Category Archives: Politics

Just a Little Information for Our Files …. Coo Coo Ca Choo

Leave a reply

You may recall the similar line from the song, Mrs. Robinson, made famous by Simon & Garfunkel oh so many years ago. In what only a few years ago would have sent Republicans into paroxysms of anti-big-government hysteria, Not-My-President Trump has created a “Presidential Advisory Commission on Election Integrity” to try to prove that his oft-repeated claim that massive voter fraud deprived him of a majority vote in the last election.

There is no even preliminary evidence that the claim is true and it has been rejected by electoral officials of both parties in multiple states and locales. But, in keeping with Trump’s personal code of conduct that no lie is too big to tell or act on, especially with taxpayer money, Trump ordered his Vice President, usually standing in the background saluting his Great Leader, to command a formal commission of the federal government to “investigate” voter fraud throughout the country. The silence of the Republican Party about this action speaks volumes about its lack of integrity and moral vacuity. Do bear in mind that this Commission has nothing to do with the Russian interference in the 2016 election to which virtually the entire U.S. intelligence community has attested and which Trump continues to deny.

The Executive Order creating the Commission provides for no more than 15 additional members some of whom must be “individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts” supplemented by, well, anyone Trump chooses for any purpose whatever, regardless of actual qualifications related to the subject matter of the Commission’s work. So far as I can tell, the known appointments to date are former or current secretaries of state from Ohio, Indiana, New Hampshire and Maine. Christy McCormick, a former Justice Department attorney and a member of the U.S. Election Assistance Commission, will also be on the panel, along with Kansas Secretary of State Kris Kobach serving as Vice Chair under Pence. Reports indicate also that Hans von Spakovsky, a conservative “voting rights expert” will also participate with an as-yet unspecified role.

One must wonder if Ohio, Indiana, New Hampshire and Maine were selected because they have vast experience with voter fraud (presumptively absurd) or because they have very little suspected fraud, in which case, why would you choose them?

No need to tarry over that question because the really interesting part is that the Vice Chair of the Commission, without waiting for the Commission to meet and without the benefit of any public input, has already sent a letter to the secretaries of state for all 50 states asking for “publicly available voter roll data … including, if publicly available under the laws of your state” the following information:

  • full first and last names of all registrants,
  • middle names or initials if available,
  • addresses,
  • dates of birth,
  • political party (if recorded in your state),
  • last four digits of social security number if available,
  • voter history (elections voted in) from 2006 onward,
  • active/inactive status,
  • cancelled status,
  • information regarding any felony convictions,
  • information regarding voter registration in another state,
  • information regarding military status, and
  • overseas citizen information.

Further, “be aware that any documents that are submitted to the full Commission will also be made available to the public.”

I confess that I did not realize that such data was available for the asking by members of the general public or not-general public (Super-Pacs are people now too, you know; so are corporations who employ millions of voters, but more about that in a minute).

What we have here is the first attempt ever, of which I am aware, to create a nationally scoped federally controlled database of voting behavior tied to the identity of individual voters. And it covers eleven years of voting. Let that sink in a minute.

Call me paranoid if you like, but this raises memories of the line in the old WW II movies in which an imperious Nazi always demands “your papers please,” the “please” being a euphemism for “or I will kill you.”

Nothing in the Executive Order creating the Commission authorizes the collection of this type or massive amount of data about voting behavior. The Commission’s job is to study “registration and voting processes used in Federal elections.” The EO is clear that the Commission is advisory only and thus has no independent power to act on whatever findings it makes.

The Commission’s report to the president is to discuss

 (a)  those laws, rules, policies, activities, strategies, and practices that enhance the American people’s confidence in the integrity of the voting processes used in Federal elections;

(b)  those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of the voting processes used in Federal elections; and

(c)  those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting. [emphasis added]

I cannot see any logical basis to infer from such a study description a basis or need for the individualized voting information demanded by the Commission’s letter. The language of the EO speaks of laws, rules, etc. and does not mention collecting data on individual voting histories associated with named voters absent reasons to believe actual fraud in voting occurred.

I don’t know whether law students are still taught about ultra vires, a Latin phrase meaning “beyond authority,” but the concept clearly applies here. The demand for massive volumes of individualized voting behavior data is ultra vires of the Executive Order.

I understand all too well that our so-called president thinks he can do anything he wants to do, without regard to legal process. The repetition of that mistake continues to frustrate him, as it most recently did when the U.S. Court of Appeals for the District of Columbia Circuit overturned an EPA decision, made without process or opportunity for public input, to delay an Obama-era rule restricting methane emissions from certain oil/gas wells which rule had in fact been subject to such processes for input.   Such mistakes, combined with the sloppy drafting of Executive Orders and the president’s uncontrollable mouth and Twitter habit, have defeated many of his major initiatives. [Parenthetically, hats off to the Sierra Club for filing this suit, with others.]

In the case of this Commission on Election Integrity, the primary pushback is currently coming from the states, a majority of which have apparently told the Commission to get lost. Fortunately for me, the Governor of Virginia, Terry McAuliffe, is one of those, so I won’t have to sue the United States to prevent it from collecting information that I believe violates my right of privacy in my voting practices. It is curious, though not surprising, that a president who seems to treasure the phrase “witch hunt,” does not recognize that this Commission is charged with precisely that type of search. Things may have worked this way in the private TrumpWorld that the president formerly ran [and may still be running despite blatant conflicts of interest] but that don’t work that way in the government world where the rule of law applies to everything.

Earlier I mentioned that corporations are “people” in the eyes of the law now. Since the data the Commission intends to collect will be available to the public without apparent limitation, we can infer that the Super-Pacs and large corporations with active political interests will be interested in this information. Do you want your employer to know whether you voted and, possibly, by inference for whom you voted? Where is the Republican Party, that great defender of individual freedom from overweening government interference in the personal lives of citizens?

The Executive Order authorizing this Commission is another example of the incompetence and bad intentions of the Trump administration. Its only substantive purpose is to support the so-called president’s political agenda which includes his insistence that he would have won the popular vote but for massive illegal voting. Intelligent conservatives surely see what is going on here but cleave to the president with the argument that in a democracy there is no more important matter than the sanctity of the vote. They are partially right, but chasing after faked issues is not going to improve the integrity of voting protections. The truth is that the real goal of Trump’s agenda is suppression of anti-Trump votes. Republicans know that, and are complicit in the scam that this Commission on Election Integrity represents.

In the end then, we are again reminded of the phrase from Mrs. Robinson,

Going to the candidates’ debate

Laugh about it, shout about it

When you’ve got to choose

Every way you look at it you lose.

Sessions’ Testimony Evaluated – Part 2

Leave a reply

In the previous post, I discussed the opening of Attorney General Sessions’ testimony before the Senate Select Committee on Intelligence. In this part, I will begin reviewing the questioning by the Committee:

Chairman Burr began by asking about Trump’s Foreign Policy Speech at the Mayflower Hotel, to which, as noted in Part 1, the Russian Ambassador, and known spy, Sergey Kislyak was invited. Burr offered up this softball:

Would you say you were there as a United States Senator or as a surrogate of the campaign for this event?

To which Sessions said:

I came there as an interested person and very anxious to see how President Trump would do in his first major foreign policy address. I believe he had only given one major speech before and that was maybe at the Jewish event. It was an interesting time for me to observe his delivery and the message he would make. That was my main purpose of being there.

What? Sessions was sworn in as Attorney General on February 9, recused himself from the Trump-Russia investigation on March 2 and on April 27, the date of the Mayflower speech, he wants us to believe he was just another guy interested to see how the President would handle himself at his second big speech, the first having been given at the “Jewish event.” Wait, the “Jewish event?” What kind of language is that? The reference is to Holocaust Remembrance Day, which was two days before the Mayflower event.

Putting that aside, for now, Sessions’ explanation for his presence at the Mayflower speech simply beggars the imagination. He was present at an invitation-only VIP reception for about two dozen people, including Kislyak, and it is utterly implausible that he was there just out of curiosity about Trump’s speech-making capabilities.

Sessions then introduced the concept of “appropriateness” to his testimony. When Senator Warner asked for a commitment to make himself (Sessions) available to the committee in the weeks/months ahead, Sessions said he would do so “as appropriate,” citing his belief that it was not “good policy” to “continually bring cabinet members or the attorney general before multiple committees going over the same things over and over.” Then this ensued:

WARNER: Appropriations committee raised that issue.

SESSIONS: I just gave you my answer.

WARNER: Can we get your commitment since there will be questions about the meetings that took place or not, access to documents or memoranda or your day book or something?

SESSIONS: We will be glad to provide appropriate responses to your questions and review them carefully. [emphasis added]

Sessions continued to avoid answering even simple direct questions:

WARNER: You have confidence [Robert Mueller] will do the job?

SESSIONS: I will not discuss hypotheticals or what might be a factual situation in the future that I’m not aware of today. I know nothing about the investigation. I fully recuse myself.

WARNER: I have a series of questions, sir. Do you believe the president has confidence?

SESSIONS: I have not talked to him about it.

There then ensued a struggle between Sen. Warner and Sessions over whether anyone at DOJ had discussed presidential pardons with “any of the individuals involved with the Russia investigation.” Interestingly, Sessions treated that question as seeking information about conversations with the President and refused to answer. Warner asked about “other Department of Justice or White House officials,” but again Sessions refused.

We have a right to have full and robust debate within the Department of Justice and encourage people to speak up and argue cases on different sides. Those arguments are not — historically we have seen they shouldn’t be revealed.

This, I suggest, is tantamount to a statement that the Department of Justice will simply not answer to the investigative bodies within the United States Congress. It would be quite significant if DOJ lawyers were already talking about presidential pardons related to Trump-Russia, but Sessions essentially said “none of your business.”

Finally, for today, Warner did obtain Sessions’ concession that while he claimed to have had severe concerns about James Comey’s performance as FBI director even prior to being confirmed as Attorney General, he never discussed those concerns with Comey. Instead, he endorsed Deputy Attorney General Rosenstein’s memo to the President that Comey should be summarily fired.

Sessions’ Testimony Evaluated – Part 1

Leave a reply

Given the speed with which events overrun, and overwrite, memories, I am going to devote a lot of words to the testimony of Jefferson B. Sessions III, attorney general of the United States, before the Senate Select Committee on Intelligence on June 13, 2017. This analysis is based on the transcript of the hearing published at http://politi.co/2rtgQJf with correction of obvious typos. A full evaluation is going to require multiple posts, so please bear with me. I think this worth doing because of the gravity of the issues raised.

Note at the outset one unusual feature of the hearing that distinguishes it from normal investigative legal work: both Chairman Burr and Vice Chair Warner go on at some length to detail the areas of inquiry, including specific questions they intend to ask the witness. This is part of the politesse of the political process that deters the kind of relentless interrogation that true investigative work involves. This was well illustrated when Senator McCain leapt into action to alert the Chairman that Senator Kamala Harris was being too aggressive in her very lawyer-like cross-examination of Sessions about the nature of his preparation, or lack of it, for testifying.

Also of special interest was Warner’s commendation of the Chairman about his remark at the end of the Comey hearing the week before that, given the “pattern of administration officials refusing to answer public, unclassified questions about allegations about the president in this investigation,” it was “not acceptable for [witnesses] to come forward without answers.” Later, Sessions would refuse to answer multiple questions on the grounds that the President should be given a prior opportunity to invoke Executive Privilege regarding answers to questions involving conversations with him and any member of the Cabinet and, likely, any member of White House staff.

Sessions’ opening remarks asserted that he did not remember what would in all events have been a casual contact with Russian Ambassador, and known Russian spy, Sergey Kislyak because they were both invited to Trump’s first foreign policy speech preceded by a private reception for perhaps two dozen people. This description is not implausible in the context of Washington political processes, but the question, not asked by any Committee member, was why was the Russian Ambassador invited in the first place to this small private and exclusive gathering that was attended by Trump himself, however briefly?

Sessions then undertook to address his response to Senator Franken during the AG’s confirmation hearing. The exact question posed, after a short recital of current press reports, was

“if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

Sessions never answered that question. Instead, he said:

Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

During his Intelligence Committee testimony, Sessions entered a sweeping denial of any discussions with anyone about campaign interference, and a flat denial of knowledge of such conversations by anyone else in the Trump campaign organization. This he remembered quite clearly. Then, referring to Senator Franken’s question about then-current press reports, Sessions said:

That was the context in which I was asked the question and in this that context my answer was a fair and correct response to the charge as I understood it. I was responding to the allegation that surrogates had been meeting with Russians on a regular basis. It simply did not occur to me to go further than the context and to list any conversations that I may have had with Russians in routine situations as I had many routine meetings with other foreign officials.

On its face this is not a completely implausible explanation. However, there are other relevant facts that raise questions about plausibility.

Sessions was sworn in as Attorney General on February 9. His testimony maintained that until his formal recusal on March 2, a period of three full weeks, he received no information or briefings related to the Russia investigation other than discussions related to press reports that might bear on the need to recuse himself.

But, most curiously, Sessions expressly denied that his recusal had anything to do with possible campaign wrongdoing. Instead, he claimed his recusal was based entirely on a federal regulation, 28 CFR § 45.2, that forbids a DOJ employee from participating in a criminal investigation of an organization if the employee had a personal relationship with the target. A waiver is possible if the employee’s superior makes certain findings but there was no chance of a legitimate waiver for Sessions who stated he believed the regulation “required” his recusal. Sessions then declared that such a recusal could nevertheless not be allowed to stop him from running the Department of Justice and, therefore, he acted properly in presenting to the President

my concerns and those of Deputy Attorney General Rod Rosenstein about the ongoing leadership issues at the FBI as stated in my letter recommending the removal of Mr. Comey along with the Deputy Attorney General’s memorandum on that issue…. Those represent a clear statement of my views. I adopted Deputy Attorney General Rosenstein’s points he made in his memorandum and made my recommendation. It is absurd, frankly, to suggest that a recusal from a single specific investigation would render the attorney general unable to manage the leadership of the various Department of Justice law enforcement components that conduct thousands of investigations.

This statement raises more fundamental questions that were never addressed by the Committee.

First, if, as Sessions claims, the recusal was based solely on the “campaign relationship” issue covered by the regulations, why did it take three full weeks for him to recuse himself? The governing regulation is only a few paragraphs and is very explicit. The President was reportedly furious about Sessions’ recusal and tweeted about it. What went on during that three weeks?

Second, whatever the asserted reason for the recusal was, if the recusal was from the Russia investigation, defined as the question whether there were inappropriate/unlawful contacts between the Trump campaign and the Russians, being led by FBI Director Comey, how can Sessions, in the guise of managing the Department of Justice, justify recommending the firing of the person heading the investigation? Sessions appears to believe that he is free to do anything he chooses in the Russia investigation because his recusal was based on something other than his interactions with “representatives” of the Russian government. It is difficult to imagine a court accepting such twisted reasoning which effectively vitiates the recusal as regards anything related to the Trump-Russia investigation.

This concludes consideration of Sessions’ direct testimony. In the next installment, I will take up the questioning by the members of the Senate Intelligence Committee.

Voice from the Past Trying to Tip the Scale?

Leave a reply

Call me paranoid if you like, but the publication of a think-piece by Kenneth Starr leaves me more than a little disturbed. The article is entitled “Believe in the process” in the published Washington Post of June 16, 2017 and as “Firing Mueller would be an insult to the Founding Fathers” in the online version of the Post. http://wapo.st/2rDNAja

Starr, you may recall, was U.S. Solicitor General for President Bush (41) and served as independent counsel investigating various aspects of the Clinton presidency. His story can be seen at https://en.wikipedia.org/wiki/Ken_Starr.

Starr’s observations in the Post start off well enough, arguing that “the process, untidy and rancorous as ever, is actually working well” and that we need to “step back” and let the government finish its work. Referring to the present special prosecutor, Robert Mueller, Starr states the obvious: “the president would be singularly ill-advised to threaten, much less order, Mueller’s firing.” Starr adds that “Wisdom counsels strongly against unleashing a 21st-century version of the Saturday Night Massacre of Watergate-era infamy.”

Then, a funny thing happens. In what looks to me like a subtle attempt at gas-lighting. Starr writes:

Certainly, if Mueller wanders outside the bounds of professionalism and basic integrity, he can and should be fired. Concerns are already being raised – including about Mueller’s friendship with Comey and his staff-packing with anti-Trump partisans. He will be closely watched.

Maybe I missed it, but I haven’t noticed any “concerns” being raised about Mueller’s approach to the investigation of Trump-Russia or other possible criminal conduct by Trump and his administration. Virtually everyone who has addressed the subject has praised Mueller as a paragon of integrity and professionalism, someone beyond reproach.

Starr goes further, addressing Attorney General Jeffrey Sessions’ refusal, in testimony before the Senate Intelligence Committee, to discuss any aspect of conversations with the president related to anything. Sessions asserted that the president should be given the questions and what amounts to an indefinite period of time to decide whether and how the questions can be answered. Starr flatly declares that Sessions “was on entirely solid ground in safeguarding the president’s right to invoke executive privilege.”

However, when Senator Kamala Harris tried to examine Sessions about why Sessions did not prepare for the inevitable questions about contacts with Trump, she was interrupted by Senator McCain waiving a verbal flag at Chairman Burr to stop Harris’ effort to get at that important question. Burr responded by effectively preventing further examination on that point. The question I have raised in other forums was, of course, not reached: why the previous intelligence leaders and Sessions’ appearance did not include White House counsel who could have advised on the spot about the assertion of executive privilege and the basis for it.

Then the Starr article gets even crazier and more troublesome. Starr goes on to say that “the early returns also suggest the absence of any Oval Office criminality.” He sells out on whether Trump’s “hope” that Comey would drop the Michael Flynn investigation was reasonably construed by Comey as a statement of presidential intention rather than a wistful wishing upon a star (no pun intended, but I do like it). Starr claims that “to hope that the director would abandon a line of inquiry is most naturally read as pleading and cajoling, but not as an order” and “in any event, at the time, Comey didn’t treat the president’s words as a directive.”

These declarations are astonishing in multiple ways that reflect an attempt by Starr to put his foot on the scale and add gravitas to Trump’s defense against obstruction of justice. There is no indication, other than Fox News and its like, that “early returns … suggest the absence of any Oval Office criminality.”

There are, I suggest, millions of Americans who believe just the opposite based on what has been disclosed thus far. Moreover, what Starr claims is the most “naturally read” thrust of the president’s stated “hope” is, in fact, downright silly, since Starr was not present to observe the president’s demeanor or fully evaluate the context. The notion that the president of the United States, known globally for his always-aggressive style, was effectively on bended knee before a man whose employment was in the president’s hands is facially absurd. And, of course, Starr ignores the most inconvenient fact, confirmed by Sessions, that Trump cleared the room before addressing his “hope” to Comey. Trump can’t begin to remember the last time he pleaded and cajoled to get his way.

Finally, there is Starr’s claim that since Comey at the time didn’t treat Trump’s words as a “directive,” the “pleading and cajoling” must not have been a directive. What would Comey have had to do to show that he took the words as a statement of what the president wanted and expected of him? Salute? Bow down? In fact, Comey went to his car and promptly wrote down what had transpired. And he asked the Attorney General to not leave him alone with the president in the future. That memorandum is now in the hands of Special Prosecutor Mueller. Starr would have us believe that Comey made the whole thing up, an act that even most of Comey’s principal adversaries seem to believe is inconsistent with both his character and long-time behavior.

I suspect we have not seen the last of Trump’s shadow team stepping forward to try to shore up the sinking ship that Trump has captained to near disaster. Newt Gingrich is another voice from the Republican past who is going to extraordinary lengths to sustain the president in his self-imposed hour of ever-deepening crisis. Gingrich for example, has stated that a president cannot, as a matter of law, commit obstruction of justice. http://bit.ly/2rFgD5N

Last time I looked, the United States was still a constitutional democracy. We do not have a king. We have not had a king since 1776 when we declared our independence and officially ended any allegiance to the King of England. Gingrich should refresh his memory regarding the U.S. Constitution.

It would not be surprising if more people like Starr and Gingrich join the proverbial circle of wagons around the White House. Even Vice President Pence is lawyering up. Give it your best shot, gentlemen. The cavalry is coming. But this is not a Western movie and the cavalry is not coming to save you.

C’mon People, It’s Called ‘School’ for a Reason

Leave a reply

Admittedly, in the title of this piece I am playing off the TV ads for beach vacations at Ocean City, Maryland, but the underlying issue is serious. The June 10 Washington Post reported that “school administrators” at a Northern Virginia high school had forced two female Muslim students to bring notes from home to prove they were wearing hijabs (head scarves) for religious purposes. http://wapo.st/2srfAeb This reportedly occurred because the school has a policy against students wearing hats or other head coverings except for religious purposes. Apparently, the girls’ word was insufficient and there were repeated instances of administrator challenges, sometimes in front of other students.

Ultimately, the school “administrators” apologized and revised the policy so that students don’t have to prove any religious practice to wear a hijab. Fine, as far as it goes. But you can imagine where this kind of thing leads.

Why, for example, in the current fraught context of controversy spawned by the Trump administration over whether Muslims are welcome in the United States, would a non-Muslim student be forbidden from wearing a hijab as a demonstration of support for Muslims? What educational objective is secured by preventing such acts of good will among students? Suppose hundreds of students decided to wear a hijab to school one day to support their fellow Muslim students during Ramadan? What is the real problem here? Is it the same problem if Orthodox Jewish students want to wear a yarmulke to school?

Among the lessons of formal schooling are learning new things while you, hopefully, grow up. This surely includes associating with new people, not all of whom are going to be like you. Schools should be promoting more interactions among “unlike” students so that, as they continue to mature and enter the adult world, they are more open to and better prepared to deal with the myriad types of people with whom they will interact at work and elsewhere. This healthy process is enhanced, I suggest, by allowing students to “be different” if they choose to be.

The main qualification on “being different” in school would be the problem of disruption or, as it is often portrayed, “distraction” of other students. But the question there is really ‘who is responsible for the distraction?’ If it is merely a passive expression of difference (I’m wearing a hijab and you’re not), any distraction problem should be laid at the feet of the distracted student and not at the student who is merely different. This approach would not apply, obviously, if the issue were overt behavior such as, for example, making a speech in class when the students are supposed to be working quietly on math problems.

For the most part, if school administrators left the students alone to be themselves while acknowledging and showing respect for their differences, some of that likely would rub off on the students. On the other hand, the intervention of the school in ways that seem to disparage students’ separate and different identities is also noticed by students. What lesson do they take away from such episodes?

It might be argued by some that enforcing “no differences” rules is just another way of acclimating students to accept the fact that they will be subject to arbitrary rules from time to time. In a society already struggling with the tribalist tendency to associate only with those just like us, and to listen only to opinions with which we already agree, reinforcing the lesson of acquiescence in arbitrary rules is a mistake. Students should instead be encouraged to, peacefully but persuasively, challenge arbitrary rules that teach nothing of real use.

They are called schools for a reason – to learn and not to merely reinforce what parents already believe.

Trump Calls Comey a Liar – A Most Dangerous Game

4 Replies

Alternative Title: Rat in a Corner — Who You Gonna Believe?

It didn’t take long for President Trump to dispute the stunning facts set out in James Comey’s testimony on Thursday. Trump’s apparently strong conviction in his assertion that Comey lied under oath (and also has misled Special Prosecutor Mueller by providing him with false information about Trump’s conduct) may give some people pause. Trump even says he will speak under oath about the critical meetings with Comey but stops short of saying that he will stand cross-examination as Comey did.

Is Trump’s assertion another version of “I will definitely release my tax returns?”

I suggest that Trump has flatly disputed Comey’s narrative because he had no choice. Could he conceivably have remained silent in the face of the allegations that he pressured Comey to end investigation of Michael Flynn and lighten up on the Trump-Russia investigation? I suggest that the answer can only be ‘no.’ Trump’s silence would have been construed as acquiescence and that is one thing he cannot afford to do now that the suspicions about his conduct have become fixed.

Still, the question remains: who is to be believed? The answer is Comey and there are multiple compelling reasons for that conclusion.

First, it is not disputed that Trump directed other persons present to leave the room before speaking to Comey. Is there a plausible reason for this other than “I know what I am about to do is wrong and I don’t want witnesses to it?”

Second, Comey says he immediately wrote down detailed notes of what had transpired. This was done on a “classified computer” and thus can be verified as to date and time of creation. Comey obviously knows that. Is it plausible then to believe that he created a contemporaneous false narrative to destroy the President? Bear in mind that Comey’s written testimony before the Senate Select Intelligence Committee was based on those notes and that Comey gave the notes to Special Prosecutor Mueller before testifying?

Third, weeks ago Trump implied in a tweet that he might have “tapes” of the meeting(s) with Comey. Subsequently, he has refused to confirm that such “tapes” exist and his White House staff claims either not to know. After Comey’s testimony, in which he said he would welcome release of the tapes if they exist, Trump has continued to refuse to confirm the existence of the tapes. I suggest that this is a classic Trump negotiating tactic and that he has to be bluffing. Why? Because Trump had to know what actually happened during the Comey meetings and if he had “tapes” that would completely destroy Comey’s credibility and serve as major pushback against the Trump-Russia investigation, he would have released them by now.

Finally, there is the matter of general credibility. Comey has a distinguished career in law enforcement and is highly respected by anyone with a shred of objectivity and, reluctantly, by some who have sacrificed their credibility in support of Trump. Contrast that history with Trump’s history of lies before, during and after his election. There are lists of these all over the Internet, so I will not repeat them here. This comparison is “no contest” – Trump loses.

In the interest of balance, I do acknowledge, as I have in another post, that Comey made some mistakes in handling the Hillary Clinton email investigation, but these are not mistakes of credibility. They were mistakes of judgment. And, of course, there is the fact that the Clinton investigation mistakes worked to Trump’s advantage and may well have pushed Trump over the finish line in 2016. No joy for Trump in this.

Thus far, then, Trump is putting his credibility squarely on the line against Comey. Someone is lying, bigly. This looks like a losing proposition for Trump. Notwithstanding the weakness of Trump’s position, his political base, and the Republican Party co-conspirators and sycophants in Congress, continue to support him. They appear ready to do down with the ship.

From here on, the key for the country is for the Democrats in Congress and the Democratic base, regardless of preferences in 2016 (get over it), must engage in a relentless, all-hands-on-deck resistance to Trump’s agenda. Republicans will not move against Trump unless and until he is both failing as the chief executive of the country and conclusively humiliated as having engaged in obstruction of justice and lied about it.

Trump Obstruction of Justice – Who Decides?

Leave a reply

So far as my research has revealed, one aspect of the James Comey hearing has not been directly discussed. I concede I may be overreacting or over-parsing what was merely a generic statement from Richard Burr (Rep. NC), the Chair of the Senate Select Committee on Intelligence. But if I’m not guilty of those errors, this is a point worth talking about.

When Burr opened the hearing yesterday, he said:

We will establish the facts, separate from rampant speculation, and lay them out for the American people to make their own judgment. Only then will we as a nation be able to move forward and to put this episode to rest.

That, I suggest, is fundamentally wrong. It makes a nice high-minded statement of democratic philosophy, but in the present context, it may reflect an intention to abdicate the true role of the Select Committee.

Certainly, that role includes uncovering, the truth about the connections between the Trump campaign, and possibly Trump himself, and operatives of the Russian Federation and the effects that had on the 2016 election. It also includes discovering whether the President attempted to undermine the investigation of those relationships by making inappropriate and/or unlawful demands on the then-Director of the FBI and, failing to get what he wanted, firing the Director.

The issue raised here is: what happens when the investigation and hearings are concluded? Burr’s statement implies that some vague plebiscite will then occur in which the American people will “make their own judgment” and that will end the entire affair. Of, perhaps, he means the Committee will make a report, which likely will not reveal all the classified information, and then leave it up to the next election to resolve the culpability of the President. If that is what the Chairman thinks, he has seriously misunderstood his Committee’s role.

In fact, there will be no plebiscite on the question whether Trump is guilty of obstruction of justice. While there will be on-going elections beginning this year, continuing through the 2018 mid-terms and on to the presidential election of 2020, none of those will directly judge in isolation whether the President tried to interfere with the investigation into the Russia connection and thereby committed the offense of obstruction of justice. The evaluation of that question belongs in the first instance to the Congress under its authority to impeach and convict the President for “Treason, Bribery, or other High Crimes and Misdemeanors.” U.S. Constitution, Art. II, sec. 4.

Burr’s Committee would play a central role in the impeachment process, as will the corresponding committee in the House of Representatives where impeachment proceedings must begin. U.S. Constitution, Art. I, sec. 2. The actual trial of any impeachment is a matter for the Senate. U.S. Constitution, Art. II, sec. 3. The requirements for impeachment and conviction are high, as they should be, and the penalties for the President are limited because the Founding Fathers were concerned that political maneuvering could be used to interfere with the President’s execution of his duties. It is also true, however, that the President, while given wide latitude in the conduct of the Executive Branch powers, may not commit crimes and assert “I am the President and no one can hold me to account.”

We must remain aggressively attentive to any effort by Congress, in any form, to sidestep its constitutional obligations to address the issues raised about the President’s conduct. If the investigations, including most importantly the independent investigation by Special Prosecutor Mueller, do not uncover wrongdoing, so be it. The President will then be judged at the ballot box on his overall performance. But if the President has committed, as the facts so far strongly suggest, obstruction of justice, that offense against the country must be taken up by the Congress and moved swiftly to conclusion. If the Republicans in Congress are going to look the other way on the President’s transgressions, they too will face the ultimate test in the elections to come.

Comey Testimony – The Bell Tolls ….

Leave a reply

Appointment in Samarra

 A merchant in Baghdad sent his servant to the market.
The servant returned, trembling and frightened. The
servant told the merchant, “I was jostled in the market,
turned around, and saw Death.

“Death made a threatening gesture, and I fled in terror.
May I please borrow your horse? I can leave Baghdad
and ride to Samarra, where Death will not find me.”

The master lent his horse to the servant, who rode away,
to Samarra.

Later the merchant went to the market, and saw Death in
the crowd. “Why did you threaten my servant?” He asked.

Death replied, “I did not threaten your servant. It was
merely that I was surprised to see him here in Baghdad,
for I have an appointment with him tonight in Samarra.”

 This ancient tale appeared as the epigraph to the John O’Hara 1934 novel of the same name. I believe it refers to the unavoidable nature of judgment and the self-destruction of those seeking to avoid it. I was reminded of it today while listening to and watching most of former FBI Director James Comey’s riveting testimony before the Senate Intelligence Committee.

Overall, although I think Comey made some mistakes in handling the extremely difficult situation with which he was faced, I concluded that his narrative of the events was completely credible in virtually every detail. Comey was put in a very difficult spot by the President who was, on the face of it, the elected leader of the government. The decisions he had to make about whom to tell, who he could trust, in an atmosphere of uncertainty and suspicion created by the President’s own conduct, were hard ones. In retrospect, it is easy to criticize some of his choices but the critics are partisans looking to make a case to protect what they wrongly believe is their interest in propping up the President regardless of the cost to the country.

So, while Comey is not perfect, and likely made some mistakes along the way, it will be “no contest” between his credibility and that of the President, who is a demonstrated serial liar and fantasist. The Republicans will score some points along the way to the endgame but, stacked against the malicious conduct of the President, his history of mendacity and the multiple unexplained campaign contacts with the Russians, the game will go to Comey.

Let’s look at a few of the “defenses” suggested by the questions asked by Republican Senators in today’s hearing. One seems to be “you (Comey) didn’t tell the right people what happened, so it didn’t happen,” or, the alternative version of that: “you’re just as bad as he is, so what’s the problem?” To this, I think, the conclusive answer is that Comey told everyone he thought was trustworthy and that should have been notified. “Standing up to the President” was certainly a theoretical option but given the circumstances and the plain intent of the President’s importuning, it is not unexpected that Comey would have been super-cautious in the wake of the President’s prodding.

Finally, on this point, the fact that Comey didn’t object to the President’s face or tell the Attorney General (whom he accurately believed was about to recuse himself from the Russia investigation) does not logically defeat the statement that the President sought Comey’s agreement to an inappropriate and unlawful objective: stopping the Flynn matter and derailing the Russia investigation. Trump later confessed publicly that he fired Comey precisely to interfere with the Russia investigation. Even if Trump, as he asserted, genuinely believed he was a victim of a “witch hunt,” that was no excuse for his action in firing the leader of that investigation.

Another suggested defense was that Trump’s expression of “hope” that Comey would drop the Flynn investigation was just that, an expression of a personal desire, but not a directive. If all you had was a cold transcript of the conversation, that is a spin that could be placed on the words used. But, Comey testified that in the context and circumstances of the request, he took it as a demand for compliance that was totally inappropriate. If Trump had merely wanted to express his belief that Flynn was a “good guy,” he could have done that with witnesses in the room. But he cleared the room instead.

Could he have been more aggressive in his response? Surely, he could have, but it is not implausible to believe that he was indeed truly “stunned” by the unexpected request by the head of the government who had just cleared the room so there would be no witnesses. Instead of “standing up” to the President by challenging him personally, he quickly wrote a memo of what had happened so that there would be a contemporaneous record to support his version of the events. That is powerful evidence of the truth of what transpired, notwithstanding the claims of Trump’s lawyer that Comey’s testimony somehow vindicates the President. If Trump believes that, it is yet another example of how divorced from reality he is.

The third defense I heard was “You’re just mad because he fired you and you’re seeking revenge.” This claim fails on the facts, given that Comey, while still holding his job and having no reason to believe he would be fired, prepared contemporaneous memoranda of what happened in his private contacts with Trump. Comey’s testimony made clear he prepared the memos because he did not trust the President to tell the truth. No surprise there – the chickens have come home, as Trump’s history of lying and distortion returns, once again, to hurt him.

My personal favorite is Speaker of the House Paul Ryan saying that Trump “is new at this” and thus “he probably wasn’t steeped in the long-running protocols that establish the relationships between DOJ, FBI and White Houses. He’s just new to this” and “he is learning as he goes.” Nevertheless, according to the CNN report, “Ryan declined to comment on whether he thought it was appropriate for Trump to ask Comey to drop the investigation into Flynn.” http://cnn.it/2rGgcf4

They can’t have this both ways: yes, the President is an inexperienced neophyte who made mistakes but, no, I can’t say what he did was wrong. If Ryan had any credibility left, he sacrificed it on the Trump altar today.

Then there is White House Deputy Press Secretary Sarah Huckabee Sanders denying that Trump is a liar, flatly challenging Comey’s testimony: “I can definitively say the president is not a liar,” Sanders told reporters during an off-camera briefing at the White House. “I think it is frankly insulting that question would be asked.” http://politi.co/2rQpKCq

I am, of course, deeply reassured by Sanders declaring the President’s veracity “definitively.” Otherwise, we might question her conviction if not her judgment. More seriously, I am also wondering, of course, how she can be so sure of this, since neither she nor Sean Spicer seem to know what is going on at the White House most of the time. When asked, for example, about the existence of a White House taping system that would potentially support an earlier Trump tweet about “tapes” of his interaction with Comey, she said “I have no idea.”

No doubt that is true. White House staff generally continues not to know the answers to basic and important questions about the President’s conduct of the nation’s business. And the truth likely is they don’t want to know. Ignorance may be their only defense to complicity in the attempt to cover-up Trump’s obstruction of justice, as they, perhaps, recall that many of Nixon’s White House staff served prison terms for covering up the Watergate conspiracy.

Finally, there is the astonishing claim by Trump’s personal attorney that Comey violated some “privilege” arising from communications with the President. There is no privilege for obstruction of justice and, in any case, Trump has waived any privilege that might exist by his public comments on Twitter and elsewhere regarding the conversations with Comey. Again, they can’t have this both ways.

 

 

Hello, Darkness, My Old Friend — Where are the Musicians?

2 Replies

A recent story about Joan Baez speaking with protesters who accused her of betraying soldiers during the Vietnam War reminded me of something that has been nagging me for some time. Where are the musicians? We are locked in a fight for the political and moral well-being of the country but there is apparently no folk-music building around the struggle, no anthem for the truth we seek to find amid the torrent of lies, deceptions and self-dealing with which the Trump administration has disgraced the United States.

Everyone who lived through the ‘60s and the upheaval generated by the Vietnam War will recall the many artists who gave us some of our iconic folk and protest songs that were one of the defining elements of what came to be called the counter-culture. So far, at least, the RESISTANCE to the Trump administration has no such identifying music or musicians, though there are a number of familiar chants associated with the protest marches. There is also, I am told, some rap music that may fit the description of protest anthems but they seem unlikely to become widely known as representative of the broader issues involved in the Resistance to Trump and his enablers.

I, for one, miss the music. The lyrics of the Sound of Silence, the masterpiece by Paul Simon (©Universal Music Publishing Group), seem particularly apropos of our current circumstances:

‘Hello darkness, my old friend
I’ve come to talk with you again
Because a vision softly creeping
Left its seeds while I was sleeping
And the vision that was planted in my brain
Still remains
Within the sound of silence

In restless dreams I walked alone
Narrow streets of cobblestone
‘Neath the halo of a street lamp
I turned my collar to the cold and damp
When my eyes were stabbed by the flash of a neon light
That split the night
And touched the sound of silence

And in the naked light I saw
Ten thousand people, maybe more
People talking without speaking
People hearing without listening
People writing songs that voices never share
And no one dared
Disturb the sound of silence

Fools, said I, you do not know
Silence like a cancer grows
Hear my words that I might teach you
Take my arms that I might reach you
But my words, like silent raindrops fell
And echoed in the wells of silence

And the people bowed and prayed
To the neon god they made
And the sign flashed out its warning
In the words that it was forming
And the sign said, the words of the prophets are written on the subway walls
And tenement halls
And whispered in the sounds of silence’

White House Rejects Then Accepts Ethics Transparency

Leave a reply

Another pointless dispute within the Trump administration appears to have been resolved. It was pointless because, one way or another, the information sought by the Government Ethics Office (GEO) – lists of lobbyists given waivers by the White House to work in the Executive Branch –was going to be discovered and reported. With who-knows-how-many former lobbyists showing up at government meetings and signing off on government documents, sooner or later their identities would have been uncovered and reported. In the meantime, this episode, as with many others, illustrates the propensity of the Trump administration toward secrecy regarding the public’s business that these people are supposedly performing.

The dispute is thusly stated. Eight days after taking office, President Trump signed an Executive Order entitled “ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES” that, among other things forbids, for 2 years from appointment, participation in Executive Branch activities involving “any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” EO sec. 6. If an appointee was a registered lobbyist with the 2 years before appointment, the EO also bars participation, for 2 years from appointment, in “any particular matter on which [the appointee] lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.”

The apparent purpose of this early EO was to show Trump’s commitment to ethics in government and the Executive Branch in particular. However, the broad sweep of the EO is limited by the definitions that apply and create potentially large loopholes. For example, “lobbied” is defined as “to have acted as a registered lobbyist.” EO sec. 2(m). Although “Lobbying activities” has the same meaning as that term has in the Lobbying Disclosure Act,” the EO excludes activities such as “communicating or appearing with regard to:  a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed by the Administrative Procedure Act, as amended, 5 U.S.C. 551 et seq.” EO sec. 2(n). Why such exclusions were necessary is something of a mystery since the Lobbying Disclosure Act, 2 USC sec. 1601, itself contains similar exclusions. Restating those exclusions may be presumed to have had some purpose other than confusion, but, again, this is not clear. In any case they exclude from the EO lobbyists who were hired to engage in activities on behalf of entities that may come before the Executive Branch, including the White House itself, on those same issues.

Moreover, the Lobbying Disclosure Act contains this exception: “The term “lobbyist” means, in English, someone retained to engage is “more than one lobbying contact” but not including “an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a 3-month period.” So, again in English, that means that a “lobbyist” is not subject to the EO at all if work for a particular client represented less than 20 percent of the total time devoted to that client’s interests during any quarterly reporting period, a test that could easily be met by a multitude of true full-time lobbyists with many clients. And, obviously, if one is not a “lobbyist,” there is no need to register as one under the Disclosure Act and there is no bar to working for the White House or one of the Executive Departments on any issue. This seems to leave a gaping hole for conflicts of interest in appearance if not in reality.

On top of those loopholes, the EO itself contains a formal waiver provision enabling “The President or his designee” to “grant to any person a waiver of any restrictions” otherwise contained in the EO. It was those waivers that the GEO wanted to see and that for some time the White House refused to disclose. After exchanges of challenging letters between the White House and GEO, the White House relented.

The Obama administration routinely released waiver information for similar actions from a restrictive policy on hiring of former lobbyists for Executive Branch work, but, for reasons that defy understanding, the Trump administration initially declined to follow suit. The objection to the jurisdiction of GEO seems absurd on its face and a needless resistance to transparency, another self-inflicted wound, in keeping with a general tendency of this administration to work in the shadows. And another reason for the electorate to distrust the motives of Trump and his enablers.