Tag Archives: Constitution

It’s Because He Was President

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Members of the media continue to discuss how extraordinary it would be for the Department of Justice to indict a former President, and how disruptive it will be if he is indicted for the multiple crimes he was openly and repeatedly committed. Even while trumpeting (sorry) the line that no one in the United States is above the law.

I want to state that it is precisely because Donald Trump was president that he must be brought to justice, the same as any thug or other criminal. It may be unprecedented but being unusual or even one of-a-kind is no excuse for allowing a criminal to walk free. This is particularly true when that criminal continues to spread the same blatant lies that led to the January 6 insurrection. Trump repeats his falsehoods about the 2020 election multiple times a week. He actively endorses the candidacies of election deniers around the country.

Now he has gone the last mile. He has stated that the [false] claims of election fraud justify disregarding all the rules and regulations governing elections, including the Constitution itself. https://bit.ly/3iqMZkU and https://bit.ly/3HeSkGB and https://bit.ly/3ulG1QY

There can be no clearer indication that Trump is not an American patriot but is a self-interested traitor. He promises to continue promoting his lies about the 2020 election even as he runs in the 2024 presidential election. He literally wants to be “installed” as president, leading, obviously, to the removal of the elected President Biden, the replacement of the entire leadership of the federal government and, effectively, the collapse of American democracy. That is what Trump demands and that is why he should be indicted now.

The fact that most of Trump-endorsed election deniers were rejected in the 2022 midterms is irrelevant. That outcome may suggest that to a large extent the voters have had enough of election-denial, but the money keeps rolling in to finance Trump’s legal fees and his announced candidacy for President in 2024. Grotesquely unqualified candidates like Herschel Walker continue to be promoted by Trump and by the Republican Party and are considered serious threats against candidates like Rev. Warnock in Georgia.

Despite everything that has happened since Trump took office, MAGA Republicans and so-call Christian Fundamentalists continue their fanatical loyalty to him. They claim that the events that led to two impeachments (also unprecedented) and the insurrection were all fake. You can show them a video of the Capitol attack and they will say (1) it never happened, (2) it was staged by paid actors, (3) it was really antifa, not Trump supporters, or (4) they were just patriots fighting to correct the theft of the election (for which no evidence has ever been produced).

Trump’s supporters still say that his phone call to the Georgia Secretary of State demanding the “finding” of just enough votes, by exactly one, to give Trump the win was nothing to be concerned about. Same for his attempt to extort from the president of Ukraine an investigation of his political opponent in the 2020 election. And on and on.

Trump’s crimes are so numerous and his uses of the judicial system to stall and deflect so common and well-financed that a degree of indifference may have set in through the body politic. See MEDIAite at https://bit.ly/3Vt9Bjt  Whatever that may be, the fact remains that Donald Trump, while President of the United States, attempted to overthrow the government by preventing the transfer of power to his duly elected successor. His financial crimes and other abuses of power pale in comparison to that unprecedented attack on the very democratic process that elected him.

And that is the reason he must be prosecuted. Trump violated his oath of office, abused his power, and led an insurrection attempting to end democracy. If he had succeeded, it is likely we would never have seen another real election in this country.

So, members of the media, please just stop with the “OMG, it’s unprecedented that a former president would be indicted.” The lack of precedent simply highlights how grotesque Trump’s conduct was and is. I see now that some of his lawyers have testified before the criminal grand jury and that’s good, although we don’t know, and likely never will know the extent to which they avoided telling the truth by citing attorney-client and/or executive privilege. It is well-established law that such privileges cannot be used to shield communications involved in the planning and execution of crimes, but Trump has succeeded many times in deflecting and deferring consequences with similar claims.

There are some suggestions that Trump’s evasion of responsibility for his crimes is running out of legal room, but he still has allies in Congress and on the Supreme Court who may yet come to his aid. Whatever that future may hold, nothing should stand in the way of indictments for Trump’s many crimes. The most important, of course, is his instigation of the January 6 attack, but there are many others as well. The government should focus on the one or two that have the clearest evidentiary basis and that would certainly include the Capitol assault. Make clear to all future political leaders, in both parties, that crimes in office will not be tolerated. We are approaching the two-year anniversary of the Capitol attack.

It’s time. Past time. Indict him, arrest him, and try him.

Republican Traitors Last Try to Subvert the Constitution

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I am sorry to start the New Year 2021 on this note, but I am unable to escape the news that Republicans, led by a senator Hawley from Missouri, will attempt yet again to undermine the constitutional system for electing national leaders by urging Congress to reject the 2020 election result. https://bit.ly/34YJecO This move, reportedly to be endorsed by at least 140 House Republicans, is, of course, doomed to failure.

It could be seen, indeed has been seen even by a handful of Republicans, as just an act of political theater to appeal to Donald Trump’s political following and to serve as the “first hat in the ring for 2024” in case Trump himself is unwilling or unable (in prison?) to run again. It could be seen that way and thus dismissed as just another act in the political play the Republicans have been staging since Trump first declared the election was going to be rigged against him. It could be seen that way even as Trump himself took steps, through the Postal Service and with the help of compliant Republican governors, to suppress Democratic votes around the country. It could be seen that way even though no complaints of election-rigging have been presented as to the down-ticket Republicans who won elections in states Biden won.

One could go on and on about what “could be seen” as harmless politicking by a group of people with no principles other than winning-at-all-costs, a group who readily align themselves with looney conspiracy theories propounded by QAnon, whatever that is. Harmless politicking by a group of unprincipled politicians who brought dozens of lawsuits around the country claiming, without evidence, that electoral fraud was responsible for Trump’s defeat and who lost all but one (insignificant) such case. Harmless politicking by a president who continues to claim that he won the popular vote, that he won states where multiple recounts found that he lost, and on and on. Harmless politicking by a group of spineless sycophants indifferent to or, more likely, intent upon inspiring acts of violence against, for example, the Governor of Michigan and others.

But, in my opinion, that is not the right way to see this. The correct way is to recognize and, in due course, to act upon this reality: a large group of elected officials from across the United States have chosen to adhere to the blatantly false, phantasmagorical ravings of a desperate and, possibly, mentally impaired, president and are threatening to overturn the lawful and proper election of that president’s opponent. These acts are, I submit, acts of treason against the United States.

To be clear, I use “treason” here in the colloquial sense, not the strict legal meaning that we are often reminded is extremely narrow and almost impossible to prove. https://nbcnews.to/3o6Uyvc Treason as defined in the Constitution, Article III, section 3 is only this: “… levying war against [he United States], or in adhering to their enemies, giving them aid and comfort.” The U.S. Code [18 U.S. Code § 2381] implements that provision this way:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

I use “treason” instead to refer to overt acts designed to, and with the potential to actually, subvert the Constitution, leading inevitably to regime after regime refusing to recognize “elections” and continuing in power with the support of the military and police despite the actual desires of the population, until, eventually, power is determined solely by who has the support of the military. Then, of course, the United States will have ceased to exist in any meaningful political or cultural sense. It will join the legions of other failed countries where the people do not get to choose their leaders. Democracy will be finished, here and, very likely, everywhere. This version of “treason” is good enough.

Political theater and political stunts are commonplace in our past. We understand that a senator standing alone with the dictionary, encyclopedia or recipe book and blathering on and on to prevent legislation from being voted upon is “just filibustering,” something permitted in some circumstances by Senate rules that enables a single senator to halt the progress of legislation even if everyone else in the United States wants it to pass. Nothing like political theater or “stuntery” is going on here. No, the president of the United States and a large group of elected Republican congressmen and senators are trying to use blunt force to simply discard the results of the 2020 election and declare Donald Trump the winner (and possibly president for life).

This action has been labeled, correctly in my view, as a “threat to the republic.” See Michael Gerson’s piece in the Washington Post (https://wapo.st/3oaRmi4),

In the cause of his own advancement, the senator from Missouri is willing to endorse the disenfranchisement of millions of Americans — particularly voters of color — and justify the attempted theft of an election. He is willing to credit malicious lies that will poison our democracy for generations. The fulfillment of Hawley’s intention — the ultimate overturning of the election — would be the collapse of U.S. self-government. The attempt should be a source of shame

Gerson goes on to note that Donald Trump,

rose to prominence in the GOP by spreading racist lies about President Barack Obama’s birthplace. Now, he is making the acceptance of conspiratorial myths about Biden’s legitimacy into a test of GOP fidelity. And Trump has made room in his party for even more extreme versions of his method, involving the accusations that Democratic leaders are pedophiles: “Stop the steal” and QAnon are on the same spectrum of vile lunacy. This is the type of politics that Hawley is enabling — a form of politics that abolishes politics. A contest of policy visions can result in compromise. The attempt to delegitimize your opponent requires their political annihilation. And a fight to the political death is always conducted in the shadow of possible violence.

I part company with Mr. Gerson regarding what should be done about this. Certainly, he is right in calling for rejection of Hawley’s self-serving treachery. Maybe, though I doubt it, he is right in suggesting we praise the handful of Republicans who, as of today anyway, indicate dissent from the Trump-at-all-costs version of politics that Hawley promotes. Republicans, like Trump himself, are all too transactional in their support, so that the likes of Romney, Murkowski and some others still vote with Trump/McConnell almost all the time. They should get no reward in public or political acclaim for doing the self-evidently right thing now.

In my view, what I have chosen to call treason should become a standard label associated with those who have made their choice of Trump over the country, over democracy and over commitment to freedom and opportunity for all Americans. It should be part of their identification in the media along with party and geographical affiliation. Their names should reside in history alongside Benedict Arnold. They should be reminded regularly in the House and Senate chambers that their traitorous conduct has been noted and will never be forgiven. And, of course, every available resource should be devoted to removing them from office as soon as possible, through election and, in appropriate cases, criminal investigation and prosecution.

The time for politics-as-usual is over. To be clear, I am not suggesting a Democratic political vendetta but an aggressive and definitive legal response to overt acts plainly intended to overturn an election judged fair by all 50 states and multiple courts (including judges appointed by Trump). The fact that the effort is being executed in the halls of Congress does not excuse it. There is no excuse. Brute force politics must be met with a brute force legal response. I leave the details to others with the skill and knowledge to do it. Enough was enough long ago.

 

 

 

Pulling on the Right Rope – ACLU

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We are coming up on a momentous event in the form of the 2018 midterm elections. They offer the real possibility of overturning the Republican control of Congress, and thus ending the subordination of Congress to the president and the return of the checks and balances that were expected by the Founders to prevail indefinitely.

The grand scheme of the Constitution was a tripartite balance of authority and power in which each of the three pillars of the republic — Congress, the Executive and the Judiciary – would interact is a way that prevented any one of the pillars from overpowering the others. The Founders were not, of course, expecting a situation to arise in which a single political party would gain control of all three branches of the federal government and in which the members of that party would place the interests of that party above the welfare of the country. But that’s what we have and it is that which threatens the continued existence of the democracy that makes the United States a country of unequaled achievement.

Of course, the journey of American democracy has not been straight and pure. We fought a bloody Civil War to end slavery, struggled to end Jim Crow, and struggled to establish racial equality and opportunity in education, voting, employment, human relations and all the rest. Then we elected an African American man to be president. Twice. Many of us thought we had, at long last, moved past our past. We were wrong. Trump’s ascendancy has exposed the ugly underbelly of the nation’s bigotry, fear and cruelty. You know the story or you wouldn’t be reading this.

So, what to do? We don’t want to fight another civil war. Obviously, everyone needs to vote and help someone else vote. I have harped on this repeatedly and I won’t repeat it here. Instead, I suggest an additional approach: look at this as an exercise in tug o’war.

On the other end of the rope is the Trump administration. We all await, with hope and apprehension, Special Prosecutor Mueller’s action on the core issue of Trump’s illegitimate election victory as a product of Russian interference in which Trump and his campaign actively conspired. There is also a large body of evidence that Trump has committed multiple “high crimes and misdemeanors” which would support his impeachment and removal from office.

None of that is going to be resolved by November and the pull on the other end of the rope is strong. Many Americans believe that Trump is an ideal executive, disregarding his serial lying, attacks on our allies and sucking up to dictators around the world. They seem to be untroubled by his attachment to Vladimir Putin and his amateurish, schoolyard bullying of private companies and foreign countries.

On our end of the rope, we have … the American Civil Liberties Union, the ACLU. Think about that name: Civil Liberties Union. Since its inception, preservation of civil liberties and enforcement of the Constitution have been the singular preoccupation of this group. Sometimes the ACLU defended the rights of genuinely and widely unpopular people or groups, but they persisted because they understood that if the rights of one are disregarded, the rights of all could be next. We simply cannot pick and choose who gets protected and who does not.

If you are like me and have at one time or another made a donation to some #RESISTANCE group, you are no doubt being bombarded by requests to sign petitions and, more importantly, to donate more. Many great organizations are doing important work to resist the Trump administration’s fear-based agenda. Common Cause comes to mind. And Everytown for Gun Safety. And many others. The question is: which rope are you going to pull on?

I suppose I am prejudiced in favor of an organization that directly and forcefully challenges the illegal conduct of the administration at every turn and that wins most of its cases. The ACLU has initiated or joined most of the major legal challenges to the Trump administration’s most outrageous acts and policies and has enjoyed amazing success.

The ACLU record is genuinely remarkable. As reported in a major article in the New York Times Magazine on July 8, in the 15 months following the Trump election “victory,” ACLU membership increased by more than four times! A huge increase in funding followed, leading to the hiring of more lawyers for the 54 affiliated offices (1 in each state with 3 in California and one each in Washington, DC and Puerto Rico). But, the article notes, there are 11,000 lawyers in the Justice Department.

Since Trump’s oath of office, the ACLU has initiated 170 Trump-related actions, including 83 lawsuits. The additional resources have enabled ACLU to start two new advocacy organizations: PeoplePower.org and Let People Vote. With the new threat to the independence of the Supreme Court, the ACLU will face even more challenges.

Therefore, I make this appeal: yes, support all political and charitable organizations whose values align with yours, but also make an additional contribution to the ACLU. ACLU enlists the aid of the third and most independent branch of government, the Judiciary, to fight the incompetence and cruelty demonstrated repeatedly by the Trump administration. So far, the administration has accepted judicial decisions as binding. If that changes, we will have entered a new and perhaps final battle for the salvation of the American democracy. Until then, and, hopefully, that day never comes, the ACLU’s direct legal actions may be the last best hope for effectively resisting the Trump administration until we can remove him from office.

 

 

Law Professors’ Letter Thrashes Trump Claim to Powers of a King

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I was in the middle of drafting a long and detailed dismemberment of the two letters recently published by the New York Times, letters written by Donald Trump’s attorneys to Special Prosecutor Mueller. https://nyti.ms/2Lg6kiQ  The letters escalate the conflict to a new and perhaps ultimate level by asserting that the president, under the U.S. Constitution is empowered to use his discretion to stop any investigation into any crimes he may have committed, including treason, and to pardon himself, along with any involved parties, including his family members, for any crimes alleged, whether or not formally charged or convicted. I was going to title it “Trump’s Attorneys Declare War on the U.S. Constitution.”

But there is no need for that because of the intervening publication in https://protectdemocracy.org/law-professor-article-ii/, widely reported, of a letter from a list of distinguished law professors that totally demolishes the Trump attorneys’ claims. If you do nothing else today, you should read the letter. To help you, I have reproduced it below, without the signatories and footnotes (in the interest of space) but you can see all of it at the link cited just above. Here is the letter:

“June 4, 2018

Donald McGahn II
White House Counsel
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Emmet Flood
Special Counsel to the President
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Dear Mr. McGahn & Mr. Flood:

We, legal scholars who study and teach constitutional and criminal law, write in connection with the President’s apparent belief that he is empowered by the Constitution to halt the Special Counsel’s investigation into alleged Russian interference in the 2016 election for any reason whatsoever, and his apparent view that he is not constrained by Congress’s duly enacted laws prohibiting the obstruction of justice. As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to “to terminate the inquiry, or even exercise his power to pardon,” and that he cannot illegally obstruct any aspect of the investigation because of these powers.[1]These views are incorrect.

First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations.[2] Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.

(1) Article II and Faithful Execution

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.

When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.

The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papersrepeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]

It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7] and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament.  Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]

These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

(2) Congress’s Obstruction Statutes and the Separation of Powers

In addition to internal constraints imposed on the President by the text of Article II and constitutional structure, the President is also externally constrained to avoid obstruction of justice.

The mistaken claim that Article II provides a complete defense to obstruction by the President rests in part on the incorrect premise that the Constitution grants him the exclusive right to exercise the executive powers. A President’s Article II powers must be read in conjunction with the restrictions the Constitution places on the federal government, Congress’s Article I powers, and the courts’ Article III powers, as well as laws duly enacted by Congress. The administration of justice involves all three branches of government.

The limitation on the President’s exercise of Article II powers is perhaps easiest to understand in the context of the Bill of Rights. For instance, it would violate the First and Fifth Amendments for the President to fire federal employees based on their race or religion. To give another example, the Due Process Clause requires that persons wielding prosecutorial power be “disinterested.”[14] The Constitution must be read as a whole; none of its provisions, including Article II, is an island.

Most importantly for our purposes, Congress can also exercise its constitutional authority to place limits on the executive.

When Congress legislates within its constitutional authority in a manner that restricts the President, the President is presumptively bound to comply with that law.[15] After all, Congress is expressly given power to enact laws “necessary and proper” for implementing the powers of the President.[16]

Congressional limitations upheld by the Supreme Court on the President’s exercise of his war powers, in a case such as Hamdan, are especially instructive. There, the Court held that Congress could specify procedures for the President to follow for trying military detainees at Guantanamo.[17] If Congress can constrain the President’s vast powers as Commander in Chief in times of war, then it can surely place limits on his conduct in his everyday role as the head of our domestic law enforcement agencies.

And, indeed, that is exactly what Congress and the courts have done.  Even though the executive branch is generally empowered with law enforcement responsibility, Congress has enacted civil service laws and created independent agencies limiting the executive branch’s power to hire and fire federal employees who enforce the law. In upholding the statute that provided for an independent counsel, rather than the Department of Justice, to investigate wrongdoing in the upper reaches of the executive branch, the Supreme Court “concluded [that] ‘we simply do not see how’ it is ‘so central to the functioning of the Executive Branch as to require as a matter of constitutional law that’ the President be understood to have unlimited control over the investigation and prosecution of potential crimes involving himself or his top aides.”[18] As Richard Pildes wrote recently, “Given the established constitutional principle that Congress can protect a federal prosecutor from the President’s domination in these type of cases, Congress can certainly constrain the President’s power in more limited ways . . . including by making it a crime for the President to act with a corrupt intent to stymie or shut down investigations of the President himself and his top aides.”[19]

It is only in rare cases that the President has constitutional power that is “both ‘exclusive’ and ‘conclusive’” on a particular issue,[20] thereby disabling Congress from legislating. And it would likewise be in only a very rare case that generally applicable federal criminal statutes would not apply to the President because of inconsistency with Article II. The Constitution, after all, directly contemplates that the President (and other officers) could be subject to criminal liability for their official actions.[21]

While the President might, for example, intervene directly in an on-going criminal investigation to advance a public-interested goal concerning national security or some other consideration, it is implausible to contend that Article II overrides Congress’s obstruction of justice statutes in circumstances where the President is acting to advance “narrowly personal, pecuniary, or partisan interests.”[22]

The federal obstruction laws, with their bar on corruptly-motivated actions, apply whether the president obstructs an investigation through firing officials leading it, shutting down the investigation, ordering the destruction of documents, or dangling or issuing pardons to induce witnesses to impede the investigation. Just as the President could not use otherwise lawful firing powers in exchange for a bribe without running afoul of federal bribery laws, he is not free to exempt himself from the application of the obstruction of justice laws.

* * *

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws

We have no doubt that you take your professional roles very seriously—and we hope our legal analysis above provides some illumination as you continue to advise your client to faithfully execute our laws and to take care that those laws are faithfully executed throughout the Executive Branch.”

[Signed by 26 law professors]

Most Disturbing Statements Since Trump Was Elected

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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

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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

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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.