Tag Archives: Constitution

Most Disturbing Statements Since Trump Was Elected

According to a recent report in Axios, cited by CNN’s Chris Cillizza, Donald Trump’s personal attorney, John Dowd, recently said the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” http://cnn.it/2AUcpAw  That extraordinary claim has now been repeated in even more stark terms by the President (not mine) himself: ““I have absolute right to do what I want to do with the Justice Department,” Trump asserted in a widely reported interview with the New York Times. My emphasis on “absolute right,” because this is the type of claim made by dictators and kings. Under the Constitution there are few, if any, absolute rights and the right to break the law is certainly not one of them.

By extension, Trump’s principle leads to this: since every governor is likely the chief law enforcement officer in a state, the governor cannot obstruct justice under state law by interfering with the independence of the state office of attorney general.  And, since the police chief is the chief law enforcement officer in a city, he cannot obstruct justice either, no matter what he does or no matter what inspires him to act (e.g., here’s $100,000 to stop my friend (or me) from being prosecuted)? Or is it the mayor? Or both? Does Trump really believe that all these people are above the law and may interfere in investigations and prosecutions that could lead to themselves as targets? If that is the state of things, and you add up how many powerful people that involves, with command over the military, National Guard and police, you have the makings of tyranny and dictatorship.

Most likely, Trump never thought about the implications of his statement which he probably sees as applicable only to himself in his capacity as the supreme being.

Mr. Dowd, in his capacity as Trump’s lawyer, is entitled, of course, to make what are sometimes called “extension of law” arguments to support his client’s position, even if, as I believe is true here, the argument is pure poppycock. It is fundamental that a statement (read “expression of view”) made in one context may be harmless but pure poison if said to the wrong person or in a different context. Is the President merely expressing his opinion when he says to the head of the FBI “I sure wish you would let the Flynn thing slide,” and then fires the Director when he does not comply?

One might have pause over this in light of the supporting statements of Harvard Law Professor Alan Dershowitz (disclosure: I studied First Year Criminal Law under him). Dershowitz, however, as smart as he is, is not infallible. His position reminds me of some of the ultra-fine point-making for which law school classes were notoriously famous and are fine in an academic setting. In the real world we inhabit now, it proves way too much to say that the President of the United States is essentially immune from the law against obstruction of justice.

Dershowitz seems to be saying the President is “merely” exercising his Constitutional authority when he, for example, countermands a potential criminal prosecution or, for another, pardons himself or pardons targeted members of his staff even before they are charged with anything. He argues that no president has ever been charged for doing so. So what? Perhaps Special Prosecutor Mueller will be the first. There is always a first time and Trump seems primed to be it.

Obstruction seems just the kind of “high crime” that the Constitution’s impeachment provision was intended to expose to sanction by Congress and by law enforcement after impeachment succeeds.

This “I am the law” approach to governance is precisely what the Founders of the country were trying to overcome in fashioning a constitutional republic of laws, not of men. It was the essential lawlessness of the King of England, whose decrees were final and not subject to question, that the Founders intended to prevent when the office of the President of the United States was created with a provision for impeachment of the President for “high crimes and misdemeanors.” For a short, but incisive, treatment of this subject, read Impeachment, A Citizen’s Guide, by Cass Sunstein. [Note: I expect to discuss that, and some related books, in a forthcoming post.]

Mr. Dowd’s/Trump’s view that the President is both “the law” and “above the law” poses a threat to every American, including those who still think, if that word can be used here, that Trump is infallible. In this country, no one is immune from the reach of the law for crimes committed, including obstruction of justice.

No doubt an impeachment action based on obstruction of justice, collusion with enemies of the country, would end up in the Supreme Court pretty fast because Trump will never yield no matter how compelling the evidence. So, Mr. Mueller, the world turns its eyes to you. Whenever you’re ready. Bring it.

And Happy New Year.

Visiting the Holocaust Museum

For years, I have resisted visiting this museum, in part because I had read many books detailing the history of the Nazi takeover of Germany and its aftermath and, in part, because I knew how jarring it would be. When my wife announced Sunday morning that she had acquired time-entry tickets for that afternoon, I relented.

The museum is indeed a jarring experience. The faces of the visitors, many quite young and many very old, tell the tale. Seeing the photographs and films while hearing the voices of the men and women who perpetrated the most monstrous genocide in world history is not for the light-of-heart. The cruelty of it cannot be described; it has to be seen. Even then, it sometimes does not register because it is so alien to how normal human beings see other human beings.

There are many lessons to be taken away from the experience of the Nazis in Germany. I won’t pretend to be competent to state them all. Others have done so in words more memorable than anything I can offer. But I can, I think, draw one observation that, for me, was the dominant idea and the dominant sensation that impressed itself on me as I passed through the origins, the implementation and the end results of the Nazi worldview. This sensation does not diminish the horror and the outrage of the Holocaust in any way, but aside from profound revulsion at what was done in the name of racial purity, there is a practical lesson that has immediate relevance to the United States and indeed the entire world.

I am speaking of complicity. Understated somewhat in the museum displays is the historical reality that much of the world, and in particular and notably the United States, turned its back on the Jewish refugees who were trying to escape the Holocaust spreading across Europe in the 1930s. And there is the historical reality of appeasement, the belief that by giving Hitler some of what he wanted, he would stop the ruthless expansion toward world domination that he so clearly stated was his ultimate desire. Intelligent people concluded that another war with Germany was to be avoided no matter what, that Hitler could be sated with a few more pieces of territory, a few more subjugated populations. The world largely stood by and watched Germany roll over much of Europe. Citizens of some of the victim countries actually welcomed the Nazi invasion. By the time the United States actively intervened, it was almost too late. Millions died, millions, while governments around the world failed to act.

Now let us turn to the present. I have written about this before. See http://bit.ly/2qoDaYE. Visiting the museum brings the message into sharp focus. Many of the same tactics used by Adolf Hitler and the Nazi Party are routinely employed by the President Trump, his acolytes in the White House and his appointees in the major Executive Department agencies. Trump’s attempts to delegitimize the independent media, calling them the “enemies of the people” are right out of Hitler’s playbook. That may seem harsh or over-wrought but the history is there to be seen. Holocaust-deniers are just like climate science-deniers in their capacity to block the truth in favor of more satisfying mythologies.

I won’t belabor this. I don’t know that Trump plans to replace the Constitution, but then again, we have seen him refer to it as “archaic” and “really bad for the country.” He has railed at the courts for decisions he opposed and generally appears to see the Constitution as an unjustified obstacle to his political agenda. He has many apologists who are quick to respond that “he really didn’t mean that” or “he is just frustrated; pay attention to his actions, not his words.”

But his words are his actions. Many people said the same things about Adolf Hitler’s words. Then they saw his actions and remained silent or joined the Nazi bandwagon.

The real point is that people of good will who value their freedom must not be complicit in Trump’s undermining of American institutions such as the free press. Silence is complicity as much as active cooperation. Both silence and active cooperation made Hitler’s rise to power possible. They have the same effect in our time. It is the moral responsibility of every person who believes in the ideals of the American way of life as enshrined in the Declaration of Independence, the Constitution and the invitation inscribed on the Statue of Liberty to actively resist the Trump administration’s cynical effort to undermine those ideals.

You can do this by subscribing to the information sources at MoveOn.org, ACLU.org, Indivisible.US, PeoplePower.org, Dailykos.com, TakeCareBlog.com or any of the other major authenticated sources of real information about what the Trump administration is doing to undermine the quality of the air you breathe, the water you drink, and the freedoms you enjoy as an American. Sign the petitions, participate in the marches, stand up and fight back! If you know someone who voted for Trump, reach out to them and politely, without judgment or acrimony, try to reason with them using the facts and truths that are readily available. And then VOTE in 2018. There is no other way. Do not be complicit by your silence and your inaction.

As you leave the Holocaust Museum, you pass a wall inscribed with these words of Martin Niemöller, a Protestant pastor who openly opposed Hitler and spent seven years in Nazi concentration camps:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Nothing more to say.

A TRIPLE THREAT TO DEMOCRACY

The Washington Post ran three editorials today that should have the rapt attention of all thinking Americans.

The first editorial observes that Donald Trump represents an existential threat to American democracy by his raising the specter that his victory will lead to criminal prosecution of his opponent, Hillary Clinton, because, as President, Trump will be able to order the government to prosecute and jail any enemies of his choosing. I am confident that Ms. Clinton is not intimidated by these threats. She is well-schooled in the tripartite legal system that divides power among three branches of government and thereby restrains the unlimited use of power by any one branch, including the Executive.

These threats should nevertheless give pause to anyone who remains undecided at this late stage of the campaign. As the Post notes, this type of threat conflicts with the peaceful transition of power in a democratic society governed by a Constitution and not by a dictator. I suspect that Trump made these extreme statements mainly to pander to his core constituency who seem to be obsessed with thoroughly examined but unproven claims of email malfeasance while Clinton was Secretary of State, enhanced now by Trump’s repeated claims that the only way he can lose the election is if the voting is rigged. There are, of course, many other reasons that Trump could, and should, lose the election but from his “rat in the corner” position, striking out at the “rigged system” is probably the only strategy left to him.

I suspect that his defeat, which seems more likely every day, will lead to the vast majority of his core supporters just going home unhappy but equipped with new “evil forces” and conspiracies to complain about. They can take some solace in their moral certainty, removed from any connection to reality, that the “system” was against them and they never had a chance.

On the other hand, if Trump loses, will he, as the Post editorial implies, call on his “movement” to rise up against the United States in rejection of the outcome? This group of Americans appears to be impervious to facts, motivated by anger and fear and heavily armed. Mr. Trump should be very careful how he proceeds, lest he trigger events that will escalate beyond his control. ­­­By his own admission, he is not much interested in book learning, but he should at least scan Title 18, section 2381, wherein the definition of Treason is set out. Then he can start a new “reality” TV show, as some have speculated is his real objective.

The second editorial addresses the issues that the Post thinks should be covered in the final debate Wednesday night. It’s a really good list that includes many of the hugely important issues that will face the next president. It includes the nuclear threat from North Korea, Pacific Rim expansion by China, the failure of democratic movements around the world, cyber warfare, the endless dispute between India and Pakistan and others of similar gravity. It would be refreshing, though perhaps too much to expect even from a veteran like moderator Chris Wallace, that the debate will stay on track on the issues. For once, just once, the moderator should, I suggest, act aggressively to stop the personal attacks, evasions and mis-directions that have characterized the prior “debates.” Wallace should absolutely demand that the candidates not talk over each other, not interrupt and respond to the questions asked. Unless he does that, we likely will get just another harangue by Trump of his campaign talking points, which to date have precious little to do with substantive issues.

Finally, and equally disturbing, the Post editorial board has called out Sen. John McCain for his recent statement that “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” This promise, from a man who claims his word is his bond, is essentially a reprise of the Republican congressional leadership’s oath that during Barack Obama’s first term in office, the main Republican goal was to defeat his agenda and to prevent him from gaining a second term. The Republican Party thus became the “party of no” and resisted almost all efforts to achieve bipartisan compromises on anything of substance, thereby, among other things, shutting down the federal government for a period of time.

­­­It appears that for the Republican Party, ideology trumps (forgive me) all other considerations. Sen. McCain is sending the message that more congressional deadlock lies ahead if a majority of the American people elect a president not of that Party’s choosing. This is a different form of political blackmail than Donald Trump’s normal fare, but it is blackmail nonetheless and Sen. McCain’s legendary deeds on behalf of his country cannot excuse it.

Time grows short. The army of Trump supporters has consistently shown that it not only has no objection to Trump’s constant lies, misogyny and other crimes against human dignity, but they in fact approve of them. They don’t care what the facts are – they just want to bring the house down. If we are not careful, they may succeed. This is the most important national election in modern times. If you agree with me, urge everyone you know to vote for Hillary Clinton. If some of them have to hold their noses, so be it. That will be the least of their worries if Trump succeeds.