Tag Archives: impeachment

Donald Trump — A Gangster in the White House

1 Reply

I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

Some Notes on the “Trial” of Donald Trump

Leave a reply

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

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

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

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

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

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

What are the implications of Trump withholding testimony/documents?

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

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

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

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

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

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

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

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

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

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

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

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

****

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

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Leave a reply

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

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

As reported by Vox.com,

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

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

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

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

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

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

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

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

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

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

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

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

Profiles in Cowardice

Leave a reply

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

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

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

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

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

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

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

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

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

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

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

 

Money, Money, Money ….

Leave a reply

You hopefully recognize the lines from the movie version of the musical Cabaret in which Liza Minelli and Joel Grey sing

Money makes the world go around
The world go around
The world go around
Money makes the world go around
It makes the world go ’round

A mark, a yen, a buck, or a pound
A buck or a pound
A buck or a pound
Is all that makes the world go around
That clinking clanking sound
Can make the world go ’round

And so on, humorously, but with underlying cynicism about what motivates people to act, or not act. The full lyrics can be found here. https://genius.com/John-kander-money-song-lyrics  and a YouTube video of the movie masterpiece, here: https://bit.ly/2rVMplk

We’ve been seeing a lot of recent press reports fawning over the large contributions haul that Donald Trump has accrued, with the suggestion, but, as usual, with no real proof, that his money-raising success is attributable to public backlash against his impeachment by the House of Representatives. Indeed, these claims are made despite multiple polls showing the majority of Americans think it’s time for Trump’s removal for high crimes and misdemeanors. A lot of the publicity about the money seems intended to demoralize Democrats.

But all this gushing over Trump’s financial haul (even assuming, improbably, he/they are not lying about the sums he’s getting, a partial truth still being a lie), the full picture is quite different.

Let’s consider what is actually happening on the Democratic side of the fundraising ledger. Politico reports, “Democrats are riding a massive surge of presidential campaign cash into 2020.” https://politi.co/39GUuvq

The current Democratic presidential contenders and the Democratic National Committee combined raised over $480 million in the last year — more than President Donald Trump’s reelection machine brought in during that time. [emphasis added]

This occurred despite the huge advantage that an incumbent president normally has, the division of Democratic efforts among an unusually large number of hopefuls and the traditional Republican advantage among the big-money donors, whose support Republicans are completely happy to accept even when it comes with major expectations of favors later to be granted. Money, Money Money ….

To be sure, there are issues for Democrats in the fundraising area, but also offsetting considerations, as noted by Politico,

Though the [Democratic] party is about to spend much of the money raised on a tough primary while Trump builds up resources to take on the eventual nominee, the millions of contributions to Democrats in $10 or $20 increments signal massive enthusiasm from the party grassroots heading into the election year.

Some of that enthusiasm may derive from the growing awareness that Trump is also stealing a lot of money from the taxpayers to cover the cost of his incessant golf trips to his properties and the cost of his political “rallies” at which he spends his time attacking his “enemies” (the press, Democrats, the Constitution, teenagers like  Greta Thunberg and the survivors of the school shootings, and on and on).

Is there anything on the horizon that should dim the enthusiasm that Democrats currently show? Maybe. It has been speculated almost since Trump took office that, if he felt his power position genuinely threatened, he would stop at nothing to save himself, including starting a war somewhere. It may be that the recent decision to kill the top Iranian military commander with a drone strike was just that moment everyone has dreaded. Only time will tell how this plays out politically. Some young people will no doubt be satisfied to sacrifice their careers and perhaps their lives to live out Trump’s fantasies about global power and “America First,” but many others, and their parents and other family members, will likely blanch at the prospect of forced military service to support a war that Trump promised would not happen on his watch.

Trump can’t go more than a few hours without tweeting about the impeachment that he claims is unwarranted. He protests way too much for an innocent man, especially one who knows he has the Republican Party in his back pocket, no matter what he does. Tweeting and starting a war won’t save him. If anything, these actions should inspire Democrats to contribute more.

The main hope is that once the in-fighting is over, the Democratic Party will unite around whoever is the nominee and the real donations will flow in. Trump will spend without limit, even if he has to drain his businesses (more bankruptcies won’t concern him at all) to do it. And, of course, he probably hasn’t begun to think of creative ways to make taxpayers cover more of his campaign costs.

Democrats better get sharp with their messaging. Trump has provided a literal gold mine of material to use against him. I understand that his so-called “base” will likely not be moved by any evidence of wrong-doing or incompetence on Trump’s part, but there are plenty of movable voters who should not be written off just because they voted for Trump in 2016. Much has happened since the last election and almost none of it is favorable to Trump. The question is whether the Democratic Party and its leadership will be as smart and tough as the Trump machine that knows no bounds of decency or honesty. That is not to argue that Democrats should emulate Trump and the Republican Party’s conduct but that it should be very focused on using that conduct against Trump’s re-election campaign. Rope-a-dope and all the rest. Just do it.

And meanwhile, prepare to keep the money, money money … coming in. It’s time also to narrow the field and get to the end game – a nominee that can not only defeat Trump but also be a leader worthy of the United States of America, a leader who can recognize the faults in our history but with the vision to create a better country for the future. We need a leader who can understand how to be strong and peaceable at the same time, who can respect differences but unite the country behind a benevolent vision that sustains everyone, not just the people already at the top.

 

F**king Liberals

Leave a reply

As previously reported, it was a cold and wet night in New York City for Impeachment Eve. That did not stop the thousands upon thousands of loyal Americans from joining a rally and march from Times Square (46th & Broadway) to Union Square (14th Street & Park Avenue). The large crowd was enthusiastic and angry. The repeated chants of “Ho, Ho, Donald Trump has got to GO!” and “Impeach Trump – REMOVE!” were rendered with gusto. There were some amusing signs but most were direct in their recognition that the occupant of the White House is a criminal and traitor to American values. Considering the weather, the turnout for this event was extraordinary. New York’s Finest were turned out in force to block streets where necessary to let the march pass unimpeded.

Meanwhile, back in the White House, the president of the United States was likely going berserk. Having already produced a tyrannical and hysterical rant letter of six pages to the Speaker of the House, packed as usual with dissembling and lies, what is left? He could break up some furniture that, after all, doesn’t belong to him so why would he care? Better yet, he could do some tweeting. I haven’t checked but I’m betting that’s what he did. And continues to do today.

Anyway, the march in New York City was remarkable. As far as I’m aware, there was no pushback from Trump “supporters” except one relatively young man with a large backpack who pushed past us on the sidewalk muttering aloud, “f**king liberals!” Otherwise, the crowd was of one mind. We were impressed to see the diversity of ages, including elderly folks walking with canes and many young adults who recognize the danger that Trumpism represents to their future.

I have set out below a small sample of photos from the event, mostly rendered in “night vision.” We were not alone, of course, as the internet is alive with photos from around the country as groups large and small went outside to show their contempt for this president and his enablers.

We all understand that the Republicans in the Senate are not going to convict Trump. Their position is that they don’t care what crimes he may have committed. He is their man and they are going to stick with him to the end. They apparently live under the illusion that they will be in control of the federal government forever and therefore there will be no day of reckoning. That is, of course, the ultimate question: will the majority of Americans accept the destruction of their democracy or will they rise up and assure that truth, justice and the American way prevail in 2020? If Impeachment Eve is any guide, the answer is YES.

Impeachment Eve

2 Replies

NOTE: Feel free to share this post with anyone you wish.

Tomorrow evening (Tuesday), rallies will be held around the country in anticipation of the House vote on the Articles of Impeachment against Donald Trump. The weather forecast for New York City (wet and cold) notwithstanding, we will be participating in the Times Square event. At last count 589 events were scheduled around the country. If you’re reading this, you can almost certainly find an event close enough to attend.

When asked what kind of government the new Constitution would produce, Ben Franklin famously said, “A republic, if you can keep it.” That is the essence of the question before us now.

While news reports indicate that the House Democrats have the votes to adopt the impeachment articles, it is important to show strength of conviction now and actively support the impeachment effort. If it’s cold where you live, add some layers, buy pocket warmers, do whatever it takes to join the thousands, nay, the tens of thousands who will be demonstrating in support of the House action to impeach Donald Trump for high crimes and misdemeanors.

If you harbor doubts about whether the impeachment is warranted, I urge you to search for the editorials of the New York Times or the many other major papers that have come out in favor of impeachment. Here is a sample of the some of those papers:

Los Angeles Times

Boston Globe

New York Daily News

Chicago Sun-Times

USAToday

Washington Post

Philadelphia Enquirer

San Francisco Chronicle

Orlando Sentinel

Salt Lake Tribune

Tampa Bay Times

The Republican arguments against impeachment have changed so many times it is impossible to comprehend in cogently logical terms the principles or concepts on which their defense is based. In the end, it comes down to “So what? Who cares?” They simply refuse to acknowledge what the White House-manufactured “transcript” says Trump demanded. They argue that he was really only interested in curing corruption in Ukraine even though corruption was not mentioned in the call with Ukraine President Zelensky.

I will not go into the details of all that at length. If you aren’t persuaded by now that Donald Trump is a corrupt violator of the U.S. Constitution, including his oath of office, and American law, nothing I can say here will persuade you.

But I will say this, that I believe is true beyond a doubt: the fate of the democracy we know as the United States of America, imperfect though it may be, is in grave danger. It is no exaggeration to compare the Republican subservience to Donald Trump and the resulting disinformation campaigns to the events that subverted Germany in the 1930s. Many serious thinkers, historians and legal experts, have warned of these dangers.

I understand that the Republican-dominated Senate is not going to convict Trump. The Senate Majority Leader has already publicly stated that the Senate Republicans will coordinate with the accused and do whatever the president wants. Senator Lindsey Graham, who formerly condemned Trump as a “nut job,” has stated that he is not even going to read the evidence before voting against impeachment. It is nonetheless vital that the evidence of Trump’s perfidy be presented for action.

Suffice to say, then, that the burden is upon us as individuals to be a little uncomfortable and to take action to challenge the narrative on which the Republican Party has chosen to stand. If we fail to do enough, we may regret it forever.

 

 

Hero of the Week

1 Reply

No, it’s not any of the Democratic politicians who brought articles of impeachment against the criminal traitor Donald Trump (because they omitted the 10 cases of blatant obstruction of justice from the Mueller Report – more about that in another post).

No, my Hero of the Week is Houston Police Chief Art Acevedo who ripped into Mitch McConnell, Ted Cruz and John Cornyn for their corrupt alliance with the National Rifle Association that the Sheriff said was ultimately responsible for the death of the officer he was there to bury [https://bit.ly/2RAg7XA]:

I don’t want to see their little smug faces about how much they care about law enforcement when I’m burying a sergeant because they don’t want to piss off the NRA.

Referring to the three senators, Sheriff Acevedo also said:

Make up your minds. Whose side are you on? Gun manufacturers, the gun lobby — or the children that are getting gunned down in this country every single day?

The Violence Against Women Act is stalled in the Senate in part because

the NRA doesn’t like the fact that we want to take firearms out of the hands of boyfriends that abuse their girlfriends …. You’re either here for women and children and our daughters and our sisters and our aunts, or you’re here for the NRA.

This is a law enforcement officer who speaks his mind. He is angry because he witnesses the real-life consequences of the Republicans’ refusal to advance legislation that might affect the position of the NRA that any restriction on access to guns is unacceptable. Cornyn is cited in the referenced article as, typically, blaming the bill’s failure to advance on the Democrats who won’t “negotiate” because they are focused on the small matter of a criminal traitor sitting in the White House with the support of, naturally, the Texas senatorial delegation and, of course, #MoscowMitch. I saw a TV clip yesterday of Cruz claiming that it was true that Ukraine interfered in the U.S. election in 2016, another example of gaslighting the nation with false narratives promoted by Russia for which zero evidence has been found to exist. Cruz cited a public statement made by an official in Ukraine to support his case, but it is blatantly obvious to any thinking person that expressing an opinion about something is not “interference” in an electoral process. Cruz is just another Trump toady.

In any case, kudos to Sheriff Acevedo for speaking the truth under the difficult circumstance of burying a fellow officer who died in the line of duty answering a domestic disturbance call involving an abusive boyfriend. The blood on NRA’s hands continues to mount. One day they will drown in it and good riddance.

Impeachment – Why and What?

Leave a reply

I recently heard that a friend of mine was confused about the impeachment process now underway in the House of Representatives. I will try here to clarify, in simple English and without legalisms, what is going on and why.

The president is currently subject to an “impeachment inquiry” started by a resolution of the House of Representatives. The “inquiry” is a fancy term for an investigation. That investigation is about the question whether the president in his dealings with Ukraine committed “treason, bribery or other high crimes or misdemeanors,” that are the criteria for impeachment in the U.S. Constitution. If impeached (by the House adopting articles of impeachment) and convicted (by the Senate finding that the asserted crimes in the articles are true), he may be removed from office. Since he is still president during this process, he cannot be indicted (according to the Department of Justice). Once removed, however, he can be indicted, tried, convicted and sent to prison for crimes committed while in office.

The investigation is being conducted through two main processes.

The first process is the gathering of evidence through testimony-under-oath by various witnesses who have been subpoenaed (ordered to appear) or have volunteered to testify. Initially, those depositions (taking testimony under oath recorded verbatim) were conducted in private sessions open to members of the three investigating committees from both parties. Despite the opportunity to be present and ask questions, Republicans have complained bitterly about what they hysterically and falsely called “secret” sessions, even to the point of storming into one of the sessions in a group, violating the security requirements that apply to the site of the depositions.

The second process is the public hearing phase, now being broadcast on many TV stations, in which the same witnesses are called to be examined in public, again by both Democrats and Republicans. Now the Republicans, including the president himself, are bitterly claiming that the hearings should not be public. In the end of their rhetoric, what the Republicans want is to shut down the impeachment process entirely. That is not going to happen.

Why, then, is this impeachment inquiry happening? The essence of it is that Donald Trump tried to use Congressionally approved funding to help Ukraine defend  against further military incursions by Russia and also the prospect of a meeting with Trump for the newly elected Ukraine president (Zelensky) to leverage Ukraine’s new leadership to announce investigations into the then-leading challenger to Trump’s re-election, Joe Biden. The immediate target of the investigation would be Biden’s son, Hunter, who was, for a period, being paid $50,000 a month to sit on the board of Burisma, a Ukrainian energy company. Republicans claim that this arrangement was part of the historic and endemic corruption that has afflicted Ukrainian political leadership for a very long time, but thus far no evidence has turned up to indicate that either Joe or Hunter Biden broke any laws.

All this is complicated by a number of details that are not central to the issue of what the president did, but they certainly illuminate his motives and explain his conduct. For one, Trump used his personal attorney, Rudy Giuliani to engage with the Ukrainians and to promote false conspiracy theories about the Biden’s and to lead a smear campaign against the sitting U.S. ambassador to Ukraine, Marie Yovanovitch. Trump eventually fired her without notice or explanation.

There are many other characters in this drama, some with long titles and long histories as diplomats in the U.S.-Ukraine relationship. Republicans have attacked many of these people because they obtained some or all of their information about Trump’s campaign against Biden through other sources. Indeed, the initial report that started all of this came from an anonymous whistleblower. The Inspector General of the Intelligence Community within the Office of the Director of National Intelligence reviewed the whistleblower’s report and found it credible and disturbing. The impeachment inquiry followed.

It is important not to be distracted by the efforts of Republicans to focus the fight on side issues, such as the identity of the whistleblower or the “hearsay” nature of some of the evidence against Trump. The most damaging evidence was direct and produced by Trump himself, in the form of a memo (not a transcript) of his call with Ukraine President Zelensky in which Trump called on Zelensky to start the investigation. There is much additional testimony from Trump appointees, like Gordon Sondland, U.S. Ambassador to the European Union, who personally participated in the leveraging of Ukraine.

The impeachment may be broadened before it’s over. One example comes from the Mueller investigation. Mueller’s final report found 10 instances of obstruction of justice by Trump and/or members of his staff and administration. These may, and in my opinion definitely should, be included in the forthcoming articles of impeachment. A second major example is playing out in the courts now – Democrats in the House are seeking  access to many of the redacted materials in the Mueller Report that may show that Trump lied to Mueller and is thus guilty of the high crime of perjury.

So, the impeachment is pretty straightforward when the Republican smoke is cleared away. Trump tried to induce Zelensky to publicly announce a Ukrainian investigation of the Biden’s to damage Joe Biden’s challenge to Trump’s re-election. The evidence on this is clear. He did it. The evidence of obstruction of justice in the Mueller Report is also clear. The House of Representatives is collecting the evidence and presenting it through public hearings. Eventually, when the hearings are completed, the House will have the opportunity to vote on “articles of impeachment.” These are like a criminal indictment. They will state the specific charges of “treason, bribery or other high crimes and misdemeanors” that the House leadership believes are the basis for impeaching the president.

If the articles are approved by a majority vote in the House prior to the 2020 election, the impeachment moves to the Republican-controlled Senate for “trial” to determine if the president is guilty of the charged offenses and, if so, what the penalty should be. This process will be controlled entirely by Republicans and, absent a massive change in positioning, Republicans will refuse to convict the president regardless of the charges and regardless of the evidence.

The question of judging Trump’s conduct in office will then move to final determination in the election of 2020.

Impeachment – Who Should Testify?

2 Replies

In keeping with their desperate and ill-conceived defense of the indefensible president, Republicans have submitted a list of proposed witnesses they claim should be called to testify in next week’s public hearings on the impeachment of Donald Trump. Not surprisingly, the list includes the heretofore anonymous whistleblower who first revealed the president’s treachery in trying to leverage Ukraine’s president to publicize an investigation of Joe Biden by withholding Congressionally-approved aid. Republicans also want testimony from Biden’s son and random others.

Of particular interest, however, is the omission of most of the administration personnel with actual knowledge of the president’s demands, including, most notably, Rudy Giuliani, Trump’s personal attorney and appointed “fixer” to replace the disgraced and jailed Michael Cohen.

How should Adam Schiff, who chairs the House investigation, respond to these requests?

The issue in the hearings – the only issue – is whether the president of the United States committed impeachable offenses. The witness list, therefore, should consist only of people who can present factual information about that question. The whistleblower is not such a person because his report of the president’s wrongdoing was obtained from others who almost certainly will testify about their firsthand knowledge of what transpired.

I think of the whistleblower as similar to a person who hears others shouting “fire” and calls 911 for the fire department to report what he heard. He can’t say there was actually a fire or any details because he didn’t see it. He heard from others who saw it and he took action to help. Therefore, in the ensuing investigation of the fire, his testimony would at most establish that someone shouted “fire,” but he could not testify about the details of the fire he didn’t see. His testimony would be essentially useless on the origin of the fire, how it spread, who fought it, etc. If he chose to be identified, he might be hailed as a hero but his information about the fire itself would be useless. An imperfect analogy, I suppose, as most analogies are, but sufficient to make the point.

The Republican demands for exposure of the whistleblower are an essential element of the only “defense” Trump has – distraction from the central and only real question: the president’s conduct in connection with aid to Ukraine and the 2020 election interference he sought from a foreign government. The same is true about the demand for Hunter Biden’s testimony. Republicans want to create a sideshow about alleged corruption in the Biden camp which, even if true (and it has not been shown by evidence from any credible source), is not relevant to the president’s attempt to obtain foreign interference in the election. It is the president’s conduct, and no one else’s, that is at issue in the impeachment process.

I well understand that, when push comes to shove, Trump’s defenders will argue it was a legitimate exercise of presidential foreign policy authority to try to ferret out corruption by a person who was Vice President at the time. However, the evidence is clear, and mounting with every passing witness, that the sole purpose of Trump’s Ukraine maneuver was to help him defeat a domestic political opponent in 2020. Absent Biden’s prominent standing among the top challengers in 2020, Trump would have had no interest whatsoever in Biden’s involvement in Ukraine.

The answer to the question posed, then, is straightforward: individuals with direct knowledge of Trump’s conduct should testify. This is the investigative phase of the impeachment process and the sole issue is the president’s conduct. If Republicans want to produce witnesses to testify about Trump’s character, in mitigation of the possible penalty, that testimony will only be relevant in the Senate trial where the issue is conviction (or not) based on the evidence adduced in the House process. It is laughable, of course, that Republicans would introduce character evidence in the Senate, as that would create the opportunity for full exploration of Trump’s personal conduct in a host of areas, including defrauding charities, cheating the military and many others. Such a development would not deter the Republican majority from finding Trump “not guilty” but it would add to the ammunition available to the Democratic nominee in the 2020 campaign. The Senate trial, managed by #MoscowMitch, will be a brief affair with a foregone conclusion.

An overarching question remains as to how broad the House articles of impeachment should be. There are reported indications that Democrats are planning to limit the articles to the Ukraine situation. I am speculating, but must assume the rationale for that is to anticipate and undermine the argument that the impeachment process is just political revenge and an attempt to undo the election of 2016.

That would be a huge mistake. It would allow Trump to escape the findings of the Mueller investigation that Trump committed at least 10 acts of obstruction of justice. Prior posts in this blog covered the details. If the issue is going to be presented of criminal acts by the president, and there is an entire bag full of evidence of at least 10 such crimes in addition to the Ukraine scenario, limiting the charges will be interpreted by Republicans, and possibly the electorate, as proof that the Mueller Report was wrong and that Trump is innocent. The evidence of Trump’s guilt is overwhelming and he has thus far produced nothing substantive and relevant that could defeat that evidence.

Of course, in anticipation of the public hearings next week, Trump has announced he “may” issue a “transcript” of another Ukraine call. When? Why, Tuesday, of course, the day before the hearings begin. Classic Trump deflection and distraction. The first release of the “notes” from the call with President Zelensky were a disaster for Trump as those notes established the very crime he had denied. The second release will be more suspect since Trump is now in more serious trouble than he ever imagined and he likely will use the second call notes to try to repair the damage. I have previously written about the problem of calling these reports “transcripts” and the concerns expressed there are even more serious in the promised second release. CNN, among others, continues to misuse the term “transcript” to describe these notes, the original source of which are locked away in an ultra-secure computer somewhere in the White House.

A final point – the refusal of the Trump administration to produce witnesses subpoenaed by the House committees has led to multiple legal proceedings designed to test the extent to which the Executive Branch can claim, as this administration has, “absolute immunity” from Congressional oversight. Those cases are generally being decided against the administration that will certainly want a final ruling from the Supreme Court before complying. Democrats, wisely, I think, have not taken that bait entirely. Schiff has said repeatedly that the House will simply assume that the evidence that would have been adduced from non-appearing witnesses would be adverse to the president.

Schiff’s position is entirely consistent with the way legal presumptions operate. A party who claims “Proposition A” to be true but refuses to produce evidence of the truth of “A” risks a finding that “A” is not true. Withholding evidence is, in effect, an admission. The House has every right to draw adverse conclusions from the refusal of administration witnesses to testify, especially since those who have done so have uniformly supported the conclusion that Trump did indeed try to leverage Ukraine as charged for the purpose of unlawfully securing foreign interference in the 2020 election.