Transcripts, Quids & Quos and Evasions

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I continue to see media stories describing the document released by the White House that purported to be a “transcript” of the conversation in which the president of the United States tried to pressure a foreign leader into investigating a domestic political rival (Joe Biden). The same stories often use the term “quid pro quo” which translates roughly to “something for something” or “this for that.” I remain mystified and angry that experienced people whose job it is to communicate continue to misuse terms that are essential to understanding the stories they are reporting.

While I doubt any media people will read this blog post or care much what I have to say, but that has not stopped me before and it will not do so now. You might say I am writing this without the expectation of a quid pro quo. But it would be far better not to say that. Here’s why.

First, what is a “transcript?” This is not particularly mysterious, though there are different meanings for different situations. For example, in education, a transcript is “an inventory of the courses taken and grades earned of a student throughout a course of study.” https://bit.ly/2O04dD4 Anyone who has an education will likely recognize this one.

In the world of law, however, “transcript” refers to something quite specific. In fact, the proper relevant term is “transcript of record” which is a “typed or written copy of the court reporter’s notes that have been taken down during a trial.” Black’s Law Dictionary at https://bit.ly/2CrYqR7

This is a precise record of what is actually said, word for word, during the proceeding for which a transcript is being made. It is typically recorded as the events occur by a trained “court reporter” who either types into a special machine that produces tapes from which the “transcript” is printed or in more modern environments the reporter speaks into a device that records the reporter’s words. To assure precision and accuracy, the parties to the proceeding may review and propose corrections to the “transcript” before it is considered “final” and no longer subject to dispute.

Transcripts in the above sense are routinely created in “courts of record” and in depositions and formal arbitrations. A “court of record” is usually a trial court or higher but does not typically include small claims court and traffic courts where no verbatim record is created.

Note that I referred to “parties” in the plural in referring to the review/correction process. Regardless of the positions of the parties or who asked that the deposition be taken, both sides get to review the record and disputes are settled by the court. The result is that a “transcript of record” is as accurate as humans can make it: taken down and produced by disinterested professionals, evaluated by partisans and ultimately determined by a neutral authority.

You get the idea, I’m sure. A “transcript” as regards an event is a precise, accurate record of exactly what was said by the participants. Anything less formal is not actually a “transcript” and lacks the credibility of an official transcript.

For example, if I sit in on a telephone call and make personal notes of what I heard, then have someone type up my notes, no “transcript” results. Instead, there is just a typed version of my notes and there is no process by which the accuracy and precision of my note-taking is assessed and corrections made by independent parties with an interest in accuracy and precision. In this situation there is no “transcript” of the call. Even if a disinterested professional is involved in taking notes, the absence of independent review of the resulting document deprives the document of the credibility to be given to a “transcript.” In the case of Trump’s call with the president of Ukraine, there is an additional problem that a “translation” was required, adding an additional layer of uncertainty to the end product.

It follows, therefore, that the document released by the White House of Trump’s “perfect call” with Ukraine President Zelensky is not a “transcript” and should not be referred to as one by the media or anyone else. There is no basis for the conclusion that the document has the precision and accuracy of an authentic “transcript.”

At the same time, since the White House obviously believed the president’s claim of perfection for the call, the document that was released may reasonably be presumed to be the best version, from Trump’s point of view, of what occurred. As has been reported everywhere but Fox News and Breitbart, the document is clearly damning and proves that Trump is once again lying about what transpired. Numerous parties who listened in on the call have testified under oath that Trump unquestionably demanded an investigation, and public disclosure thereof, of a domestic political rival.

This brings us to the question of “quid pro quo.” The media and Republican defenders of Trump have obsessed over whether the call involved a “quid pro quo.” Here, again, we must refer to the environment of law, where this term is often used and has a well-understood meaning. As stated in Black’s Law Dictionary (https://bit.ly/36LZOMu),

What for what; something for something. Used in law for the giving one valuable thing for another. It is nothing more than the mutual consideration which passes between the parties to a contract, and which renders it valid and binding. [emphasis added]

In simple English, as applied to the Trump-Zelensky call, Trump was demanding a public declaration of an investigation of his chief political rival in exchange for the release of aid funds that Congress had previously appropriated. Still in simple English, Trump said, “if you want the money released, you must announce the investigation I want.” What for what; something for something. You do this for me and I’ll do that for you. Clear as a bright sunny day.

Reading the document released by the White House, the “best version of the call per Trump himself,” it is plain that Trump demanded something in exchange for something else. A “favor,” his word, for a favor.

The media would do well to stop calling the White House document a transcript. It is not a transcript. At best it is a summary of notes about the call. It has not been vetted by independent authorities or any outside party with an interest separate or independent from Trump.

As for the quid pro quo, why use a Latin term when simple English will do? While quid pro quo is easy to understand, the use of Latin here will only obscure the issue for many readers. Some short-hands are useful but this one, in this setting at least, is not. It is helping the Trump administration muddy the public understanding of the illicit bargain Trump sought to achieve.

Finally, there is this question, as yet unanswered by the White House: why were the records of the Trump-Zelensky call secreted in a top secret computer? If they are exculpatory, why haven’t they been released? The answer, I suggest, is that the original records would be even worse for Trump than the doctored notes falsely presented as “transcript” to the world.

Republican Children of the Corn Violate Law Helping Matt Gaetz Find His Blankie

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It seems this was inevitable. Backs against the wall, unable to defend the conduct of their president on the substantive merits, the Republican Party decided, apparently with the president’s foreknowledge and approval, to disrupt the lawful proceedings of House investigative committees looking into the president’s conduct through an “impeachment inquiry.” https://bit.ly/2NaUiKn  In simple English, the House committees are collecting evidence through sworn testimony of witnesses with information about, among other things, Trump’s attempt to extort Ukraine into investigating Trump’s current principal Democratic opponent, Joe Biden.

Roughly two dozen Republican House members forced their way into the hearing, leading to a five-hour delay in testimony that was about to start when they interrupted. They apparently left their lunch boxes and blankies outside but chose to take their cell phones into the room, violating House rules about bringing electronic devices into a SCIF (Sensitive Compartmented Information Facility). The Republicans don’t care, of course, about national security being compromised when it comes to protecting Trump from accountability.

The Republicans would have you believe that they have been excluded from the investigation, but the reality is that Republican members of the six investigative committees have the right and are exercising that right to be in the room during the taking of evidence. The full list of committees is: Financial Services, Judiciary, Intelligence, Foreign Affairs, Oversight and Reform and Ways and Means. The fact of six committees’ involvement likely arises from the breadth of the possible violations of multiple laws by the president and his enablers.

Rep. Swalwell reported that the majority of Republican members of the investigating committees in fact come into the room to complain about the process, then leave before the evidence is taken, all the while complaining that the evidence is not being taken in public. Likely they are afraid that Trump will find out they listened to evidence about his crimes and take away their lunch money.

Given that Republicans have not in fact been excluded from the investigation, what was the purpose of the multitude of law violations by Republican members of Congress, beyond the obvious publicity stunt and suck up to Trump who had just complained they were being too timid? Most likely it is the product of Donald Trump’s desperation that his scams of the American public and multiply treasonous conduct are being exposed and may yet lead to his removal from office and indictment for obstruction of justice, among other things. Maybe they just thought they could somehow stop the whole process by creating the threat of daily interventions. Maybe they didn’t know what the hell they were doing. Someone may have said: “We can’t just sit here and do nothing while Democrats compile an irrefutable case of repeated illegal conduct by our lord and master Trump, so let’s storm the castle! And they all yelled “Yeah, let’s storm the castle!” And, lacking pitchforks and lighted brooms and unable to find a castle, they grabbed their cell phones and stormed into the SCIF.

Putative Congressman Steve Scalise then lied to reporters outside the room: “Voting members of Congress are being denied access from being able to see what’s happening behind these closed doors, where they’re trying to impeach the president of the United States with a one-sided set of rules, they call the witnesses.” What he would have said if he uncharacteristically respected the truth was that some voting member of Congress were denied access because they don’t sit on the committees conducted in the investigation. This is not hard to understand, except maybe for Scalise and his brave band of castle stormers.

I am not making this stuff up. The article cited above includes this statement from Rep. Bradley Byrne of Alabama (where else? – sorry Alabama, but you elected these people so you own them):

“When we walked in, they looked dumbfounded and the room just came to a stop. And we lined up along the wall or sat in chairs expecting them to do something. And after several minutes, Adam Schiff got up and just walked out. And while he was walking out I said, ‘Don’t go.’”

Oratory of that caliber will almost certainly make the history books used in Alabama schools, if any, in the future, if any. If you want a model for a forceful entry, absolutely line up along the wall and sit in chairs. Powerful stuff.

The Republicans reportedly believe that the information and transcripts should be made available to all members of Congress, unlike the underlying evidence in the Mueller investigation that they claimed completely exonerated Trump.  Logic is not Republicans’ strong suit. My response is: be patient, folks; remember that patience is a virtue and virtue is its own reward; the evidence you claim you want to see will be coming out in due course. Then, I bet, you’ll be screaming that disclosure was an unjustified assault on the president’s good character.

According to reporting by The Hill,

The move by House Republicans comes a day after another witness, top diplomat William Taylor, testified that Trump withheld military aid to Ukraine to pressure the country to conduct a pair of investigations — one into 2016 election hacking, the other into the family of former Vice President Joe Biden — that might have helped Trump’s reelection campaign next year.

Looks like Mr. Trumpski is in a bit of a bad spot here. The more evidence comes out, the more he squawks, but he has produced no evidence of his own to counter the sworn testimony of many people who became aware of his attempt to leverage Ukraine into finding dirt on Joe Biden and his family. Screaming “I’m innocent” is not going to save him from the political guillotine.

 

Mind the Words You Read – Part Two

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A compelling third example of this issue may be found in the OZY Presidential Brief of October 17. https://bit.ly/2MV1HgE This email newsletter also reports on the Trump-Pelosi encounter:

Trump Has ‘Meltdown Over Syria Criticism

President Donald Trump and House Speaker Nancy Pelosi accused one another of having a “meltdown” during a tense meeting yesterday about the U.S. troop pullout in Syria. Trump, at least, had reason to fume: Amid growing bipartisan anger, two-thirds of House Republicans voted for a resolution condemning his decision, which left the formerly U.S.-backed Kurds open to attack from Turkish forces. Democratic leaders ditched the meeting after Trump reportedly called Pelosi a “third-rate politician.”

The key words, that I bolded in the quote, are “at least,” a usage that in this context clearly implies that Pelosi had no reason to be upset. The deck is subtly stacked in favor of Trump, by suggesting that Trump’s unhappiness about the House impeachment is warranted in some undefined way. The unstated further implication is that Pelosi, the woman in the room, was being unreasonable. The language reinforces the title of the article, further supporting the message that Trump, and only Trump, was justified in having a ‘meltdown,’ removing the implicitly negative implication of the title as regards Trump.

The OZY piece was not labeled “Opinion.” It was presented as a news story. There is no particular reason to think that OZY supports Trump. The writer of this piece may not even be aware of the effect of the language choice.

Finally, another example from the New York Times. https://nyti.ms/32CAV3h Its title is: What, Exactly, Is Tulsi Gabbard Up To? The subtitle is “As she injects chaos into the 2020 Democratic primary by accusing her own party of “rigging” the election, an array of alt-right internet stars, white nationalists and Russians have praised her.” [bolding added]

Clearly there is a lot to unpack here. For present purposes, however, let’s just focus on what is being conveyed. The implication is that Gabbard is “up to” something big — accusing the Democratic Party of “rigging” the primary election. If true, that’s pretty important. Having been thus primed for it, you would expect the presentation of compelling evidence to support those claims.

The “chaos” supposedly being injected by Gabbard consists only of her threatening to boycott the next Democratic debate [she ultimately participated though her poll numbers barely scraped by the threshold]. Other than her apparent attraction for white supremacy groups, detailed in the article, there is no apparent reason to credit her with injecting anything into the debate process. Indeed, “Both Ms. Gabbard and her campaign refused requests for comment about her support in right-wing circles or threat to boycott the debate.” If she won’t talk about it, why is the press making a “thing” of it?

The article speculates that “There is potential upside for Ms. Gabbard: Drawing more attention could energize her donors and perhaps attract more supporters, extending her candidacy’s life span.” But the “attention” seems to be from the media, not from the Democratic Party. In attacking the media and suggesting election rigging, we are seeing a familiar refrain used repeatedly by none other than Donald Trump himself. In a masterful deployment of self-contradictory double-speak and exaggeration, the article says “In a moment marked by fractured politics, Ms. Gabbard’s nontraditional positions are a major part of her appeal for voters seeking to break out of polarized partisan divisions…. she is representing viewpoints that draw support from an array of people in the United States as well as abroad.” How one sees supporting someone claiming election rigging as way out of polarization remains a mystery. And, I remind you, she is polling barely above 2 percent, just enough to squeeze into the debates she is decrying.

But most disturbing is that the article describes the embrace of Ms. Gabbard by the Russian media that were involved in the documented and indisputable 2016 election interference, then, in language reminiscent of the Mueller Report, takes her off the hook with “but there is no evidence of coordination between these networks and the campaign itself.”

Here I remind readers of the truism that “the absence of evidence is not evidence of the absence.” And, whether or not Gabbard’s campaign is in cahoots with Russia, it’s more than a little curious that, using some of the same tropes as Trump in 2016, she has attracted the same support from an adverse foreign power and has not rejected it. Then, the article cites Franklin Graham, described as an “influential evangelist” saying, “This whole thing the Democratic Party has done by putting forward this false idea that there was collusion between Russia and Trump has hurt our relations in a huge way with the Russians.”

That’s the Donald Trump party line. Isn’t it strange that Gabbard’s ardent supporters are repeating the Trump mantra in defending her political position? Is she a Democrat or a Republican? It’s hard to tell from articles like this and her political platform. The article recites her attraction to Middle Eastern dictators, another trait she shares with Trump.

So, you may be asking, where is the evidence of election rigging that was the chaos Gabbard supposedly was injecting into the Democratic debates? There is none, at least not in this article. I remain puzzled as to the true purpose of this article. I understand that it has a byline but that, by itself, does not disqualify it as an attempt at providing news. If we accept it as an opinion piece anyway, what is the opinion? Gabbard is in cahoots with Russians to influence the 2020 election? There is evidence, though not conclusive proof, of that. There is also much “equivalency,” albeit in the form of endorsements from Republican enablers of Donald Trump, like Franklin Graham. It’s a mighty curious thing, all this circling of Republican and Russian wagons around the marginal, barely-alive candidacy of a woman with few actual credentials warranting a nomination for the top executive leadership job in our government. Am I being too hard on her? I don’t think so. It was easy for her to reject the support of David Duke of KKK fame but she still sounds like a Republican and a Trump Republican at that.

********

As consumers of political reporting and commentary, we must remain constantly on guard against priming, framing and other psychological biases that work their way into the language of journalism. Taken to extremes, these techniques amount to ‘gaslighting’ which is defined as,

a tactic in which a person or entity, in order to gain more power, makes a victim question their reality.… Anyone is susceptible to gaslighting, and it is a common technique of abusers, dictators, narcissists, and cult leaders. [https://bit.ly/2Ep8mJV]

Over time, gaslighting erodes the public sense of what is trustworthy and leads to false equivalencies being accepted for blatantly untrue claims such as Trump’s claim that there were good people on both sides of the conflict in Charlottesville between pro-Nazi and anti-Nazi groups. Gaslighting eventually wears down people’s resistance to lying. Google “effect of indifference in politics” and you’ll begin to get an idea of how serious this is.

Mind the Words You Read – Part One

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I have just finished reading The Testaments, the follow-up novel by Margaret Atwood to the dystopian The Handmaid’s Tale, published in 1985. Two sentences in it stopped me cold with the depth of its insight. Atwood wrote:

“Where there is an emptiness, the mind will obligingly fill it up. Fear is always at hand to supply any vacancies, as is curiosity.”

In some fundamental way, those insights explain everything. And they serve as a warning – fail to educate the people and the resulting void of understanding will fill itself up with falsehoods, fantasies and many other dangerous concepts. Idle minds are the devil’s workshop and all that.

As I thought more about how that insight works in the modern world, a couple of related thoughts emerged. First, we have believed that at least the developed countries left the Dark Ages behind and embraced the ideas of the Enlightenment. We chose science as the most valid way of explaining the physics, chemistry and, increasingly, psychology of our behavior. At least that is what I was taught a hundred years ago when I was in school.

Second, our ability as humans to evaluate the world around us, including the behavior of other people, is largely a function of our ability to communicate with each other using, mainly, language and, secondarily, mathematics. If we could not do so, our chances of understanding and acting to sustain our common interests would likely fall to near or actual zero.

Third, we now understand that most human behavior is driven by the unconscious part of the mind and that it must be this way to enable us to perform even the most mundane tasks (chewing gum while walking and taking notes while listening to a lecture come to mind). That principle in turn means that the unconscious biases we all have are constantly impacting our ability to understand what is going on right in front of us. Confirmation bias, for example, defined as the tendency to filter new information so that what is believed supports what was previously believed, makes it hard to change someone’s mind, including our own. We tend to be very attached to what we “believe” is true. And don’t try to tell me otherwise.

Finally, then, I began to be more and more disturbed by what I was seeing on both “sides” of the political aisle in media stories about the “facts” of political life in the United States. If you’ve traveled by train or subway, you are familiar with the rote warning to “mind the gap between the train and the platform.” In the present matter, the warning would be “mind the gap between the words you read and the truth.” Fail at that and you could lose your country.

Allow me to elaborate.

An October 9 Wall Street Journal article was entitled “Trump Opens Door to Cooperate With House Impeachment Probe.” A better example of framing (another implicit biasing technique) and click-bait would be hard to find. The title is provocative by suggesting Trump had done an about-face on the House Impeachment process that he had repeatedly and viciously attacked.

The contrary truth, however, comes quickly in the form of the opening sentence that lays out the reality that Trump’s asserted willingness to cooperate was highly conditional:

“…. if the investigation was authorized by a House vote and if Democrats commit to following rules he views as fair, a sign of potential cooperation a day after the White House said the inquiry was unconstitutional.”

The article goes on to explain that Trump was adding a

“caveat to the White House’s eight page letter a day earlier that described the president’s broader refusal to cooperate with the investigation, citing the lack of a vote authorizing the probe amid other purported shortcomings.”

This, I suggest, whether intended or not, created a condition of cognitive dissonance in which the reader was primed to read about Trump’s acquiescing in an impeachment process when the actual story was that he had attached to his “offer” conditions he knew or had reason to know had already been rejected by House leadership.

Perhaps this slanting is to be expected from a conservative publication like the WSJ, but what about the venerable New York Times? (Disclosure: I subscribe to the Sunday Times and follow it daily through Apple News)

Someone on Twitter reported this NYT headline: “Someone Had a ‘Meltdown’ at the White House. Pelosi and Trump Just Disagree on Who.” My search of the NYT website did not find that title but it is not uncommon for the web version of newspaper articles to differ from print. And changes are often made online after initial distribution. I believe, therefore, that the source of the Twitter report was this: “Inside the Derailed White House Meeting,” by Katie Rogers. https://nyti.ms/2IZlwlT

The initial focus of the article is whether Trump’s insult of Pelosi was “third-grade politician” or “third-rate politician.” I’m not sure there is a difference or why it matters. This was the President of the United States addressing the Speaker of the House in a meeting to which she and other lawmakers were invited at the White House. To be clear, there is also a disagreement as to who asked for the meeting, but Trump indisputably made clear at the outset that he was a reluctant participant.

The meeting went downhill very quickly. Among other things, Trump took the occasion to condemn the military skill and performance of his own former Secretary of Defense, James Mattis. Trump, attaining a new height of megalomania, claimed that he, Trump, “captured ISIS” in one month. Eventually, Speaker Pelosi told Trump that “all roads with you lead to Putin.” Since the report is admittedly second-hand, it is a bit confusing as to the precise sequence of events, but eventually Pelosi and Steny Hoyer, the House majority leader, walked out of the meeting. The article reports the subsequent hurling of insults by both sides in more or less equal measure.

Thus, the article largely sticks to the facts, but I would be remiss if I didn’t report the subtitle for the piece: ““I hate ISIS more than you do,” President Trump said. “You don’t know that,” Speaker Nancy Pelosi replied. Here’s the rest of their exchange.” The implication is that Trump was acting like a child on the playground: “Teacher likes me more than you, ha ha.”

Judge that for yourself. The point is that the title reported on Twitter suggested an equivalence between two largely equal scenarios, each party insulting the other, but the article, again assuming it’s the right one, by setting out the key elements of the meeting makes clear that there were not two equal scenarios. The use of the word “just” in the Twitter version of the title minimizes what occurred and implies that nothing of significance happened, just a fair disagreement about who was more upset.

In fact, the article recounts unprecedented (likely) name-calling by the President of the country, using childish and belittling language, to the leader of one of the two houses of the bicameral legislature. It also records the slavering obeisance by the White House Press Secretary who claimed that,

“The president was measured, factual and decisive, while Speaker Pelosi’s decision to walk out was baffling, but not surprising,” Ms. Grisham said in a statement. “She had no intention of listening or contributing to an important meeting on national security issues. While democratic leadership chose to storm out and get in front of the cameras to whine, everyone else in the meeting chose to stay in the room and work on behalf of this country.’’

I understand one cannot look too deeply into political gesturing like this, but this is a classic case in which the imperative that White House staff overcompensate for the childish and erratic behavior of the president leads to ridiculous outcomes. The Press Secretary is simultaneously baffled and not surprised. She can read the mind of people like Nancy Pelosi [“She had no intention….”]. And, of course, the “important” meeting that “everyone else” stayed for has had no meaningful output, at least none I could discover.

[continue reading in Part Two of this post]

What I Want from the Media

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My memory may be faulty but as I recall the years of the Vietnam War and after for some time, you knew that in the early evening the “news” would be on television. There were, of course, only three networks but you did have some choice. My favorites were Walter Cronkite and commentator Eric Sevareid on CBS, but there were other significant “anchors” and analysts that I often chose to watch. By and large, Cronkite told you what happened that day around the world. There were news “reports” from the field often accompanied by film footage, especially during the War.

The news shows weren’t very long but you generally felt you got the gist of important developments since the prior evening. And, in the meantime, you also had access to newspapers that were published in some places twice a day or even more. In Memphis, Tennessee, where I spent my formative years, we had a morning paper, the Commercial Appeal, and an evening paper, the Press-Scimitar. The latter ceased publication in 1983, long after I had departed the city, but the Appeal still publishes seven days a week.

Cronkite and Sevareid were both news geniuses. Cronkite was considered one of the most trusted newsmen in the country, and Sevareid, in a few minutes of prepared remarks, would provide incisive thoughts to help you understand the events of the times. In later years I encountered Sevareid several times eating lunch in a restaurant near my Washington law firm’s offices. He seemed usually to dine alone and I never worked up the nerve to interrupt his solitude. I was pretty sure he was still thinking deeply about what was going on in the world.

Of course, I understand that times have changed. We have the internet and 24-hour cable TV “news” shows like CNN. And 24-hour propaganda shows like Fox News. Many great newspapers have failed as a result; all are challenged to remain viable in the era of “free” news around the clock.

What troubles me the most is that the cable news shows that you can turn to while the networks continue showing the mind-numbing garbage that they have contracted to broadcast do not report the news of the day. Instead, they seem to focus on one or two stories and repeat the coverage of them until something else they deem worthy of coverage happens. If you watch CNN on any given day, you will see that anchor after anchor repeats the “Breaking News” mantra that the prior anchors have already reported, calling on many of the same field reporters to “being us up to date on what you have learned.” There follows the same story that the prior segment covered, often involving the same questions and the same answers.

The other favorite of CNN and its competitors is the panel of “experts.” Back in the day, we had Sevareid; now we have panels of experts, again often repeated in subsequent segments. Worse yet, the cable shows appear to believe they are obligated to be “balanced” in their coverage, which has the effect of making them complicit in the false equivalencies that the Trump administration shills are pitching. Cronkite and Sevareid were interested in “equivalencies.” They saw their jobs as reporting the truth. After being fed an endless stream of lies about the combat outcomes in Vietnam, Cronkite famously had had enough and said so on the air.

It was a breathtaking moment in journalism and, I believe, in that moment changed the opinions of millions by telling the truth. He didn’t then bring on an administration shill to argue that the reports of combat outcomes were in fact correct. No panel of experts spent hours each day arguing about it. And no one like Kellyanne Conway was given a voice over the network to spread administration propaganda. A news show was about reporting news of the day, often on a variety of subjects, not just repeating the same story all day until a new “breaking news” story showed up.

So, call me old fashioned and unrealistic. It won’t be the first time. I suspect there are many like me who are sick to death of having “news” presented as a panel discussion or, worse, a “debate” with administration shills and complicit politicians claiming that down is up and lies are truth. I doubt there is any way to return to the “good ole days” of news broadcasting but I continue to hope that at least some news figures will begin calling out the lies and propaganda when it is presented.

We have an important election coming up in 2020, an election that may well determine the fate of the American republic. Meanwhile, there is going to be an impeachment inquiry and investigation of the president and his henchmen/women who have violated multiple laws and their oaths of office. It is crucial that the American people get the truth about these events. CNN, MSNBC and the others need to rethink their approach to news reporting before it is too late. If they help Trump get re-elected, by continuing to serve as vehicles for his disinformation campaign, he will turn on them with a vengeance. He will then be a lame duck and will have nothing to lose, nothing to restrain his authoritarian propensities now so fully on display.

Whistling by the Graveyard

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On August 25, 2018, the New York Times published a “News Analysis” of Donald Trump’s treatment of the American legal system:  Trump’s War on the Justice System Threatens to Erode Trust in the Law, by Michael D. Shear and Katie Benner. https://nyti.ms/2oINv1V

The piece opens with this:

In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his associates, Mr. Trump is directly undermining the people and processes that are the foundation of the nation’s administration of justice.

The result is a president at war with the law.

Further, and presciently,

The president’s public judgments about the country’s top law enforcement agencies revolve largely around how their actions affect him personally – a vision that would recast the traditionally independent justice system as a guardian of the president and an attack dog against his adversaries.

The comment ends with this:

“No matter when this all ends, Trump will have caused long-lasting damage to the ability of the Justice Department and the F.B.I. to execute on its mission…. He is sacrificing our public safety and national security on the altar of his own ego.” [quoting Christopher Hunter, a former FBI agent and prosecutor]

Certainly, the authors could not have precisely foreseen how Trump’s approach to governance would lead to the present circumstances, but their overall impression of the direction of Trump’s presidency was stunningly accurate.

Now, perhaps emboldened by what he convinced himself was “exoneration” by Mueller and thus a free hand going forward, Trump has been caught out trying to use a foreign power to influence the 2020 election. And, the evidence is clear, Trump and his loyal team of lawyers, who were also allowed to skate by Mueller, have clumsily tried to cover up the president’s crimes by secreting the records in a computer system designed to contain only coded high-security information. Indications are that this is not the first time they have done this. As we have come to expect, Trump responded to all this by threatening his “enemies,” attacking the press and deflecting by inventing others’ offenses that he purports to expose.

All of that was simply too much for the Speaker of the House, Nancy Pelosi, who called for an impeachment inquiry and had the votes to do it. Trump responded by declaring that Pelosi was no longer the Speaker of the House. This from a man who publicly swore a solemn oath to protect and defend the Constitution of the United States.

Also, as we have come to expect, Republican enablers in and outside the White House rushed to Trump’s defense with all manner of false and hysterical claims. While the wagons were being circled, more news emerged, including that Secretary of State Pompeo was listening on the Trump-Zelensky call even though he indicated otherwise in television interviews. Trump is demanding to “face my accuser” and has said that the White House is trying to determine the whistleblower’s identity even though the governing law provides for protection of that individual’s identity. Trump supporters have offered a large cash award for anyone who will conclusively identify the whistleblower. Trump has not repudiated them for this action, arguably putting the whistleblower’s life in danger.

And so it goes. Meanwhile, the Editorial Board of the New York Times and the editors of the St. Louis Post-Dispatch have both called for Trump to resign. Likely, other major newspapers will join the list. What goes around ….

The Times if, of course, still trying for “journalistic balance,” by giving print space to defenders of Trump to make their case. The same Sunday that the Times printed “The Allegations Are Grave. An Election Is at Risk. The Founders Were Clear,” a half-page op-ed appeared, entitled “Impeachment Is an Act of Desperation,” by Christopher Buskirk, publisher and editor of the very conservative website American Greatness. Buskirk’s argument is the reason for the title of this post.

Buskirk posits that by proceeding with an impeachment inquiry into Trump’s conduct, the Democrats are playing into the Republicans’ hands and assuring Trump of victory in 2020. Why? Because (1) “we’ve all been down this road before” and nothing Trump has done or said so far has affected his support that “has bounced around in more or less the same range since he took office,” (2) what about Hunter Biden in Ukraine? (3) impeachment “success requires broad public support,” and (4) Democrats can only beat Trump by focusing on the issues.

The corollary to the first point is that “there will be no resignation, there will be no conviction in the Senate.” That is probably true, but it misses the point that Trump’s conduct is so egregious across a broad range of areas and issues that a well-presented impeachment case in the House will serve the Democratic agenda in 2020 as well or better than any candidate on her/his own. It also ignores the Democratic sweep of House seats, and return to a majority there, in 2018. Finally, to claim that Trump’s popularity has not been affected by his prior egregious acts in office ignores the reality that his “popularity” is very low. These are not the likely elements of a winning position.

Buskirk’s second point is the classic Republican trope transplanted from Barack Obama (the usual target of Trump ego-angst) to Joe and Hunter Biden. But, no matter what the Bidens may have done in Ukraine, and so far there is no evidence of wrongdoing, a point made repeatedly by past and present Ukrainian officials with reason to know, it would not justify Trump’s attempt to arm-twist a foreign government into investigating a domestic political opponent. Except for self-defense against physical threats, American law does not support a defense that “someone else broke the law so I can too.” This is essentially the “Hillary’s emails” defense and it’s worthless. As Yogi Berra famously said, it’s déjà vu all over again.

Buskirk’s third point – impeachment success requires broad public support – is, I believe, simply wrong. Impeachment requires only a smartly executed process of compiling and presenting for public viewing the evidence of corruption in the multiple scenarios in which Trump has acted as if he were above the law. But even if Buskirk’s claim is right, we are in early days and it’s premature to conclude that the public won’t get on board as the evidence of Trump’s venality and illegality is presented. Again, this assumes the presentation is properly done. I have argued repeatedly that this must not turn into another political show with politicians sitting on the House committees trying to act like practicing prosecutors. Develop a list of “points to be proved” and leave the questioning to experts that know how to do it.

Finally, the fourth point that defeating Trump requires beating him on the “issues,” is an attempt to divert attention from what is at the root of the current mess. Trump has willfully violated a serious federal law designed to protect American elections from foreign interference and then tried to cover it up. Moving the records to a secret computer for coded security information is functionally equivalent to Richard Nixon’s deletion of 18.5 minutes of tapes involving a crucial meeting between the President and his Chief of Staff H.R. Haldeman, the revelation of which ultimately destroyed Nixon’s support in the Senate and forced his resignation prior to being impeached and removed. Trump’s crimes are extremely serious and they follow a thoroughly documented showing of at least 10 prior instances of criminal obstruction of justice in the Mueller Report. He was only saved from indictment by Mueller because the Department of Justice, dubiously, has opined that a sitting president may not be indicted.

Buskirk argues that impeachment of Trump now is just “political theater” and “more Washington psychodrama.” He claims the voters are simply uninterested in the crimes Trump may have committed and that they “just want to know what Washington is going to do for them.”

Methinks Buskirk has it backwards. Trump’s most ardent supporters seem only interested in political theater. The proof is evident in the endless tapes of Trump’s rallies that have little or nothing to do with “issues” and everything to do with performance. Trump is a star in that crowd because … he’s a star. He gives voice to their anger and fear and they see no irony in the fact that he is rich and unlike them in almost every way. He does not really share their fear and anger; he puts on the show they came to see and they love him for it even though the hard evidence is that he has done virtually nothing to make their lives better.

And that is the ultimate point. Even if Buskirk’s assessment regarding the “issues” is correct, it fails to reckon with Trump’s massive and ongoing failure to deliver on most of his electoral promises. If indeed it is only “issues” that will motivate the voters, and Trump’s illegal and immoral conduct of the Office of President and multiple violations of his oath of office are not “issues” of interest or force in the election, Trump’s performance still fails. Most of his governance actions are for “show” to impress his political base but it is not a stretch to show how he has failed to deliver.

So, is impeachment a mistake? I don’t think so. Democrats have been handed a weapon by Trump that needs to be used with surgical precision. We have a criminal in the White House, a person who does not respect the office he holds or guiding principles of the government he swore to serve. It should not be hard for the Democrats to show this to the electorate in a compelling way, to motivate their own base to go the polls in 2020 and, if Donald Trump still sits in the White House, to send him packing.

Going Along to Get Along

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Since the news of Donald Trump’s latest criminality is racing ahead faster than I can keep up, I’m just going to engage in a little homespun philosophizing for a moment. The subject is “inevitability.” By that I mean the inevitability that some things that start badly will end badly.

Trump, we now know (Mueller) was elected with the substantial help of Russia. To that extent, at least, he is an illegitimate president. The majority of the American electorate, by a margin of about 3 million votes, wanted someone else to be president. Someone who, while far from ideal and with some troubling history, had shown for many years a high degree of intelligence, commitment to important human values and a willingness to serve her country, if not perfectly, at least with a serious commitment to protect its interests.

The person who was elected was not demonstrably qualified to be president. He was qualified, if at all, to be what he was: a real estate tycoon, staked by cash from his father, who had managed to bankrupt casinos, an airline, and a multitude of other businesses bearing his name. He had a reputation for dishonesty, for refusing to pay his bills, for using the legal system to bully and intimidate others and a reputation as a misogynist who was buddies with the likes of Jeffrey Epstein. His life was so exposed to public view that there was no doubt about his character and values, made all the clearer by the revelations in the Billy Bush Access Hollywood tape. Many Republican stalwarts of the day, such as the US Senator from South Carolina, Lindsey Graham, spoke of him in the most derogatory terms imaginable: “a race-baiting xenophobic religious bigot” who is “putting our soldiers and diplomats at risk” and “empowering our enemies.” https://cnn.it/2DjJHdC Another Republican leader of presumed integrity, Mitt Romney, described this person as “so not smart.”

Nevertheless, with help from Russia, Donald Trump rose to the top of the manure pile that was the Republican nominee class. Further aided by the Electoral College, a vestige of another time and country we thought had passed into history, Trump vanquished all the Republican contenders and won the general election. His most ardent supporters didn’t care whether he was qualified. They were against his opponent and liked that he “told it like it is” even though independent fact-checkers found that Trump lied multiple times a day. It took only a few days for his prior critics, Graham and Romney among them, to undergo a complete transformation. Romney went begging for a Cabinet job (rejected) and Graham became one of Trump’s most enthusiastic cheerleaders. When Robert Mueller produced conclusive evidence that Trump had committed at least 10 significant acts of criminal obstruction of justice, Graham said he didn’t care about that “obstruction of justice stuff.” https://bit.ly/2mAPxAt

In office, Trump’s conduct has matched his résumé. His speech is full of bigoted and often incomprehensible hate rhetoric. His policies have been rejected by the courts in a multitude of cases. His cabinet appointees proved to include a large number of grifters in it for the perks and unqualified incompetents with no idea how to manage a large federal department. Many have resigned in disgrace. There have been more indictments and jail terms handed out in Trump’s administration that in any modern presidency except Nixon (who resigned when impeachment was imminent) and he’s only in his third year.

The evidence is now in, and Trump has admitted most of the essential actions involved, showing that Trump tried to get the help of a foreign power to undermine his (currently) main 2020 challenger, Joe Biden. The evidence of Trump’s illegal conduct was apparently recognized by multiple staff and thus the records of the call were moved to a coded computer intended for other purposes on the “direction of White House lawyers” or other “White House officials,” which may be the same thing in this case (to be determined).

This is not, of course, out of the ordinary. The Mueller Report, about which I published a series of too-long analyses in this blog, documented multiple undisputed cases in which White House staff were directed by Trump to engage in acts constituting criminal obstruction of justice. While Mueller was unduly impressed with the failure of some of those staff, including attorneys, to carry out all of Trump’s obstruction directives, I showed there were cases in which they clearly did what Trump demanded. Mueller’s failure to indict those people remains unexplained and inexplicable.

This, then, is the central theme of the Trump administration. An entire collection of Republican elected officials, comprising a majority of the Senate, and a number of White House staff, including attorneys, have actively participated in the crimes and the coverup of those crimes.

Why do they risk everything for this?

It’s hard to fathom. For some, no doubt, it’s just the money. Or it’s just keeping the job. For some, it’s possibly the innate resistance we all have to uncertainty and major changes in our lives. For some, I’m sure, there is a misguided attachment to some ideology that they convinced themselves is being promoted by this president.  In all cases, it’s easier, much easier, to go along to get along than to do the right thing. It’s hard to give the advice no one wants to hear. If, as in Trump’s case, the boss has a short fuse, is easily angered and has made clear that personal loyalty to him is more important than virtually anything else, it’s hard to get yelled at, called out and humiliated in front of colleagues for not being a “team player,” “putting everyone at risk” and being called a rat. It’s very hard to be the odd-man-out when a big challenge is on the table and everyone else is either deferring to someone else or simply agreeing to avoid being called out. Going along to get along is the easy path. Standing on principles is very difficult.

Thus, going along rules the day. With each affirmation, each failure to object, the pressure to stay that course mounts until, in all likelihood, the possibility of taking a stand for principle, for the right thing, doesn’t even arise any more.

These outcomes, which are commonplace in society and entrenched in Trump’s history and his performance as president, are, I think, the inevitable consequence of electing someone who is fundamentally not competent to do what is probably one of the most difficult jobs in the world. And that inevitability is all the more assured when the mitigating influences are stilled.

It’s not just the Mitt Romneys and Lindsey Grahams and Mitch McConnells who are responsible, though they certainly bear huge responsibility. It’s also the voters who stayed home; it’s the voters who said “if it’s not Bernie, I won’t vote or I’ll just vote for Trump;” it’s the voters who didn’t think about the question of qualifications at all and just thought it was cool that Trump called his opponents by insulting nicknames and threatened to ban Muslims and immigrants from the United States. It’s the voters who still think a woman’s place is … nowhere. It’s the voters who are racists and religious bigots. It’s the inevitable result of all those actions, inactions and indifference.

There was, I believe, no chance that Donald Trump’s presidency could have been successful by any reasonable standard. It was clear early on that the Republican Party establishment would go along to get along; that the types of people Trump admired and appointed to cabinet and high government posts were often unqualified ideologues, in it for themselves and no one else. It was clear that nothing of substance was going to change. Inevitability was driven by the root problem of Trump’s incompetence, dishonesty, immorality and insecurity, all of which was there to be seen.

We now have arrived at the denouement of this sad, pathetic saga. Trump has admitted to seeking the aid of a foreign power to help him win the 2020 election. He participated in a coverup, adding to the multiple violations of fundamental American law of which he is guilty. He was aided in this by multiple White House staff who were going along to get along.  The time has come for a reckoning.

As I have written elsewhere, the proceedings in the House of Representatives should move forward with deliberateness. The relevant committees should hold multiple hearings to set out the evidence not only about the Ukraine episode and coverup but also the evidence of criminal obstruction of justice from the Mueller Report. The evidence should be presented by experts, and hostile witnesses should be cross-examined by retained expert trial counsel.

Above all, take the time to do this right. The American public needs to understand all of what happened, presented in a way that ordinary people can understand. DO NOT allow another Lewandowski style hearing to occur. If the committees are going to do their jobs, insist that testimony be presented under oath and if questions are refused without claims of 5th Amendment privilege, arrest the witnesses and hold them in contempt of Congress. This is the job the American people expect and deserve from their elected leaders. The time has come for a reckoning.

There is much talk in the press about whether a majority of Americans support impeachment. That, I suggest, is the wrong question. This is not a political popularity contest whose outcome should depend on ever-shifting polls. Impeachment, rarely used because it is so serious, is about holding to account a lawless regime that threatens to undermine the democratic republic that was created by the Constitution. If the case is properly made, the majority of Americans will support the action. The Republicans in the Senate will undoubtedly act as they have always acted, supporting the regime no matter what it does. So be it. Make the case for the voters to see. Do it professionally and soberly in keeping with the gravity of the task.

It will be hard for politicians, especially those running for president, to give up some of the limelight but it is essential that they do so in the interest of bringing an end to the massive and unrelenting corruption that has infested the Trump presidency from its inception. The time has come for a reckoning.

 

Choose Your Antidote – Double Down with ACLU

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You are being poisoned. So are your children and grandchildren if you have them. And the rest of your family and your friends. Slowly, of course, by the withdrawal and/or reversal of many of the most important environmental regulations adopted in the past few decades. It’s going to take a while for the effects to manifest throughout the population but you can be sure they will manifest in due time.

Why is this happening? Because the Trump administration is trading away protection of the air and water you need to prosper in return for … money. Money for himself, his family and the super-rich Republican oligarchy that supports whatever Trump wants. Trump is the handmaiden of the extractive industries, mainly petroleum and coal. Lacking a functional education and identifiable moral framework, Trump claims that non-fossil-fuel-based energy sources, like windmills, cause cancer and that electricity will cease to flow when the wind stops blowing.

Another element of the poisoning is the infestation of the country’s politics with ideas last prominently heard during the post-Civil War Reconstruction and the sorrowful Jim Crow period of American history and the period of the Southern Strategy in the 1950s and 1960s. Usually, the racism and related ideas behind these movements were masked in some kind of rhetoric to smooth over their true nature. Trump sees no need for that and his true-believer supporters routinely reward him for what is deemed to be his “lack of political correctness.” The underlying corruption and conflict with universal American values in Trump’s rhetoric and policies cause no discomfort for his ardent supporters.

The ultimate antidote for the poison that Trump has unleashed is, in the upcoming 2020 election, to vote out of office both Trump and his legion of jack-booted Republican know-nothing supporters in Congress and elsewhere. In the meantime, however, it is important to resist the poisoning of national politics and policy represented by Trump’s relentless determination to undermine the physical and moral health of the country while enriching himself, his family and the sycophantic Republican billionaires that benefit from his policies.

Everyone likely has one or two favorite resistance forces to which they contribute. I do not argue that anyone should stop supporting Planned Parenthood or any of the dozens (hundreds?) of worthy organizations that in their separate ways push back regularly against the evil that Trump represents. We contribute to some of them as well.

What I am urging is that everyone who sees Trump’s administration as I do should add a contribution to the American Civil Liberties Union and do it now. The reason is straightforward. The money goes to support legal actions against the Trump administration’s innumerable violations of law and the Constitution he swore an oath to uphold. The ACLU wins most of its cases and is an irreplaceable force against the unprecedented and destructive legal malfeasance of this administration. Even when it doesn’t “win,” the ACLU is often able to compel changes in policies that mitigate the impact of ill-conceived and unsupportable policies and practices that harm millions of people. The vast reach of ACLU’s legal resistance to the Trump administration is listed at https://www.aclu.org/about-aclu and https://www.aclu.org/action/

Money given to ACLU goes to actionable causes that have results. Trump likely hates the ACLU more than any other resistance organization because their successes in court have so effectively frustrated his plans to run over the legal system to get what he wants.

The ACLU just sent me a renewal notice for my December 2019 membership turnover. I am going to renew it now and double the contribution to help, in a small way, to fight the fights that must be fought right now. Then, in 2020, we’ll vote the bastards out of office.

 

Omertà – The Vow of Silence

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Once again, it is reported that putative president Trump has “ordered” certain citizens to either limit or completely refuse to respond to questions from a duly authorized congressional investigating committee looking into, among other things, Trump’s conduct of the office of president and probable instances of illegality as documented in the recent report of the Office of the Special Prosecutor (the Mueller Report). This is not the first time, not is it likely to be the last, as Trump desperately employs every tactic possible to prevent a true accounting of his crimes.

Rep. Jerry Nadler, the chair of the House Judiciary Committee, reportedly has said that Trump’s position is a “shocking and dangerous assertion” and that

 “The President would have us believe that he can willfully engage in criminal activity and prevent witnesses from testifying before Congress – even if they did not actually work for him or his administration.”

Yes, that is exactly what Trump is doing. Trump appears to believe he’s still running a reality TV show.

On the face of it, Trump’s demands for omertà, the mob vow of silence regarding talking to law enforcement, are just another example of multiple instances of his criminal obstruction of justice. It appears that his lawyers have advised him that this strategy can be based on the principle of “executive privilege” that was analyzed and interpreted narrowly in the seminal case of United States v. Nixon, 418 U.S. 683 (1974), in which President Nixon tried to defeat a congressional subpoena for the Watergate tapes. Trump’s position has more kinship with the Mafia version of omertà than to any legally sound claim of executive immunity from congressional oversight.

For one thing, in the current situation, Corey Lewandowski, the target of one subpoena, never worked in the White House. At a minimum, that reality makes the extension of executive privilege to Lewandowski’s actions and knowledge a bridge too far. As for testimony by former White House aides Rob Porter and Rick Dearborn, Trump has asserted “absolute immunity” to their responding to any and all questions about their time in the White House.

This seems on its face to be a losing position. United States v. Nixon pretty well disposed of the idea that executive privilege was “absolute” and that a president could prevent the production of evidence by blanket assertions of privilege. At best Trump may buy some time with this stalling tactic but is almost certain to lose in the courts, assuming, of course, that the House Judiciary Committee does not simply accept this rejection of American constitutional principle.

Trump has not thus far asserted any other basis for preventing the testimony of former aides. He has not, for example, claimed that they signed non-disclosure agreements. Even if they had done so, I suggest any such agreements would be void on their face as against public policy. Trump may not have figured it out yet, but he is neither a king nor a CEO of the United States. As putative president, he is subject to the constraints implied by the separation of powers that was created by the Constitution. He cannot, therefore, expect to shield the public’s business from scrutiny by demanding that public servants who happen to have worked in the White House refuse to testify in response to oversight by congressional committees.

Other than executive privilege or private agreements, no other basis appears possible to permit the president to order private citizens to refuse subpoenas properly issued by congressional committees. What then should happen if, as expected, Lewandowski, Porter and Dearborn elect to tow the Trump line?

I suggest that the next steps should be to hold the three witnesses in contempt of Congress. If, as I believe to be true, their arrest is provided for in the criminal code, they should be arrested. I understand they are in a difficult place, caught between two warring forces in a contest for the preservation of democracy in America. They are, however, making a choice in following Trump’s demands. They could choose to do otherwise and act as good citizens providing the knowledge they have in response to questions from the investigating committees. If, as appears to be the case, they elect omertà, they should face the consequences of their choice.

A contempt of Congress citation should also be issued against the president. Likely he cannot be arrested while holding office, but his improper use of executive privilege to shield his administration and himself personally from congressional oversight should be met with every indicia of formal legal force that the circumstances will support and let the courts sort it out.

We have reached the point of no return regarding Trump’s abuse of his office. The congressional staff memo about which I posted yesterday clearly supports impeachment for the obstructive conduct of this president. No reason appears for treating him with the proverbial kid gloves. He is itching for a fight and the House investigative committees should give it to him. Nothing is to be gained by timidity in the face of Trump’s continued rejection of democratic and legal norms and constraints on his behavior. His legal position is untenable. The time to act aggressively against his administration has arrived.

Impeaching a President

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

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

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

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

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

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

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

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

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

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

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

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

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

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