican Party, agreed with Romney’s descriptions of Trump.

Senator Ted Cruz referred to Trump as a “bully” and “sniveling coward” who was “consistently disgraceful.” And,

“This man is a pathological liar. He doesn’t know the difference between truth and lies. He lies practically every word that comes out of his mouth, and in a pattern that I think is straight out of a psychology text book, his response is to accuse everybody else of lying,” …. “The man cannot tell the truth, but he combines it with being a narcissist—a narcissist at a level I don’t think this country’s ever seen.”

https://bit.ly/3bsGoO8

Senator Lindsey Graham said the following about Trump:

“I don’t think he has the temperament or judgment to be commander in chief.”

I just don’t think Donald is a reliable conservative Republican and quite frankly, he lost me when he said my friend John McCain was a loser because he was captured as a POW. He lost me when he accused George W. Bush of lying to the American people about the Iraq War, and he thinks Putin’s a good guy, so, I just can’t go there.

I’ve just got a hard time supporting somebody who claims that Ted Cruz’s dad was associated with Lee Harvey Oswald and involved in the Kennedy assassination. I’ve got a hard time supporting somebody for president who spent thousands of dollars of their own money trying to find out if President Obama was born in Kenya versus Hawaii. I think that’s crazy.

I just believe his temperament and judgment is not sufficient to be commander in chief of the finest fighting force in the world. I think his foreign policy is gibberish.

… embracing Donald Trump is embracing demographic death.

[https://bit.ly/2UzpKp6]

“I’m not going to try to get into the mind of Donald Trump because I don’t think there’s a whole lot of space there. I think he’s a kook. I think he’s crazy. I think he’s unfit for office.”   [https://bit.ly/2UMttA6]

Trump lied about giving up his active interests in his business empire.  He lied about disclosing his tax returns.

Then, Trump appointed his cabinet of incompetents and grifters, including Scott Pruitt, Tom Price and Ryan Zinke who, when they weren’t enacting anti-health insurance, anti-environmental protection and similar policies, were basically run out of town for corruption in office.

When Neo-Nazis descended on Charlottesville, VA, leading to the murder of a counter-protester, Trump declared there were “very fine people on both sides.” He said other things, to be sure, but overall the tenor of his comments about the white supremacists bearing swastikas & other Nazi paraphernalia was to equate their cause as equal to those protesting their presence. Trump’s history of equivocation and making false equivalencies is well-established on the public record. This has not stopped Trump from making outrageous and often outright false statements that are recorded on videos, then simply denying he made the statements thereafter.

He mocked a disabled reporter at a rally, urged violence against protesters, refused to read intelligence briefings, insulted U.S. intelligence authorities, insulted long-standing allies around the world, including shoving a world leader out of the way so he could stand in front for a photo opportunity.

Trump relishes giving demeaning nicknames to his political opponents, gets most of his “information” from the Fox News propaganda channel, demands unending praise from everyone around him at all times and constantly brags about his claimed achievements which are always the “greatest of any administration in history.”

All of that is on the public record and undeniable. The Washington Post Fact Checker has determined that Trump does hold one record: the most false and/or misleading statements in the history of American politics. This brings us to the current moment of national peril, the scenario that Trump’s critics have always feared the most: an existential crisis that Trump would prove incompetent to handle.

Again, the record on this is clear and indisputable by anyone able to face reality. Trump had reason to know in January that the coronavirus threatened the world with a death-dealing pandemic. He made multiple public statements downplaying the threat, boasting that he had the situation under control. He was supported in this by some of his sycophantic cabinet members who have learned they dare not criticize him if they want to keep their jobs. Trump essential dismissed the coronavirus threat, saying the cases would be down to zero in no time.

And, here we are. The number of cases has skyrocketed. The virus is present in every state. The death toll mounts hourly and is now in the thousands. Trump continues to publicly contradict the advice and public statements of the best medical advisors in the world. His penchant to say whatever he thinks will play well in the media has led him to make threats such as quarantining the entire states of New York, New Jersey and Connecticut. In a rare victory for reason, his staff apparently persuaded him that a “strong travel advisory” would be the better approach, but his swing-from-the-hip statements caused alarm in the region.

Trump’s equivocation has other consequences. His sway over right-wing politicians is so strong now that his resistance to recognizing the truth about the coronavirus has infected many of them and led to rejection of sound medical advice that might limit the spread of the virus. Unnecessary deaths will inevitably result.

Without belaboring this further, the question I posed at the outset can have only one answer: Trump has not been treated unfairly. He and he alone is responsible for his standing as the most dishonest and incompetent president in the history of the United States. I have only touched on a few of the lowlights of his mal-administration of the public trust but these are sufficient to show that Trump is fully deserving of every criticism leveled at him. His reputation for lying, for bullying, for self-glorification and all the rest is both well-earned and documented for all time on the public record. It will never be erased and nothing about his current conduct indicates he has the capacity to resurrect a functioning leadership role for himself. His legacy is established. It is time to remove him from office before it is too late.

Compartmentalized Thinking Can Kill

Readers of this blog know that I am an enthusiastic supporter of the American Civil Liberties Union. ACLU primarily uses the legal system to protect everyone’s rights, sometimes in unpopular causes. ACLU recognizes the difficult truth that if one person’s rights can be taken away, then all peoples’ rights can be taken.

Compartmentalized thinking is one of the ways we are able to look away from wrongs – it’s “them,” not “us;” “I can’t afford to get involved so I won’t think about it;” and “maybe I’ll engage later/contribute later/pay attention later, but right now I have other important things on my mind.” And many other examples. Such thinking also enables our ability to block out unpleasant thoughts and to resist the inexorable logic of exponential growth.

Compartmentalized thinking also enables us to support abstract ideas that block our awareness of the interconnectedness of events and the forces that shape our society. I read a piece from ACLU that delivered this point with unexpected force today. https://bit.ly/2wz18oq

ACLU reports that “A group of over 450 public health experts signed a public letter today warning that widespread transmission of the Covid-19 coronavirus within the United States is “inevitable.” Their letter urges government decisionmakers to enact policies that will have the best chance of minimizing the effects of the virus: those based strictly on the best available scientific information, and those that are imposed in a fair and equitable fashion.”

Some will react to this with “uh oh, here they go again, worrying about peoples’ rights when we should be focused on survival.” That is, perhaps, an understandable response, but read on.

ACLU acknowledges that sometimes individual rights must yield to the “greater good.” However,

The public health experts remind us in their letter that there is a flip side to the limits on liberty …. Just as a disease cares little for our notions of individualism … neither does it care about other artifacts of our individualistic society, such as differences in wealth, status, ethnicity, or immigration status. If the authorities want to be effective in limiting the transmission of this virus, they will need to pay particular attention to the most vulnerable people in our society.

A disease does not care who has health insurance, for example. You may have the best insurance in the world, but if 30 million others who are part of your bio-mass are not getting tested or treated because they lack insurance, that will increase your risk. Similarly, if members of immigrant communities fear they’re going to fall into the hands of an ICE officer if they seek treatment, that is a public health problem for all of us. A disease does not care who is undocumented.

In their letter, the public health experts call for officials to work with insurance companies to make sure that lack of insurance and high costs do not become a barrier to testing and treatment. They call for health care facilities to be declared as “immigration enforcement-free zones” — a step that has been taken before during hurricanes and other emergencies….

The experts draw attention to the need to support minimum-wage workers and others who live on the economic margins, cannot telecommute, and cannot afford to lose their job. While an office worker who is starting to feel ill may be able to self-isolate, someone in a more precarious situation may calculate the different risks they face in their life and conclude their only option is to hide their condition and head to work. A disease does not care whose employers offer good sick leave.

Finally, “Political leaders need to scrupulously ensure that their public messages are accurate and guided by science. There is a sad history of responses to emergencies that are hindered by politics,” citing  China’s response to SARS as well as coronavirus and the Soviet government’s response to Chernobyl.

Finally, the experts echo some of the longstanding lessons of their field: Voluntary self-isolation measures are more likely to induce cooperation — and therefore be effective — than coercive measures. Mandatory restrictions such as quarantines and travel bans “can be effective only under specific circumstances” and “must be guided by science, with appropriate protection of the rights of those impacted.” Those rights include due process rights to appeal confinement and the right to legal counsel. While leaders in outbreaks can be tempted to impose draconian measures as a show of strength, the letter’s signers also remind us that a disease also does not care how tough a leader looks.

The record of the Trump administration, and the President’s repeated comments contradicting the advice of health experts, do not align well with ACLU’s insightful analysis. This has led to numerous mistakes in the government’s response to the coronavirus crisis. Everyone needs to recognize that just about everything is now connected to just about everything. If society now turns its back on the problems faced by the uninsured and others who are under enormous pressure to survive, we will all pay a dear price. We’re all in this together, like it or not.

Final Note:  Please consider making a contribution to the ACLU. It is fighting for each of us on multiple fronts and needs financial support to continue being an effective force for truth and justice for everyone.

 

The Price of Dishonesty: Coronavirus

The novel coronavirus is spreading around the globe at a remarkable pace. Mistakes have been made by leading health authorities regarding testing criteria, quality of test kits and in other ways that have delayed detection and facilitated the spread. Hopefully, all of those mistakes can be corrected relatively quickly and the lost ground made up. The news so far is not encouraging for a quick stoppage of the metastasizing disease.

Overarching in this sad story is the reality that the President of the United States is widely distrusted because of his record of relentless self-interested lying and distortion in a vast array of areas in order to perpetuate the mythology that he is the greatest president in history. Trump’s rule is to say whatever he wants to self-promote and never to admit error or apologize for demonstrable mistakes. He routinely and quite casually will say something on camera, then, faced with blowback, simply deny that he said it. He claims credit for things his administration did not do and denies responsibility, usually blaming Barack Obama, for errors he has committed.

The consequence of this reputation for dishonesty and untrustworthiness is, predictably, when a genuine crisis comes along, Trump’s reputation infects everything he does and bleeds over into the actions of administration people tasked with actually combatting the crisis. Plainly, coronavirus is such a crisis. Trump not only regularly contradicts statements of experts in the field, he insists at every turn that there really is little to worry about because he’s doing such a great job. He has even suggested that people with symptoms that could be coronavirus should report for work as usual, despite advice to the contrary from experts. Trump’s biggest fear seems to be the effect of the health emergency on his re-election hopes rather than the welfare of the tens of thousands of sick people, some of whom are going to die as many already have.

Fear of a pandemic is a real and powerful force that can easily cause people to act in self-defeating ways. Fear is spread by, among other things, distrust. One medical authority has observed that the government knew in December, 2019 that the coronavirus was going to arrive in the United States and did almost nothing to prepare. If Americans doubt the word of the authorities because they believe the president is influencing what they are being told, the fear can easily turn to panic.

That, then, is the ultimate price we may yet pay for the president’s lack of truthfulness and integrity. Those “chickens” are coming home to roost, raising questions about how much to believe in the advice being given by federal medical authorities. Based on a CNN Town Hall on the virus situation indicates that the government is still being disingenuous about the availability of test kits. Dr. Anthony Fauci says we need many millions of coronavirus tests but there is no current basis for believing that millions of tests will be available in the foreseeable future. As a result there will be no accurate evaluation of the mortality rate for the virus until a large number of tests have been completed, which may take several weeks.

There should be only one guiding principle behind the information being given to the public: truth and nothing but the truth. Many of the federal authorities involved in fighting the virus are people of unquestionable integrity but their authority will be quickly undermined if the impression arises, as it already has in some instances, that the politicians supporting Trump are tilting and filtering the information the public gets. The appointment of the Vice President to lead the U.S. response to the virus has only contributed to the impression that the administration is being less-than-candid with the public.

We already know that the virus was able to get a head start in China because, as usual, the government there did not want the news to get out and failed to act swiftly to isolate the disease. If the public in the United States comes to the conclusion that the federal government is playing that same game, we are in for really hard times.

The solution is to get the Vice President Pence out of the command-and-control position he occupies regarding the federal response and put a medically-qualified expert in charge of the counter-attack against the coronavirus. The sooner this is done, the sooner public trust and support for the necessary counter-measures will develop and be sustained.

Who Will Punish Trump Administration Crimes Against Humanity?

The Nazis did this. Now it’s us. The great and glorious United States of America. Separating families and, in violation of court orders, failing to properly keep track of them or take adequate steps to reunite them. When will it end? What effects will it have on the lives of those directly affected? How will they think of the United States when they grow up and are fully aware as adults of what was done to them?

I wrote about the issue of climate change and its relation to crimes against humanity in March 2017. See https://bit.ly/32a122e

The troublesome history of humanity’s efforts to come to grips with the worst conduct of which we are thus far capable is set out reasonably well and at length in Wikipedia at https://bit.ly/2T2wGdD The summary there states that crimes against humanity can occur in wartime or peacetime:

They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. War crimes, murder, massacres, dehumanization, genocide, ethnic cleansing, deportations,  unethical human experimentation, extrajudicial punishments, including summary executions, use of weapons of mass destruction, state terrorism or state sponsoring of terrorism, death squads, kidnappings and forced disappearances, use of child soldiers, unjust imprisonment, enslavement, torture, rape, political repression, racial discrimination, religious persecution and other human rights abuses may reach the threshold of crimes against humanity if they are part of a widespread or systematic practice. [Emphasis added]

I will not engage in legalistic analysis of all those terms. You can decide for yourself whether a reasonable person could think that separating children from parents at the U.S. border because the parents were illegally entering the United States fairly falls within the bolded terms above.

The inescapable facts are that punishments, in the form of loss of freedom, among others, are being meted out without meaningful judicial process in the name of the United States against children and that those children are being punished for the conduct of their parents. The parents are, of course, also being punished and because they are not U.S. citizens, their entitlement to many forms of legal protection is, in practice, limited or non-existent.

Your patriotic conservative Republican will argue that this situation is the fault of the parents who decided to bring their children into the United States knowing that doing so was illegal and might be met with severe consequences. Thus, their argument goes, the sins of the parents are rightfully visited upon the children; it’s their fault, not ours so who the hell cares what happens to them? If the parents obeyed the law, none of this would have happened. The point of the punitive action against the children is to deter future parents from seeking to enter the United States illegally (or any other way as it later turned out under increasingly stringent anti-immigration policies of the Trump administration). End of story.

Except it’s not the end of the story. It’s the beginning. If the government is going to forcibly separate children from their parents because the parents broke the immigration laws, a morally just society would, while engaging in self-praise for upholding the law, be certain that sufficient resources were committed to keep track of the separated children and to assure that, as soon as humanly possible, they were reunited with their parents. This, however, has not happened.

The Trump administration knows this and is indifferent to the problem it has created. Or, if you insist, indifferent to the problem that the illegal immigrant parents have created. In the end, it doesn’t matter who “created” the situation. The U.S. government took actions that separated the children, locked many of them in cages, failed to provide adequately for their physical and mental well-being, and then failed, and continues to fail, to re-connect many of the children with their parents. Trump, his chief immigration advisor Stephen Miller and all the rest of Trump’s “nothing but the best people” don’t give a damn about the harm they have caused.

This, I suggest, is the functional equivalent of a crime against humanity for which the individuals responsible for the execution of the policy should be held accountable. They should be arrested, tried, convicted and imprisoned for what they have done.

Let’s look closer. First, you should be aware that one of the earliest (July 2017) of the separated children has yet to be reunited with her mother some two and a half years later. This Washington Post article tells the story. https://wapo.st/2SHHiQh

The child is now nine years old and hasn’t seen her mother since the mother was deported to Guatemala. As reported,

The children have now spent enough time in the United States to narrate their stories of separation in fluent English. Their parents are back in Central America, watching sons and daughters grow up over grainy video calls….

Some days, Adelaida gets angry. When other kids in class talk about their mothers. When her aunt kisses her cousin Angel good night, but not her. María can see her daughter’s eyes getting big and glassy, her face turning red.

“I need you by my side,” Adelaida exclaims.

“I’m trying,” María responds. She hangs up and cries.

The government of the United States, led by Donald J. Trump, did this. No one else.

 The administration put out false information in 2018 about the number of separated children, claiming almost 3,000 when the real number was over 4,500, many of whom remain separated to this day.

Lawyers traversed Central America with only scraps of information: misspelled names and phone numbers no longer in use. Some parents have disappeared. Others have gone into hiding to avoid the threats they once tried to escape. The lawyers found Maria [Adelaida’s mother] in December.

Other separated parents — the ones initially recognized by the administration — have joined a class-action lawsuit filed by the ACLU. Some asked to be reunited with their children in the United States. A federal judge ruled in favor of 11 of them. Nine of them landed in Los Angeles last month. Twenty-nine others, aided by American lawyers, crossed the border last year. But María wasn’t a part of the ACLU lawsuit, or any other petition, because her case hadn’t been recorded.

This is a group who the government kept hidden from us, the court, Congress and the public,” said Lee Gelernt, an ACLU attorney. “And these children were even younger than the original group, hundreds just babies and toddlers.” ….

Once María was in custody, she said, an immigration agent approached. “He said, ‘I’m taking your daughter with me,’ and he took her arm. I started screaming. He wouldn’t say where she was going or for how long.” Adelaida started wailing. “I didn’t want to leave my mom,” she said. “When I was almost going to say goodbye, they took me, so I couldn’t.”

Patricia Reynoso, Adelaida’s aunt, tried to reason with the agent. She wasn’t sure why María was separated from Adelaida, but she was allowed to stay with her daughter.

“The agent looked at me and said, ‘I’m a father. I don’t want to be doing this, but it’s my job,’ ” Patricia said. [emphasis mine]

Just following orders. Where have we heard that before?

You can read the rest of the story in the Washington Post article cited above, if you have the stomach for it. Here is an example:

Officials from the U.S. Department of Health and Human Services, which facilitated the family separation policy, gave Patricia a pamphlet in Spanish on how to support Adelaida. It was called “How to Help My Child.”

“Spend time together as a family,” it suggested. “Make time for your family to eat together and play and take trips.”

The Trump-led government at work.

The American Bar Association reports that the Trump administration zero tolerance separation policy began in April 2018, subjecting illegal entrants to criminal prosecution. https://bit.ly/39MaFqq That time frame cannot be reconciled with what is reported in the above story from the Washington Post and elsewhere. See the Wikipedia report cited below in which it is reported that the child separation policy actually began a year before then-Attorney General Sessions announced it. And while Trump, by Executive Order, allegedly ended the separation policy, there is no procedure currently in place to reunite the thousands of families already separated.” It appears that no procedure to reunite the families was ever in place or perhaps even seriously considered by the administration. In 2018 statements, the ABA described the Trump administration policy as “inhumane and untenable” and “unnecessarily cruel action [that] violates basic standards of human decency.” [emphasis mine]

In June 2018, the then-Republican-controlled House of Representatives rejected passage of legislation that would have ended the separation-of families-policy.  A lawsuit against the policy was filed by the ACLU, resulting in a nationwide injunction temporarily stopping the separation of children from their parents at the border and ordered that all families already separated be reunited within 30 days, an order the Trump administration appears to have ignored. Other suits have been lodged by a coalition of 17 states, the American Immigration Council, and the Northwest Immigrant Rights Project. There may be others pending and no doubt others will be filed.

You may view photos of the children detailed in cages resembling a dog kennel at https://bit.ly/39Z7Fa6

The Trump administration’s failure to speak truthfully about its policy, combined with its utter indifference to the suffering of the separated families, speaks volumes about this administration’s attachment to American values. The daily, sometimes hourly, lying about its conduct of the nation’s business has spilled over into immigration policy. This is beyond incompetence – it is evidently deliberate:

Since June 2018, despite the official end of the separation policy, hundreds of additional children have been separated from their parents. In March 2019, the government reported that since that time, 245 children had been removed from their families, in some cases without clear documentation undertaken to track them in order to reunite them with their parents. The House Committee on Oversight and Reform reported in July 2019 that over 700 children have been separated from their parents after the policy’s official end. In July, it was reported that as many as five children per day were being separated, and by October, the total had reached 1,090.

In January 2019, the administration acknowledged that thousands more children may have been separated from their families than the previously reported figure of 2,737, with officials uncertain of the exact number. Investigation showed that the child separation policy had actually begun in the summer of 2017, prior to the zero tolerance policy announced in April 2018.

Federal officials said there were no plans to attempt to reunite these children because “it would destabilize the permanency of their existing home environment, and could be traumatic to the children.” In May 2019, the administration acknowledged that at least an additional 1,712 migrant children may have been separated from their parents even before the “zero tolerance” policy was implemented.

In June 2019, a group of attorneys … visited a Border Patrol center in Clint, Texas. The children told the lawyers that meals consisted of instant oatmeal, a cookie and sweetened drink for breakfast, instant noodles for lunch, and a heated frozen burrito and a cookie for dinner. They said they had not had a clean change of clothing or a bath for weeks. There were no adult caretakers, ten- and fourteen-year-old girls were taking care of the younger ones. A 14-year-old girl from Guatemala who had been holding two little girls in her lap told them: “I need comfort, too. I am bigger than they are, but I am a child, too.” [extensive footnotes omitted]

The Trump administration tried to deflect responsibility for its treatment of children at the border by claiming it was just following the policy adopted by the Obama administration. That claim is a lie. The Obama policy did not mass-separate children from parents. This Trump claim flies in the face of Trump’s on-going obsession with undoing everything Obama did. It is unimaginable Trump would have knowingly adopted an Obama policy – this claim is just another attempt to deflect attention from the venality and criminality of the Trump leadership.

Administration officials repeatedly lied in interviews, in testimony to Congress and in court filings about the child separation policy and practice. The Trump policy reflects a calculated indifference to the suffering created by the child separation policy throughout the entire period of its implementation:

Speaking on NPR in May 2018, White House Chief of Staff John F. Kelly described the policy as “a tough deterrent [and] a much faster turnaround on asylum seekers”. When questioned if it might be considered “cruel and heartless” to remove children from their mothers, Kelly replied, “I wouldn’t put it quite that way. The children will be taken care of—put into foster care or whatever.”

In June 2018, Attorney General Sessions said, “If people don’t want to be separated from their children, they should not bring them with them. We’ve got to get this message out. You’re not given immunity.” White House senior policy adviser Stephen Miller said: “It was a simple decision by the administration to have a zero tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law.” [footnotes omitted]

“Foster care or whatever.” Kelly’s words, but Donald Trump is ultimately responsible for this policy.

Children’s mental health has had a strong correlation with forced parent–child separation and parental loss which has led to potential traumatic events (PTEs). Research has found that “forced parent–child separation and parental loss are PTEs with adverse effects on child mental health and academic functioning” …. “emerging research has indicated that parental detention and deportation increase risk for mental health problems such as severe psychological distress, anxiety, and depression”.  Due to these mental stressors, many of these children have reported symptoms of post-traumatic stress disorder from traumatic parent separations….

A 2018 study looked at the impact of parent-child separation and child detention on the mental health and development of children. The author interviewed parents and children who had experienced separation and reported that the separation of the children from their parents together with a background of chronic and acute adversity has created a “perfect storm for attachment damage, toxic stress and trauma”. The author noted that a child under prolonged stress “may develop complex patterns of protective responses that can include hyperarousal—hypervigilance, agitation, flashbacks and emotional reactivity, or hypoarousal—dissociative responses, emotional numbing (self-harm may be used as a tool to ‘feel alive’), passive compliance and poor access to cognitive functioning”. The study’s findings also suggested that enforcement of immigration laws poses “serious health challenges and risks for lifelong mental illness in children”. [footnotes omitted]

The litany goes on … and on. The record is irrefutable. By any reasonable standard, the child separation policy, whatever its intent may have been or is now, represents abuse of human rights on a scale not seen in this country in many decades.

The policy and its implementation differ in substance from, say, the incarceration of Japanese-Americans during the hysteria following the Pearl Harbor attack. While those practices were also unjustifiable, they occurred in the presence of an unprecedented perceived threat to the United States from an armed adversary, not remotely comparable to the situation at the southern U.S. border.

The Office of the Inspector General (OIG) and the Government Accountability Office (GAO) both reported that DHS and HHS were unprepared to take on the extra responsibilities required by the zero-tolerance policy. https://bit.ly/2V8AP2x

The Trump administration knew or should have known this was true but chose to ignore it.

The recently concluded farce of an impeachment trial in the Senate makes clear that Trump will not be held accountable while he holds office. Therefore, the only way to hold Trump accountable is by rejecting his re-election effort. It is now up to the people at large to decide what kind of country we’re going to have. If re-elected, you can expect Trump, who already fancies himself a kind of monarch, to run rampant over the rights and interests not only of children at the border but of everyone.

Additional information about this subject can be found in an articles entitled “The Ethics of Separating Families at the Border,” in the Lawfare blog, https://bit.ly/39UDCjS and “Legal Considerations for Separating Families at the Border,” https://bit.ly/32nAVoE  See also “U.S. Continues to Separate Migrant Families Despite Rollback of Policy,” in the New York Times, https://nyti.ms/2HGzLee and “Does a Specific Law Mandate Family Separation and Detention of Minors?,” in Snopes.com at https://bit.ly/3bVMaJa [the answer is ‘no.’] and ACLU’s “Family Separation By the Numbers,”  https://bit.ly/39ZYJ4B from which the following graphic is copied:

See also the AP story “More than 5,400 children split at border, according to new count,” dated October 25, 2019, at https://nbcnews.to/2VbQDla

Some Notes on the “Trial” of Donald Trump

In their opening arguments, the House Democratic managers (read “prosecutors) summarized the testimonial and documentary evidence gathered during the House investigations. Those investigations were, of course, incomplete because the White House prevented many key witnesses from testifying and refused to produce thousands of pages of documents that were subpoenaed from numerous sources. Meanwhile, many Republican senators have stated that they are not interested in the evidence; they will acquit Trump regardless.

Certain questions naturally arise. I will endeavor to answer them.

Does acquittal by the Senate amount to a finding that Trump is innocent of the charges?

Clearly, no. The opening argument by Trump’s defense counsel suggests their central argument is that the House has failed to satisfy its burden of proof. Trump, they say, “did nothing wrong.”

In a situation where many members of the jury (here, the Senate) have stated that they don’t care what the evidence shows and where the majority party, led/owned by the defendant, has/will vote against allowing additional witnesses with first-hand knowledge and against allowing additional documents bearing on guilt to be introduced, it is an easy step for the majority to then vote to acquit on burden-of-proof grounds. But, in doing so, they will not be finding Trump innocent in any meaningful legal sense. At best/worst, they will be saying that you had to fill the evidence cup past half-full and, thanks to our resistance, you failed.

In this way, the Republican majority can bring this phase of Trump’s “trial” to an end, but they cannot find him “innocent.”

What are the implications of Trump withholding testimony/documents?

Republicans defenders are arguing that the House failed in its burden of proof while the defendant, Trump, prevented relevant evidence from being gathered, knowing that legal challenges to his actions would consume most or all of the remaining months until the election, thereby preventing a verdict.

However, when a party possesses evidence about the claimed falsity of a proposition, call it Prop A, but withholds/conceals that evidence, the general principle applied is that an adverse inference against that party is warranted and that Prop A may be fairly found to be true. There is no reason presented in this case to conclude otherwise. The “jury” should therefore find that the testimony of Bolton, Mulvaney and the others, and the documents whose production was refused, all point to Trump’s guilt.  This is particularly true when the “jury” itself has the power to compel production of the testimony/documents and declines to do so.

What are the implications of Senator Susan Collins sending a “note” to the presiding judge, Chief Justice Roberts, complaining about comments made by one of the House managers?

This question is really interesting. In a real trial, jurors may not individually communicate with the judge about matters of substance in the trial with some narrow exceptions. For example, a juror might request that the clerk or bailiff present the judge with a question about the trial, but this would be a question openly shared with all parties. Jurors cannot have secret or private conversations with the judge about the trial while it is going on. And it is beyond imagining that a judge, having somehow received a private note from a juror, would act on it without full and open disclosure to the parties and their attorneys.

This episode, which led to the Chief Justice reprimanding both parties “equally” (shades of Charlottesville), raises the question whether other Republican senators have been privately communicating with the presiding officer and, if so, what those communications have said. I wonder why Majority Leader Schumer or the leader of the House Managers, Schiff, has not raised this issue.

Is the impeachment process an attempt to subvert the results of the last election or to prevent the subversion of the next one, as the Republicans claim?

Of all the “defenses” raised by Trump’s counsel, this is perhaps the dumbest. Under the U.S. Constitution, it is self-evident that impeachment may lead to removal of the president from office. Removal necessarily would “undo” the result of the last election. This concept is elementary and obvious. It is no more a “defense” than the argument that the president believes he’s immune from accountability and therefore he is. Removal undoes the last election because it was intended to.

As for possible debarment from running again in 2020 after being removed, the Senate practice has been that this question is separate from initial impeachment and further that it may be decided by a simple majority vote. See https://herit.ag/2TTlQZI The Trump defense counsel argument that the Democrats are trying to affect future conduct by the president is thus unfounded except to the extent that, once removed, his ability to conduct foreign policy or other official acts on behalf of the United States would definitely end.

Is it correct that the president can claim “absolute immunity” for his close aides or that “executive privilege” prevents any testimony or documentary production whatsoever from being compelled? 

This “defense” is unjustified by any known authority. Whatever else it may mean, the Supreme Court decision in United States v Nixon, 418 U.S. 683 (1974) laid to rest the argument that a president may refuse to disclose information dealing with his own abuse of power in office. Lawyers will no doubt argue about the scope of that decision, but to find that it allows a president to withheld absolutely and without limit testimony/documents dealing with his abuse of office would effectively render the impeachment power a nullity. It would turn the ability to impeach a president on the ability to discover key evidence without access to the most relevant information. There is, I believe, no support for any concept of absolute immunity.

As for more specific immunity, in the form of “executive privilege,” there is, of course, a basis in American law for permitting the chief executive from being compelled to disclosure certain types of interactions with advisors on certain subjects. This is analogous to the more well-known attorney-client privilege. But you can take it for true that attorney-client privilege does not protect a client or the attorney from discovery of information related to criminal behavior. Thus, if the attorney and client meet and the client asks the attorney for advice on how best to conceal unlawful currency transactions, the exchange in that meeting will not be protected by privilege and the attorney may be compelled to testify about it and may be compelled to disclose notes made in furtherance of the advice on how to break the law.

So too for executive privilege. Absent an extraordinary compelling argument that the national security of the United States would clearly be imperiled by discovery (e.g., demanding that the National Security Advisor state in a deposition everything he knows about the nuclear codes), executive privilege may not be asserted to conceal evidence that the president abused the powers of his office. Moreover, executive privilege, like attorney-client privilege, must be asserted with respect to specific inquiries. It may not be asserted as a blanket excuse from discovery because, among other things, it then becomes in substance a claim of “absolute immunity.”

****

I end by acknowledging I am not an expert on some of the above analyses, but I invite anyone who thinks I am wrong about any of them to demonstrate that by citation of authority and convincing argument other than Republican talking points. I rest my case.

 

 

 

 

 

 

 

 

 

 

 

 

 

“Civil Discourse” As a Device to Suppress the Truth in the U.S. Senate

Well, well, well, what a sad state we have come to. The Chief Justice of the United States Supreme Court, sitting as judge in the Senate proceedings on President Trump’s impeachment, ignored blatant personal attacks by White House counsel in their opening salvos against the lead House manager, Rep. Adam Schiff, reminiscent of the hysterical, inappropriate and repeated comments of Reps. Jordan, Nunes, Meadows and other Republicans during the House’s initial consideration of impeachment. White House counsel in fact lied to the Senate about the House investigative process that led to the impeachment. Schiff, when he had the opportunity to call out those lies, spoke diplomatically, saying he would not call counsel liars but would solely note that they were “mistaken” in their descriptions of the House process.

Later, after a ridiculously long day and night (about 13 hours) of alternating argument on motions to subpoena documents and witnesses, all of which were rejected by party-line vote, Rep. Nadler had a turn at the podium. Nadler was there to argue for a subpoena to issue for the testimony of former National Security Adviser John Bolton. In the course of his argument, Nadler asked of the Senate, “Will you choose to be complicit in the president’s coverup? So far, I’m sad to say I see a lot of senators voting for a coverup, voting to deny witnesses — an absolutely indefensible vote, obviously a treacherous vote.”

As reported by Vox.com,

The president’s counsel has no standing to talk about lying,” Nadler said, pointing out that the counsel lied about Trump not being invited to take part in the impeachment inquiry. He told the Senate he personally had invited Trump — which is true — and that “a few days later, we received a letter from Mr. Cipollone on the White House stationary that said, ‘No, there’s no interest in appearing.’ So on the one hand, they’re lying —”

Nadler cut himself off there, and returned to his effort to rebut the White House’s claims with facts. But he returned to his point when concluding his remarks, saying the president “defies everything. Defies the law to withhold aid from Ukraine. Defies the law in a dozen different directions, all the time. And lies about it, all the time. And sends Mr. Cipollone here to lie about it.”

…. Nadler was correct in asserting the White House counsel was lying to the Senate. As Vox’s Aaron Rupar [see https://bit.ly/2TPOfzI] noted, the defense team’s opening remarks alone contained at least four easily refuted lies. And as the proceedings went on, those lies — particularly the claim that Trump had been barred from participating in the impeachment inquiry — were repeated.

Nadler’s statements were an attempt to push back against these false claims — and given the fact that they were delivered after more than 10 hours of deliberation, they may have been couched in some frustration.

Given that frustration, and the length of the day, working to avoiding fistfights on the Senate floor is admirable. And it is important that the drama of the trial be contained to discussions of presidential wrongdoing, rather than on fights.

But if there is no way for either side to openly challenge when the other side is not presenting arguments based on the facts, there is little point in having the trial at all. The way it will end seems predetermined, and what Trump did with respect to Ukraine is clear, meaning its value lies in hearing the best — fact-based — cases for why the president does or does not deserve removal.” [https://bit.ly/2Gd1wKy]

Nadler, likely fatigued by the length of the proceedings as dictated by the Republican majority, spoke very bluntly and, for him, passionately.

Now, the president’s lawyer rose to object, taking umbrage to what he argued was an affront to the Senate, demanding an apology. Suddenly humble and solemn, Mr. Cipollone acted out his new persona as a wounded warrior, advocating not for himself, of course, but for the Senate, for the great body itself.

Astoundingly, in my opinion, the Chief Justice now took it upon himself to admonish the parties to remember that they were speaking to the “world’s greatest deliberative body.” He claimed to be chastising both sides equally, but it was not equal. Not even close.

White House counsel not only attacked House managers personally, but they lied to the Senate about the House process, a fact noted by commentators on news programs. I am pretty hard to surprise these days, but I shared the astonishment of legal commenters that White House counsel would lie to the Senate about something so well-known and so obvious. But they did it. No one demanded they apologize. No one wept about the smudge of the Senate’s supposedly stellar reputation as the “world’s greatest deliberative body” when counsel for the president openly misrepresented facts.

I hope that the Chief Justice is going to manage these contentious and unprecedented proceedings in a more even-handed manner going forward. I am not suggesting he intervene to critique the parties’ arguments as they are made. The parties should be given leeway to make their respective cases. But if we’re going to maintain the pretense that everyone in this conflict must leave passion at the door, that should apply to both sides in equal measure. The phony umbrage of White House counsel is of a piece with the president’s continuing efforts to suppress evidence and damage the credibility of the House investigation. The fact that they represent the president does not authorize the judge in the case to place his thumb on the scale of justice. The next time White House counsel attack the integrity of the House managers or grossly misrepresent known facts, the Chief Justice must call them out immediately and put a stop to what is, in every manifestation so far, a one-sided and fundamentally unfair proceeding.

ADDED NOTE: While the impeachment trial is underway, the Senate GOP is tweeting false statements about Rep. Schiff and the House Democratic process that led to Trump’s impeachment. Question: are Republicans to be allowed to beat their chests about “civil discourse” while simultaneously lying to the world in another forum?

Profiles in Cowardice

I have just read the initial Answer of President Donald J. Trump to the array of charges set forth in the House of Representatives Articles of Impeachment. It reads like a school-yard tantrum. It refers to a “brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” assertions that are interesting if only for their illogical reasoning. I won’t waste time on “brazen” but will note that impeachment by its very nature reverses the electoral result that places any president in office. Surely, the president’s lawyers understand that. What do they really mean? And, it’s a bit ironic, to put the most polite words to it, that they would argue that the impeachment will interfere with the next election, since that is the very offense by Trump for which the impeachment investigation and articles of impeachment were brought. So this opening claim is really just “you’re one too!”

The opening gambit continues with references to the “will of the people,” a matter that Republicans maintain was definitively settled by the 2016 election. Yet, the evidence is clear that, whether or not Trump coordinated on it, the outcome was heavily influenced by a massive Russian disinformation campaign. And there is the small matter of Hillary Clinton having received nearly three million more votes than Trump. While the technical outcome, to borrow a turn of phrase from Alan Dershowitz, of the Electoral College gave the election to Trump, it is more than a stretch to argue that this result reflected the “will of the people.” At best it was the will of the people as distorted by the EC that grants outsized influence to states with smaller populations based on a scheme adopted in 1787 that was a compromise to gain the support of the slave states of the south.

Trump’s lawyers assert that absent a claim of a “crime,” there can be no constitutionally sound impeachment. That argument is simply wrong. Interestingly, Alan Dershowitz who was recently added to Trump’s defense team argued the exact opposite when addressing the question in the Clinton impeachment. https://cnn.it/37gUsJ1 While lawyers are certainly entitled to change their minds in the face of new information, Dershowitz claims that what he said in 1998 is the same as what he says now. That claim is simply preposterous although it is entirely consistent with the continuing positioning of the Republican Party that the truth is whatever they last said it was.

After a lengthy series of changing theories of defense of the president, the defense has at long last come down to the reality that the only “viable” defense is that even if Trump acted as claimed in the articles of impeachment, it doesn’t matter because the president can do whatever he wants. The defense flatly claims that the president did “absolutely nothing wrong.”

We have reached this state because while it permissible to argue defenses in the alternative, in the end the evidence, were it admitted into the Senate record, would establish beyond a reasonable doubt (the standard of proof in criminal cases) that Trump did exactly what was charged in the articles. And the argument that the president of the United States is immune from Congressional oversight, including impeachment, is simply wrong. It flies in the face of the language and historical context of the Constitution’s balance-of-powers scheme.

I am not going to bore you or myself with an excessively detailed dissection of the Trump defense memo. But I will note the remarkable argument that the proof that Trump did nothing wrong is established only by … Trump’s own after-the-fact claims that he did nothing wrong. In effect, the defense is that the president is not guilty because he said so.

The memo also argues that there is no problem here because ultimately the aid to Ukraine was released without Ukraine announcing the investigations Trump wanted. That, I suggest, is an implicit admission that Trump in fact did demand announcements of investigations as a condition for releasing the aid, but eventually caved because his attempt to blackmail Ukraine failed. This is the “no harm, no foul” argument, but it assumes away the central question. The “harm” occurred when the demands were made. Harm does not depend on success of the scheme. The scheme itself was harmful to American foreign policy and security interests and was contrary to American law.

I have also listened all day to the first day of the impeachment proceedings. Several observations are in order. First, the presentations led by Rep. Adam Schiff with participation by Rep. Zoe Lofgren, Rep. Val Demings and Rep. Jason Crow were uniformly brilliant in virtually even way. By contrast, counsel for the president, Jay Sekulow, Pat Cipollone and Patrick Philbin were angry and hostile, attacking Schiff personally and lying to the Senate about the process that had occurred in the House investigation. Schiff, smartly, declined to call them liars and instead said they were simply “mistaken” in their descriptions. I have to say I was surprised at the brazen manner in which these lawyers misrepresented well-known facts in an effort to preserve Trump/Republican talking points.

The Senate process if, of course, blatantly stacked against the Democrats, with the result that all the early motions to have the Senate subpoena documents and witnesses that had been blocked by Trump were defeated by straight party-line votes of 53-47. Nevertheless, the Democrats are making their motions one at a time, with attendant periods of two hours (divided equally between the sides) for argument. I stopped watching when the dinner recess was called at about 7:30. I expect the proceedings to continue deep into the night.

The Democrats, it seems certain, are going to fail to break the Senate Republicans’ unity and thus the outcome of the sham trial appears foreordained. But the evidence, or at least clear outlines of the evidence, are making their way into the record through argument. This process seems certain to further damage Trump’s “credibility,” especially given that most polls indicate a substantial majority of the public prefers that witnesses be called and documents be produced. Neither appears likely to happen.

Tomorrow, as the saying redundantly goes, is another day.