Tag Archives: Justice

A Darkness in the Heart

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A few days ago, Rep. Carolyn Maloney, Chair of the House Committee on Oversight and Reform, releaseddocuments showing ex-President Trump’s efforts to pressure the Department of Justice (DOJ) to overturn the results of the 2020 presidential election.  https://bit.ly/35wq4uL Maloney’s release says, in part,

These documents show that President Trump tried to corrupt our nation’s chief law enforcement agency in a brazen attempt to overturn an election that he lost. Those who aided or witnessed President Trump’s unlawful actions must answer the committee’s questions about this attempted subversion of democracy.

This is not really new. Recall that on May 3, 2017, more than four long long years ago, I published, https://bit.ly/3vObOrS that included a 24-item list of indictable/impeachable offenses by Donald Trump. That was long before the March 2019 Mueller Report, laying out conclusive evidence of at least ten instances in which Trump obstructed justice. And longer still before the July 2019 phone call in which Trump threatened the President of Ukraine that he would withhold Congressionally-approved aid if Ukraine did not announce an investigation of Joe and Hunter Biden. See https://bit.ly/3vBQ7LF It was even longer before the January 6, 2021 Trump-inspired and Trump-led (“I will be there with you.”) attack on the Capitol, for which I recommended that Trump be indicted, arrested and charged with Sedition & Felony Murder. https://bit.ly/3q7iaSb

Thus, it comes as no surprise that unleashed Trump has once again committed multiple crimes. [An aside: this is not an exaggeration. I will soon be reviewing the extraordinary memoir, Where Law Ends, by Andrew Weissmann, the inside account of the Mueller investigation that reveals in horrifying detail the determination of Donald Trump to retain power and remain unaccountable to the people, including multiple crimes in office]

In a nutshell, as exposed in the released documents, here is how Trump attempted to subvert the Department of Justice in the wake of his 2020 election defeat [full details here; https://bit.ly/35wq4uL]:

Trump Sent Bogus Election Fraud Claims to Top DOJ Officials Minutes Before Announcing Their Promotions to the Top Two Spots in the Department

Trump Used Official White House Channels and a Private Attorney to Pressure DOJ to Urgently File a Supreme Court Lawsuit to Nullify the Election

      • The draft 54-page complaint demanded that the Supreme Court “declare that the Electoral College votes cast” in six states that President Trump lost “cannot be counted,” and  requested that the Court order a “special election” for president in those states.

Trump Enlisted Assistant AG Jeffrey Clark in an Attempt to Advance Election Fraud Claims; The White House Chief of Staff Pressured DOJ to Investigate Conspiracy Theories At Least Fives Times

 Examples [“Rosen” refers to then Deputy AG Jeffrey Rosen]:

      • On December 30, 2020, Mr. Meadows forwarded Mr. Rosen an email from Cleta Mitchell, a Trump advisor who later participated in a January phone call with Georgia Secretary of State Brad Raffensperger.  During that call,  President Trump reportedly asked Georgia election officials to “find” enough votes to declare him the winner of the state.  The December 30 email contained allegations of “video issues in Fulton County.”  Mr. Meadows wrote to Mr. Rosen:  “Can you have your team look into these allegations of wrongdoing.  Only the alleged fraudulent activity.”
      • Later on December 30, 2020, Mr. Meadows emailed Mr. Rosen a translation of a document from an individual in Italy claiming to have “direct knowledge” of a plot by which American electoral data was changed in Italian facilities “in coordination with senior US intelligence officials (CIA)” and loaded onto “military satellites.”  This individual claimed that the true data, as well as sources within the conservative wing of the Italian secret service, confirmed that Donald Trump was “clearly the winner” of the 2020 election.

Further nuances and details about these sorry episodes were reported in the Washington Post. https://wapo.st/3q4tP49 One element of that recital is the repetition of “no comment” and no response to inquiries from the press about the narrated events. Even those Justice Department officials who were steadfast in declining Trump’s overtures to overturn the election are apparently unwilling to address the revelations in the emails released by the Oversight Committee. And, quite expectedly, Mark Meadows and Trump himself had nothing further to say regarding their blatant attempts to overturn the election.

 What Should Happen Now

Trump and all of the people involved in attempts to suborn the Department of Justice should be indicted under 18 USC § 371,arrested and tried. It’s past time to put a stop to Trump’s campaign to undermine the central fabric of our democracy.

The US Criminal Code, 18 U.S.C. § 371, if violated when two or more persons conspire either to (a) commit any offense against the United States, or (b) defraud the United States, or any agency thereof in any manner or for any purpose. Both offenses require the traditional elements of conspiracy: an illegal agreement, criminal intent, and proof of an overt act.

In Hass v. Henkel, 216 U.S. 462 (1910) the Supreme Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

In Hammerschmidt v. United States, 265 U.S. 182 (1924), the Court elaborated:

To conspire to defraud the United States … also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

A multitude of later cases confirm the ongoing vitality of those early definitions.

Proof of conspiracy requires knowledge by the perpetrators that the statements were false. The claims made by Trump, Meadows and others acting on Trump’s behalf were not just obviously false but bordered on hallucinatory. Trump’s repeated claims that there was “no way” he lost Georgia, for example, have no plausible factual predicate and after sixty lawsuit failures, no plausible factual basis has been presented. Trump’s claims were a blatant attempt to both “interfere or obstruct legitimate Government activity” and/or to “make wrongful use of a governmental instrumentality.”

The Manual of Model Criminal Jury Instructions: 8. Offenses Under Title 18, referring to 18 USC § 371,  states,

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed….

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators.…

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

A conspirator may not defend on the basis that he believed in fantasies when he made claims he knew were unjustified. In this case Trump and his henchmen tried to enlist the personnel and resources of the nation’s top law enforcement agency to accomplish what they failed to accomplish in the election, knowing to a moral certainty that their claims lacked a basis in reality. The conduct in question occurred almost two months after the election and after numerous lawsuits throughout the country failed to persuade a single judge (including some Trump himself appointed) that there was any basis for claims of election fraud that could change the result. Even Trump’s Attorney General Barr publicly rejected the fraud claims.

I am not alone in advocating strong and prompt action to stop Trump’s continuing effort to overturn the election . Jennifer Rubin suggested the following in the Washington Post on [https://wapo.st/3wz0sJM]:

    1.  criminal investigation into post-election actions in which officials were pressured to change election outcomes, including attempts at DOJ and at state officials such as Georgia Secretary of State Brad Raffensperger,
    2. create strict guidelines for Justice Department attorneys regarding efforts to undo lawful elections, including whistleblower protections and mandatory duty to report such actions to Congress,
    3. sue to stop the bogus so-called “audits” in Arizona and elsewhere,
    4. develop federal legislation to strengthen the Electoral Count Act, such as requiring a supermajority to challenge electoral votes.

Rubin’s final recommendation is probably the most important: establish an election-monitoring program for 2022 and 2024 that will assign Justice personnel to prevent voter intimidation, measure wait times, observe election counting, receive complaints and, ultimately, render a report on the functioning of elections in all 50 states.  That’s the most critical because Republicans throughout the country are legislating changes in local election procedures to enable Republican-controlled legislatures and political appointees to control and even overturn election results.

Following Republicans’ uniform refusal to hold Trump accountable for any of his many crimes in office, it is now clear that the fate of the nation’s election system is under systemic attack. It is no exaggeration to say that Republicans are prepared, without compunction, to adopt totalitarian tactics to establish themselves as the permanent ruling party in American politics. They seem to believe that the majority of Americans will accept such actions in peaceful submission. That, I believe, is a fundamental misjudgment, the consequences of which are unimaginably horrible. Among many other things, the United States is no longer separated from its enemies by oceans that take weeks or months to cross. A violent civil conflict would expose the country to attacks from which it could never recover.

In any case, there is no reason to sit idly by while the Republicans attempt in plain view to subvert the Constitution and establish a Republican dictatorship under Donald Trump. Aggressive and immediate actions can prevent the unthinkable and avert more drastic measures later. Trump and his co-conspirators should be indicted forthwith. Time and opportunity are wasting.

Trump Goes Full Dictator

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The president has been asked multiple times if he will respect the result of the vote and participate in the peaceful transfer of power that has been a hallmark of American democracy since the Founding. His chilling responses are, in essence, “only if I win,” just as he said before the 2016 election. In that election he made much of claims that the election was being “rigged” by Democrats against him. Little was known at that time about the support he was getting from Russia which wanted Trump to defeat Hillary Clinton at all costs. Of course, a significant majority of voters went for Clinton anyway. Trump’s squeak-by win was the product of a few votes in a few states favored by the Electoral College.

This time, Trump has gone all-in with his “election rigging” claims, focusing mainly on the on-going shift toward mail-in voting compelled by the COVID-19 pandemic crisis that the president himself has admitted he deliberately downplayed the danger and misled the public despite his early knowledge of how deadly and easily transmitted the virus was. Details in Bob Woodward’s Rage. Trump claims that mail-in voting, in which ballots are sent to all registered voters rather than the traditional absentee method that send ballots only to voters who ask for them, are inherently infected with fraud.

These assertions have no basis in history. Multiple states, including Republican-led states, have long used mail-in voting without material evidence of voter fraud. Paul Begala’s recent book, You’re Fired, The Perfect Guide to Beating Donald Trump, shares some compelling data on this subject. He reminds us of the Pence-Kobach voter fraud commission, ponderously named by Trump as the Presidential Advisory Commission on Election Integrity. Kobach was the lead horse in the Trump wagon train seeking evidence that voter fraud was rampant in the United States.

During its roughly seven-month life, the Commission came up with … nothing of substance. The pathetic history of this effort at voter suppression, inspired by Trump’s hurt feelings over having lost the popular vote in 2016, are set out at https://en.wikipedia.org/wiki/Presidential_Advisory_Commission_on_Election_Integrity, including the finding by a federal magistrate that Kobach had engaged in “patently misleading representations” in a court dispute over document access.

Begala reports that the Bush administration had also tried to unearth voter fraud. Then Attorney General Ashcroft investigated hundreds of campaigns involving 197 million votes and prosecuted 26 people. In a study of 14 years of elections (1 billion votes), the Washington Post found 31 cases of actual or plausible voter fraud. For the 2016 election, a WAPO investigation revealed 4 published reports of fraud in an election with 135 million votes. Sidebar: one of those cases was someone who voted twice for … Donald Trump.

Begala observes that voter fraud involves a very small gain for the fraud-favored candidate (one incremental vote) whereas the perpetrator faces the prospect of federal prison. If you think that’s fanciful, recall Crystal Mason who cast a provisional ballot, which was never counted, in Texas while on federal supervised release following a prison term for tax fraud. She was sentenced to five years – five years – in prison for an uncounted vote when she had never been told of her disqualification under Texas law. https://bit.ly/3mVm4eI

Never deterred by facts, Trump and his enablers have been stoking the fears of massive voter fraud and other problems for months. As reported by Politico,

This past spring, President Donald Trump began a full-fledged assault on voting by mail, tweeting, retweeting and railing about massive fraud and rigged elections with scant evidence. Then the Republican apparatus got to work backing up the president. In the weeks since, Trump’s campaign and the Republican National Committee have taken to the courts dozens of times as part of a $20 million effort to challenge voting rules, including filing their own lawsuits in several battleground states, including Minnesota, Pennsylvania and Nevada. And around the time Trump started musing about delaying the election last week, aides and outside advisers began scrambling to ponder possible executive actions he could take to curb mail-in voting — everything from directing the postal service to not deliver certain ballots to stopping local officials from counting them after Election Day. https://politi.co/33ZERNl

The more recent developments are pretty well known, including the efforts of Trump’s Postmaster General, a man with zero experience managing the Postal Service, to slow down mail deliveries, removing automated mail-sorting machines, altering delivery schedules to force mail to be undelivered or delayed, and so on. This is classic voter suppression by other means in the face of a national health crisis that has, due in large part to the president’s lying, killed more than 200,000 Americans and left tens of thousands more with permanent, crippling organ damage.

We are now in the final two months run-up to Election Day. Trump is desperate. He is behind in almost every poll, including many  battleground/swing states and his lies/distortions/deflections have not moved the needle in his favor.

Then the question is put: will you respect the vote and participate in a peaceful transfer of power? His answer remains, in effect, NO.

Does he mean it? We would be foolish to think it’s just a ploy on his part, part of Trump’s bag of braggadocio that so excites his political base at rallies. When you ask someone, “what do you do?” and he answers, “I’m a thief,” you should believe him.

Trump’s campaign to undermine the legitimacy of the election is unrelenting, supported by Russia again, and like an elixir for his base. However, many of Trump’s key enablers, like Sen. Lindsey Graham of South Carolina, are falling behind their Democratic opponents and pleading for help from Fox Propaganda News viewers.

Remember Trump’s answer: ‘NO, I will not respect the election result because I know, in advance with the use of my mystical powers to see the future, that it will be unfair to me and I won’t stand for it.’ There are suggestions that he will order the U.S. military and state National Guard units to the polls, for the sole purpose of intimidating voters. His supporters in open-carry states have already appeared at some protests related to the murders of George Floyd and Breonna Taylor armed with AR-15s and other weapons. They call themselves militias, but they are actually armed gangs who will not hesitate to participate in voter suppression in support of Trump’s white supremacy agenda.

Lastly, and most recently, in a now common apparent effort to bolster Trump’s claims of voter fraud working against him, the Justice Department announced it was investigating nine “discarded military ballots” that were cast for Trump in Luzerne County, Pennsylvania. https://cnn.it/2FZzo1a

The announcement is extraordinary in multiple respects: DOJ does not normally announce pending investigations absent compelling circumstances, especially if they may influence an election. That is true notwithstanding the astounding, history-changing decision by James Comey, then Director of the FBI, to announce a reopened email investigation of Hillary Clinton only days before the 2016 election. That decision, in which Comey overrode the advice of virtually everyone else at Justice, is recounted in Jeffrey Toobin’s True Crimes and Misdemeanors.

The initial announcement regarding the Pennsylvania ballots was wrong regarding how many votes were for Trump and had to be reissued. As noted by CNN, the disclosure of the candidate’s identity

immediately raised suspicions that the Justice Department was trying to furnish material that Trump could promote for political gain. Indeed, Trump and other White House aides used the information, even before it was made public, to attack mail-in voting. Election officials go to extraordinary lengths to protect ballot secrecy. It’s unclear how investigators figured out who the votes were for, and why they made that information public.

Not surprisingly, the federal inquiry was prompted by a request from the Republican District Attorney in Luzerne County; the DOJ attorney announcing the case is also a Trump-appointed Republican.

As usual with vote fraud cases, the “discarded” ballots are a tiny fraction of the “normal” voter turnout in Pennsylvania (6.1 million votes in 2016). Because the envelopes appeared similar to the ballot application envelopes, the story goes, the local officials decided to open them for fear of missing absentee ballot requests from the military, a problem that had cropped up in the last primary and, apparently, not cured.

This is, I believe, related to an ongoing problem with ballots, the requesting and use of which has become so complicated that many mistakes are made by ordinary voters whose votes are then rejected. This happens even in jurisdictions that have no history of voter suppression.

Another curiosity about this situation is that the investigation apparently had not yet learned who “discarded” the ballots or why. Yet, DOJ was most anxious to make public statements about the investigation and, it turns out, brief Trump in detail before the DOJ’s public announcement of the situation.

Trump spoke to Fox News Radio about it and the White House Press Secretary was informed and advised reporters before DOJ’s announcement.

CNN’s report continues:

Trump and Attorney General William Barr …have promoted debunked conspiracy theories and blatant disinformation to claim that mail-in voting leads to massive fraud. Election officials from both parties have rejected these claims and say there are tried-and-true safeguards prevent and quickly detect fraud.

The unorthodox Justice Department announcement is sure to fuel suspicion that Barr is using the Justice Department as a political weapon to help Trump’s reelection.

In recent months, Barr has aided Trump’s effort to label Democratic-run cities as “anarchist” strongholds, and has targeted Democratic-run states over Covid-19 deaths at nursing homes. Barr has also intervened in criminal cases to help prominent Trump allies.

David Becker, founder of the nonpartisan Center for Election Innovation, and a former DOJ attorney himself, said

the announcement didn’t say anything about the voters’ preferences in the down-ballot races, and that it said nothing about how the ballots were actually discovered.… to release a public statement with so little info, at the beginning of an investigation, is inexplicable, and law enforcement malpractice.

Becker was not alone in his condemnation of the early partial release of what amounts to political campaign material supporting Trump. For example,

It’s wildly improper, and it’s truly unconscionable,” said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles. https://wapo.st/334NpDv

But, wouldn’t you know, the reality turns out to be quite different than the hysterical web of deceit and conspiracy that Trump and his sycophantic enablers weave. The discarding of ballots was a mistake by an inexperienced contractor, since fired. Another nothing-burger in the Trump pantheon of wounds and slights in the fantasy word he has concocted around voting fraud. https://cnn.it/2Sen7IV

Trump’s ongoing campaign to undermine confidence in the election, assisted by his Attorney General acting, and using the resources of the Justice Department, as de facto personal attorney for Trump and his re-election campaign. Barr’s involvements on behalf of the president and his enablers is so bad that more than 1,100 former DOJ officials publicly urged Barr to resign last February. https://n.pr/3hXHNPG

Trump’s plan seems clear. He intends to resist with every available tool, legal or otherwise, the outcome of the election. There are reports that his statements and claims have alarmed the generals in the Chiefs of Staff and in the Pentagon that they may be called on by Trump to intervene in the election. https://wapo.st/2Gawcj7 Trump would not hesitate to order the military to intervene if he thought that would save his presidency from electoral defeat.

In that case military leaders will have to choose between Trump and the Constitution – saying they’ll leave it to the courts will not suffice if Trump, as Commander-in-Chief, orders them to intervene on his behalf. And resignation, the other suggested option, will not work either. The decision-making authority would simply devolve down the chain of command until someone –- there’s always someone – says “I’ll give the order.” It will be someone least capable of leading but who is intoxicated by the power or the attention, however brief it may be.

Trump is half-way there. He has been asked repeatedly and continues to hedge: “we’ll see what happens.”

One suggested solution is that the Democratic vote must be so overwhelming that there simply is no basis for a claim of electoral fraud. A gigantic Blue Wave would be helpful, but it is no guarantee against a desperate man who has no allegiance to the Constitution or anything else beyond himself. Everyone should prepare for the worst. And, without fail, VOTE. VOTE like your country’s life and your own depend upon it. Because they do.

 

Going Along to Get Along

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

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

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

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

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

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

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

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

Why do they risk everything for this?

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

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

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

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

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

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

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

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

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

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

 

Laugh Until You Cry

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An article in Newsweek by Emily Zogbi at https://bit.ly/2MppR5G, entitled “Trump And Money: The Court Case That Could Blow His Finances Open,” reports that the Justice Department is resisting discovery requests by the plaintiffs (the State of Maryland and the District of Columbia) in a case claiming that Donald Trump’s continued business connection to the Trump International Hotel in Washington is resulting in violations of the Emoluments Clause of the Constitution.

The Emoluments Clause says, in pertinent part:

“…no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

An “emolument” has been broadly defined by the judge in the case as “any profit, gain or advantage of more than de minimis value, received directly or indirectly.” https://bit.ly/2BoIJwi

This approach, consistent with the historical roots of the Emoluments Clause, raises the issue whether Trump is benefiting financially from foreign firms and officials who choose now to stay in his hotel when visiting Washington.

The dispute over discovery relates to Donald Trump’s financial records and, since discovery is normally broadly permitted if it is likely to produce or lead to the production of admissible evidence regarding the matters at issue, there is likely panic in the Trump legal team and the White House. What Trump and his lawyers are most afraid of is that the document discovery will compel the release of his tax returns that he promised repeatedly he would disclose, then recanted, along with most other transparency commitments.

Now, here’s the laugher: the cited article notes that “the Justice Department objects to any “discovery” on a sitting president.” because “any discovery would necessarily be a distraction to the President’s performance of his constitutional duties.”

This “distraction” argument might have some force in some case (it didn’t concern the Republicans during the Clinton impeachment proceedings), but it’s a pathetic joke when applied to Donald Trump. It is undisputed that the president spends hours a day watching Fox News and similar right-wing propaganda sources, not to mention his Twitter habit, whereby he tweets constantly when events don’t go as he likes. That is virtually every day – in the past 24 hours, it appears he has issued at least 17 tweets, attacking people and newspapers, proclaiming his innocence of crimes and more. And, of course, there is his golf habit. As of March 2018, Trump spent almost 25 percent of his time at one of his golf courses. https://cnn.it/2FPWwL4 He reportedly refuses to read briefing books, or any books actually.

The argument that divulging his financial records, which Trump himself almost certainly never personally touches, is preposterous in light of Trump’s daily habits. The small amount of time required for Trump to participate in the document discovery process can be deducted from his daily TV, ranting and golf time without interfering one bit with the performance of his real responsibilities as chief executive of the United States.

By the way, this situation does not fit into the phony narrative spewed by Rudy Giuliani today on a TV interview in which he said, “truth isn’t truth.” His cited proof was a conflict of statements between Trump and James Comey. Giuliani’s argument is ludicrous for multiple reasons. Two of them are: (1) the President is lying and Comey is not; therefore, there is truth in what Comey said, regardless of Trump’s denials; (2) if there is no truth, then Trump’s declarations of innocence are all false and he is guilty of, among other things, obstruction of justice, collusion with a foreign power to interfere with a national election, violations of federal election laws and treason.

Manifestly, a conflict about whether an event happened or a statement was made does not mean there is no truth. It means there is a conflict that must be resolved and one of the ways we do that in litigation is through discovery. The gang of autocrats and enablers in the White House can’t have it both ways just because a lawyer says “yes is no” and “up is down.” That may have worked in the Humpty Dumpty tale, but not in real life. If Giuliani’s position that all statements about facts are equally true, even if in direct and irreconcilable conflict, he has walked his client into yet another legal dead-end.