Tag Archives: Mueller

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

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

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

“June 4, 2018

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

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

Dear Mr. McGahn & Mr. Flood:

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

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

(1) Article II and Faithful Execution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

[Signed by 26 law professors]

Most important Book You’re Not Going to Read This Year

I have just finished reading Can It Happen Here? Authoritarianism in America, edited by Cass Sunstein. Sunstein is the Robert Walmsley University Professor at Harvard University where he founded its Program on Behavioral Economics. He is the author of, among many others, Impeachment, A Citizen’s Guide, which you are also not going to read, but should.

The contributors of the essays in this stunning book are mostly distinguished law professors from Harvard, Yale, Chicago, Columbia, NYU and Duke. These people know whereof they speak.

And speak they do, sometimes a bit turgidly as law professors are wont to do, but also brilliantly and incisively addressing the sources of risk that the United States could lose its hold on democracy. It’s important to understand that this is not an anti-Trump screed, although, as you might expect, Trump’s conduct as president figures prominently in many of the essays. The reason is that his behavior is in the classical line of actions taken by political strong men who have undermined democracy in their countries. It’s also important to remember the United States has some blood on its own hands from past episodes of authoritarian behavior induced by crises such as the attack on Pearl Harbor and the 9/11 attacks on the World Trade Center.

The threats to American democratic institutions, free press, elections and other features of a free and open society in which we have grown up are real and immediate. While some of the essays are guardedly optimistic about the resiliency of our Constitution and institutions to resist the imposition of an authoritarian regime, you will find cold comfort in most of the essays. They are, along with other recent works like Elaine May’s Fortress America – How We Embraced Fear & Abandoned Democracy, compelling, history- and fact-based accounts of how democracy can fail, and may actually be failing, under the relentless pressures of an autocratic president supported by a single-party Congress. These are conditions not contemplated by the Founding Fathers whose Constitution, as brilliant as it is, may lack sufficient safeguards against one-party rule that does not respect the values on which that document was based.

If you are serious about understanding what is happening in American politics today, this book is a must-read.

To give you a taste, the chapter entitled “Constitutional Rot” observes that “These four horsemen — polarization, loss of trust, economic inequality, and policy disaster — mutually reinforce each other.” Further, “In an oligarchical system, regardless of its formal legal characteristics, a relative small number of backers effective decide who stays in power.”

In the chapter entitled “Beyond Elections: Foreign Interference with American Democracy,” Samantha Power discusses how non-mediated social media opened the door to Russian influence in U.S. elections. The chapter “Paradoxes of the Deep State” addresses little-known history of the so-called “Deep State” with surprising observations about the “leaks” in the Trump administration. Then, the chapter “How We Lost Constitutional Democracy” sets out grave and chilling warnings about the erosion of democratic norms and the limits of the Constitution as an obstacle to the destruction of democracy as we know it.

As I said earlier, this book is serious stuff and not an easy read. Yet the issues analyzed in it are critical to a deep understanding of what is happening and the extent to which we can “count on the Constitution” as a defense against loss of freedom and democratic process.

When you are finished being frightened to death, I continue to urge everyone to read On Tyranny-Twenty Lessons from the Twentieth Century, by Timothy Snyder, a measly 126 pages. Finally, if you want to dig deeply into some of the mysteries of the behaviors of voters whose conduct you consider self-defeating and borderline insane. I commend to you two tomes that I guarantee will open your eyes to ideas you never dreamed of: Thinking, Fast & Slow, by Nobel Prize winner Daniel Kahneman, and Behave – the Biology of Humans at Our Best and Worst, by Robert Sapolsky [skip the details on endocrinology, unless you really dig that sort of stuff].

To conclude, for now, I believe the following to be more likely true than not:

1. Trump’s election was unlawfully procured through interference by, and his collusion with one or more foreign powers; the more he fumes and fulminates against this idea, the more likely it seems to be true;

2. Trump has violated Article II, Section 3 of the Constitution by failing to “take care that the laws be faithfully executed;”

3. Trump has violated the emoluments clause of the Constitution, Article I, Section 9;

4. Trump is guilty of obstruction of justice, which qualifies as a “high crime” or “misdemeanor” under the Constitution, Article 2, Section 4, and, in the specific circumstances, is guilty of treason as well;

5. Trump and members of his family and officials appointed by him, along with Republican members of Congress, have engaged in a conspiracy to conceal evidence of crimes by them and others and to prevent the full investigation and prosecution of such crimes by appropriate government authorities.

I also believe the following truths are now indisputable:

1. Democratic norms are under active siege by a president who neither understands nor cares about such norms;

2. While the prospect of indictment of the president as a result of Special Prosecutor Mueller’s investigation is highly appealing, there is little chance that such a move is going to occur soon and it will, in any case, provoke a lengthy constitutional crisis that will end up in the Supreme Court and therefore not afford a near-term solution to the governance crisis that confronts the nation;

3. The most immediate and most important defense against the oligarchical theocracy, or the theocratic oligarchy, if you prefer, that the president, vice president and Republican Congress want to establish, and to some degree have already established, is for the Democratic Party to take control of Congress in the 2018 elections;

4. Democratic control of both houses of Congress would immediately create an insurmountable bulwark against further destruction of democracy by the administration and lay the framework for removal and prosecution of the Trump gang and its enablers;

5. Trump’s sycophantic supporters are preparing to defend him with aggressive voter turnout and contributions of huge amounts of money. Nonetheless, Democrats must overwhelm them at the polls if we are to turn the tide against the fascist practices of this administration. If we fail, we will face two more years of entrenchment, destruction of the independence of the judiciary and undermining of the free press. The loss of those two elements of the Constitution’s system of checks and balances will make it very difficult, perhaps impossible, to turn back the tide. It’s 2018 or nothing.

6. Every American should view this situation as a grave threat to their well-being and the well-being of their families present and future. It is time for the Democratic Party leadership to start leading politically and for the personal ambitions and agendas of the old guard to yield the floor to the generations that will have the most to lose if the foundations of democracy are not restored. Remember that those who fail to heed the lessons of history are doomed to repeat it.

7. It is time for a game plan that does not repeat the same mistakes that led to the disastrous defeat in 2016. The Republicans know the same things we know about what happened. They have a keen understanding of their political base and how to stimulate it to action on behalf of their agenda. Trump’s base is uninterested in the truth about him or his policies; they have created their own truths in which they choose to believe and nothing is going to change most of them. It is therefore absolutely essential that every potential Democratic vote be cast in every district. There have been a few interim wins in replacement contests, but these are no laurels on which to rest. Democrats cannot afford to give up any seat that is potentially winnable. It’s now or never.

Shilling for Trump

Well, well, well. As the rumors of more indictments of Trump acolytes circulate in the winter winds of Washington, the Trump enablers in Congress appear to have been overcome with a bad case of nerves. They are pulling out the stops in an overt effort to derail the investigation by Special Prosecutor Mueller before it makes another public move against the Trump team. Trump himself approved the release of classified information in the now infamous “Nunes memo,” and promptly tweeted that the memo completely exonerated him of any charge of collusion or obstruction of justice. In case you don’t do Twitter, here is what he said:

This memo totally vindicates “Trump” in probe. But the Russian Witch Hunt goes on and on. Their was no Collusion and there was no Obstruction (the word now used because, after one year of looking endlessly and finding NOTHING, collusion is dead). This is an American disgrace!

Au contraire, I suggest that his personal involvement in the release of the memo and attempt to use it to thwart the Mueller investigation represents, by itself, hard evidence of a direct attempt by Trump to obstruct justice by interfering in the investigation regarding his and his allies conduct. Bad move.

Today I want to turn to Alan Dershowitz who, not long ago, was a “regular” on CNN, first as a seemingly independent “legal expert” and then, increasingly, making partisan arguments in support of Trump’s position that “because I am President, I can do no wrong.” Dershowitz, a highly educated and aggressive advocate, is now a “regular” on Fox News.

Dershowitz has now argued that the Nunes Memo is a credible document entitled to respect andfurther validation. See http://fxn.ws/2DYLWDO While acknowledging that the memo is a “second hand, hearsay, account,” Dershowitz nevertheless says the memo establishes “probable cause” (the legal standard for making an arrest), for further investigation. His use of the term “probable cause” is an unsubtle way of suggesting, without saying it, that the Nunes document is evidence that a crime was committed by the FBI and/or Justice Department in applying for legal permission to surveil Carter Page, a Trump promoter and campaign worker. Dershowitz repeats his earlier call for a “nonpartisan commission of objective experts to investigate the entire issue of Russian involvement in the election and other claims made by either party about any unfairness surrounding it.” [my emphasis]

Putting aside where on this planet and this country, such “objective experts” might be found, Dershowitz, to his credit, adds that the Democratic version of the Nunes claims, also “secondhand and hearsay,” should also be released (not happening while Republicans are running things) and that this will “help to level the playing field.” Then, subject to “real needs of national security,” whatever that means and whoever would decide, the public should get the entire “redacted version” of the FISA application for surveillance of Carter Page and be able to judge for themselves whether the FBI and Department of Justice engaged in a flam-flam, not once, but at least four times, with the FISA judges (different ones for each renewal of the FISA warrant).

So what we have here, according to Dershowitz, is a situation where secondhand, highly partisan hearsay “information” from Republicans like Nunes with a history of secret dealings with the White House about the Russia election interference raises sufficient issues that we should stop the Mueller investigation and start all over again with a “nonpartisan commission” of “objective experts” to consider the issues raised by Russian interference, all because of a partisan contention that one person was surveilled inappropriately supported only  by “secondhand hearsay” information.

If this weren’t so serious. it would be laughable. Whether or not it’s true that Congress should have proceeded by nonpartisan commission rather than a special prosecutor, it is too late to change trains. The Mueller investigation is way down the tracks. The desperate maneuver of releasing only the Republican version of the Nunes memo indicates pretty clearly that the heat is being felt in the White House and on Capitol Hill. Whether deliberate or not, Dershowitz’s argument would lead to a massive slowdown, perhaps a complete shutdown, of the entire investigation, which is, of course, exactly what Trump and the Republicans in Congress wanted when they released the memo.

Dershowitz disagrees, of course, arguing that the “American public has lost faith in the objectivity of congressional committees.” No doubt, they have. Why would it be otherwise? The secret maneuvering of the Republican leadership, Nunes’s dark-of-night visits to the White House and all the other nonsense would give the Pope a headache. The notion that the public can effectively act as a jury viewing a heavily redacted document while Republicans and Democrats hurl invectives at each other about its meaning is a bridge way too far, a prescription for delay and ultimate failure. Imperfect as the process may be, the Special Prosecutor has the intelligence, independence and proper tools to do the job that needs doing.

If the President would just shut up, the entire process, and the American people in the bargain, would be well served. The fact that he keeps proclaiming his innocence when he hasn’t been charged with anything is quite telling. His behavior is that of a guilty person flailing in panic at the realization that his conduct is about to be laid bare for the world to see.

As a final word on this, do not fall prey to the facile word play of skilled advocates like Dershowitz. His legal credentials and carefully crafted arguments may seem reasonable on the surface. Before making a judgment about this, read the piece in Politico by Paul Rosenzweig at http://politi.co/2DW2fkG entitled “Even If You Take the Nunes Memo Seriously, It Makes No Sense.” The conservative R Institute, with which Rosenzweig is a Senior Fellow, sits quite far from the left wing of the Democratic Party. He is clearly not a partisan for the anti-Trump side of this fight.

The article addresses this: “let’s take the Nunes memorandum on its merits and assume that it is what it purports to be—an accurate summary of a purported problem with the FISA application process. What then should we make of it?” Rosenzweig, in my opinion, eviscerates the Nunes/Dershowitz/Trump position on the FISA application.  Read it – it’s short and accessible — and then judge for yourself.

Cholesterol: Democracy’s Only Hope

The title of this post comes from my favorite sign at this year’s Women’s March in New York City. It is, of course, not true, but I thought it was clever. There are better ways to remove Trump than waiting for him to have a heart attack. I will return to that in a moment.

I had planned to title this piece something more like “And still they came.” Meaning that beginning at 11 am and continuing for more than five hours, the marchers processed in New York. The size of the crowd was overwhelming.

They started somewhere up past West 72nd (we never made it up there for the rally) and came down 8th Avenue (aka Central Park West) passed by Columbus Circle went east on West 58th to 6th Avenue, then down to the mid-40s where the March ended. We had to walk out Broadway and quickly ran into a near standstill crowd at 60th. We crept forward to 63rd, where the police finally allowed our crowd to cross back toward 8th Avenue to merge into the main body of the March. Thus, we processed across town to 6th Avenue and turned toward Downtown. We finally gave out at West 54th Street and headed back toward our apartment. On the way we stopped to get a bite to eat (splitting a corned beef on rye, for which New York is justly famous). Back on the street at about 4 pm, we realized that the people were still marching and chanting; even when we reached Columbus Circle, almost back to our apartment, the street was packed with marchers carrying signs.

So, back to the signs. I can’t say this year’s crop was as creative as those of the first March in Washington last year but some of them were pretty good. I have attached photos of the ones suitable for a “family blog.” If you want to see the others, submit a reply and I will send them privately to you.

The “cholesterol sign” mentioned above is, of course, an allusion to the recent medical report on Donald Trump’s health, a report that, like everything else about Trump, cries out for a redo by people not employed in the White House, Fox News or the Republican Party. My ultimate message, however, is not to quibble about Trump’s health.

Rather, I want to say that the real way to get rid of Trump is to bring about one or more of the following:

(1) Robert Mueller’s investigation acts upon the conclusion that Trump was complicit in the Russian interference in the 2016 election or that Trump has otherwise engaged in obstruction of justice or some other “high crime or misdemeanor,” leading to irresistible pressure for impeachment.

This is, of course, beyond the control or influence of us as individuals. As much as we may prefer a direct take-down of the president, his co-conspirators and enablers, we cannot afford to rely solely on that approach, especially since Republicans control both houses of Congress and are virtually certain to defend Trump to the death.

Thus, we turn to No. 2:

(2) effect a massive Democratic turnout for Democratic candidates in the 2018 midterms and strip the Republican Party of control of the House of Representatives and the Senate.

This is the part we can control. The massive turnout for the Women’s March around the country is strong, but not conclusive, evidence that the Democratic Party can experience a massive renaissance and reverse the anti-humanity, anti-environment plague of the Trump-Republican regime. Marching is great, resistance is essential and bringing constant pressure against the regime is important. But, in the end, victory can only be accomplished by one thing:  VOTE THE BASTARDS OUT OF OFFICE.

It is likely that, if you read this blog, you agree with me on this. But it is not enough for each of us individually to follow that prescription and arrange our affairs so we can vote in the 2018 midterms. There are many other potential supporters who, for a variety of “reasons” will not be sufficiently motivated to actually go to the polls or who, for a variety of reasons, will face obstacles to voting, either in their personal circumstances or because they are unaware how to handle the barriers to voting that have been erected in many jurisdictions. If we’re going to win this election going away, we each must reach out to such people and offer to help them by guiding them, driving them, just plain encouraging them, asking them to make the commitment to you personally and then remind them again on Election Day, taking the extra step to assure that every possible vote for Democratic candidates is actually cast on Election Day.

If you run into resistance, with, for example, someone telling you that for reason X or Y, they are going to vote for some third party single-issue candidate, you need to double down with that person and bring pressure on them so that they understand that voting for such candidates is the same as not voting at all or, worse, the same as voting for the Republicans and a continuation of the anti-American agenda they have pursued since Donald Trump was inaugurated. This is a solemn obligation of every right-thinking American. VOTE and make sure that every like-minded person you know also VOTES. This may be awkward in some cases, but if you approach friends on a positive, personal basis, they will generally respect what you are doing.

Understand that the supporters of Donald Trump are not going to just give up if they feel his position is being threatened. No matter what you may have read about the softening of his support, those folks who have found a way to believe in Trump are not going to sit at home whining about how the Democrats are organized and passionate about turning Trump and his cabal out of office. They will vote because they passionately believe Trump is a victim and that they are victims and that sense of victimization and loss is a powerful driving force that largely explains the shock vote in 2016.

That means that every vote is more important than ever. Recall that one legislative seat in Virginia was recently lost by drawing the Republican winner’s name from a bowl because the actual vote of the people was deemed to be a tie! Think about that – an “elected” representative chosen by drawing a name from a bowl.

That doesn’t happen often, but it can happen again. Moreover, the Electoral College vote was determined ultimately by a total of 77,744 votes in three states. Those votes represent .057 percent of the total votes cast for Trump and Clinton combined. Our fate was determined by the slimmest of margins. If this happens again in 2018, resulting in continued Republican control of the House and Senate, who will we blame then? We will just have to look in a mirror to see who is responsible.

Enjoy the photos. Be moved. Act! Join the ACLU. Or Moveon.org. Or Indivisible. Or all of them. Play a part, win the fight, win the war for the soul of the country. Save our republic and its democracy … without cholesterol.

Most Disturbing Statements Since Trump Was Elected

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

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

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

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

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

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

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

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

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

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

And Happy New Year.

More Republican Legislating in Secrecy

The Republican “tax reform” plan is now public. The details, such as they are, appear throughout the media, so I won’t repeat them here.

My point isn’t so much about the terrible concepts underlying the plan as it is about the way, yet again, that the Republicans have chosen to go about the business of legislating. They created this “plan” on their own and intend, it seems, to mark it up and force it through the Congress without hearings or other meaningful opportunities for input, except, or course by the lobbyists for the large corporations and the very rich.

That is not to say that reductions in the corporate tax rate are a bad idea; frankly, I am not sure about that, except to say that the claims of massive economic growth and production of new jobs are ludicrously overstated.

No, the point I struggle to make is that this is a really bad way to legislate on any matter of great public importance, of which the country’s revenue-raising system surely is a classic example. It seems that the Republican leadership is more concerned with delivering a “victory” to their failing president than they are about anything else. In doing so, they are turning their backs on Republican fiscal responsibility doctrine, thereby making complete their surrender to the chaos politics of their chosen leader.

Here is a relevant portion of the 2016 Republican Platform on which Donald Trump was ostensibly elected:

Our Tax Principles

To ensure that past abuses will not be repeated, we assert these fundamental principles. We oppose retroactive taxation. We condemn attempts by activist judges at any level of government to seize the power of the purse from the people’s elected representatives by ordering higher taxes. [???]

We oppose tax policies that deliberately divide Americans or promote class warfare. Because of the vital role of religious organizations, charities, and fraternal benevolent societies in fostering generosity and patriotism, they should not be subject to taxation and donations to them should remain deductible. To guard against hypertaxation of the American people in any restructuring of the federal tax system, any value added tax or national sales tax must be tied to the simultaneous repeal of the Sixteenth Amendment, which established the federal income tax….

The huge increase in the national debt demanded by and incurred during the current Administration has placed a significant burden on future generations. We must impose firm caps on future debt, accelerate the repayment of the trillions we now owe in order to reaffirm our principles of responsible and limited government, and remove the burdens we are placing on future generations.

You don’t need a PhD in the dismal science [economics, for the blessedly unacquainted] to see that those principles are going to be sacrificed by a tax regime that increases the deficit by something in the neighborhood of $1.5 trillion.

Someone once said that desperate times require desperate measures. However, the economy is growing robustly and there is no known rationale for a massive deficit-based stimulus.

In any case, I digress. All these arguments can be debated but not without actually having a debate. The Republicans are set upon a course that replicates their multiple failed attempts to eviscerate the health care insurance marketplace. No hearings, no public input, just an ideologically driven attempt to remake the country in the image of Donald Trump. The Republican tax plan is not going to do much, if anything, for the vast majority of Trump’s acolytes, but they seem unaware and uncaring. The cult of personality trumps (sorry) everything for them.

There is, however, an opportunity coming up in 2018 for the country to save itself from the demagoguery of this administration and its congressional enablers by returning control of the House of Representatives to the Democrats. That chance depends upon, among other things, whether the Democrats can stop bickering long enough to vote. And, of course, there is the slow burning fuse of investigations by Special Prosecutor Mueller, drawing ever closer to the center. The only question is whether it will be in time. Tick tick tick ….

Twitch Your Eyes So They Think You’re Crazy

Imagine, if you will, that Donald Trump and family/hangers-on are in a bar planning further destruction of the poor and middle classes. Some immigrant waiters have accused the group of cheating on their taxes and undermining the Constitution. Trump’s gang doesn’t take kindly to being told the truth. The two groups are about to tangle.

The bar doors swing open and in walks Sheriff Mueller, dressed in black and sporting double holsters marked “subpoenas” and “indictments.” The Sheriff counts off his steps as he approaches the group and says softly, “it about time you boys got out of town.” They laugh. The National Marshall is on Trump’s payroll and Trump and team are sure they are above the law.

This is, of course, fiction, except for the part about Trump and team being sure they are above the law. And, further, I didn’t make this up by myself.

In case you haven’t seen it, GEICO this year produced a great ad called the “Cowboy Showdown.” You can see it at  https://www.youtube.com/watch?v=MOG8AFPQcM4.  The basic idea is that in a typical Western bar scene, the sheriff confronts a scruffy trio of cowboys who have just been accused of card cheating. The sheriff tells the thugs that it’s time they got out of town, a demand met with hostile mirth by the cowboys. The sheriff then speaks his “left foot, right foot” steps as he moves in closer and then, in a close-up, says “Twitch your eyes so they think you’re crazy.” He does, as uncertainty spreads on the faces of the cowboys. And so on.

The ad’s humor resonates because almost everyone has seen variants of the scene in old western movies performed straight and serious.

The announcement of the indictment of Paul Manafort and Rick Gates reminded me of the ad, which in my view ranks right up there with the camel ad demanding that office employees acknowledge that it is “hump day” (see https://www.youtube.com/watch?v=7LtjzQaFZ3k).  The charges follow close behind Trump’s recent tweets chastising the Secretary of State for trying to negotiate a peaceful solution to the North Korean nuclear threat. In case you missed them, Trump tweeted: “I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man…,” followed by “Save your energy Rex, we’ll do what has to be done!”

This follows other tweets in which Trump has threatened the total annihilation of North Korea, amidst name-calling reminiscent of school-yard behavior of grammar school boys.

The connection between the GEICO ad and Trump’s Tillerson take-down is that this is how Trump negotiates. The sheriff is outnumbered three-to-one and is trying to intimidate the cowboys into giving up their advantage by indicating he is nuts and may do something irrational and unexpected. This spooks them into a state of uncertainty and weakness. However, the sheriff, at the end of the ad, is still outnumbered and in a precarious situation.

This how Trump negotiates – make the other side think you’re irrational and capable of anything, in this case undermining the credibility of your official representative, and thus may at any moment unleash the full fury of American military power against a sitting-duck North Korea.

The “I may be crazy so you better be careful” strategy is not uncommon in business and other negotiations, as you know if you have experience with negotiating in high-stress situations. But the strategy rarely leads to good outcomes against experienced negotiators who are familiar with the approach and know now to deal with it. The outcome can only be positive if the other side responds rationally. If the other side is genuinely bonkers too, the outcome can quickly lead to mutually catastrophic results.

In the case of North Korea, it seems highly likely that Kim Jong-un has, at best, a severely distorted view of the United States and the political system that produced Donald Trump as president. Many people in the West see this confrontation as the worst-case scenario in which a demented, angry and generally ineffectual Trump acts out his fantasies and gets the world into a nuclear confrontation that could be avoided by adult behavior. If both Trump and Kim Jong-un are indeed crazy, as much evidence suggests, we are in a boatload of trouble as a civilization.

The case establishing that Trump may be insane is growing with every passing day. He has now threatened to abort the Iran nuclear deal, dumping it into the lap of Congress, because, most likely, he has no real idea what to do. He has threatened to cut off assistance to Puerto Rico which, according to multiple credible accounts, is in a humanitarian crisis unlike anything ever experienced in modern times. Trump seems unaware that Puerto Ricans are American citizens. Or maybe he just doesn’t give a damn. They are, after all, not like the people who elected him.

And now, frustrated that the Republican-dominated Congress cannot fulfill his promise to end the Affordable Care Act, Trump also is ending the billions in federal subsidies that make it possible for the health insurance marketplaces to offer meaningful insurance for the millions of people most in need of it.

Trump’s presidency is the work of an incompetent and likely irrational madman. If not crazy in the clinical sense, he is unhinged from reality a substantial part of the time. He does not understand government, has failed to staff multiple critical leadership positions throughout the government and spends a huge amount of time golfing. He still lies constantly and is unnaturally obsessed with Hillary Clinton and with undoing everything President Obama accomplished. He is in constant conflict many of his “advisors” in the White House. Most importantly, he is set upon undermining the free press which is protected by the very same Constitution he swore to uphold on January 20.

Trump’s “eye-twitching” is the real deal, not make-believe or only for effect. He is the only president in history who took the oath of office knowing that his real intent was to undermine the federal government. His uber-entitled cabinet members, when they’re not undermining environmental protections, are flying around on private jets. His coterie of family members and true believers are enriching themselves at the expense of everyone else.

As one commentator has accurately observed,

It’s become standard for reports coming from the inside of the White House to acknowledge, slyly at first but now overtly, that Trump is in constant need of managing. He believes false reports and refuses to read truthful ones. He lashes out at anyone who hasn’t lied for him adequately. There are now entire reports devoted to his rage, his anger, his madness and his inability to accept responsibility. [http://slate.me/2ggY2xy, bold in original]

This is the situation for which the 25th Amendment to the Constitution, ratified in 1967, was designed. Whether or not he is a moron, as the Secretary of State recently labelled him, and even if not “crazy” in the clinical sense, he is certainly mentally unstable and incapable of responsibly executing the duties of the high office he occupies. Recall that he has access to the nuclear firing codes and is the Commander-in-Chief of the armed forces.

Unfortunately, the 25th Amendment, drafted by a senior senator from Indiana with the counsel of a constitutional law professor at Fordham, contains much vague language that makes invocation even more fraught than it would, in all events, be. It has also led to some sloppy analysis and commentary about what the amendment means. There are, for example, two alternative means for removing the president due to inability to perform. Sometimes, they are conflated by well-intentioned commenters on this most serious of constitutional questions.

One method is that the “Vice President and a majority of either the principal officers of the executive departments” (i.e., the Cabinet) may declare in writing that “the President is unable to discharge the powers and duties of his office.” In that case, the “Vice President shall immediately assume the powers and duties of the office as Acting President.”

The amendment then states that the President can make a written declaration that he no longer has an “inability,” at which point he resumes his office, unless the Vice President and a majority of the Cabinet declare in writing that the President continues to be “unable” to do his job. In the case of such conflicting declarations, Congress must decide. That decision requires a two-thirds vote (known as a super-majority) of both the House and the Senate. If Congress concurs with the Vice President-Cabinet majority, the Vice President remains Acting President; if not, the President resumes his office.

It seems pretty clear that the crafters of the amendment did not want to make it easy to remove a president. That was probably wise, but now the unthinkable has happened. A president with the emotional makeup of a ten-year-old has been elected and the Republican Party is prepared to support him no matter what he does.

This brings us to the second method of removal under the 25th Amendment. To understand it, you simply substitute “a majority of … the principal officers of … such other body as Congress may by law provide” for the ‘a majority of the Cabinet.’ Everything else in the written declarations process remains the same, including the role of Congress to resolve conflicts between the President and either the Vice President-Cabinet majority or the “Vice President and other-body” majority.

This appears to be a dead letter because Congress has never created that “other body” with a group of “principal officers” who could vote on the President’s “inability” to do his job.

It may occur to you that there is a potential circularity in the alternative method. This appears so because the Congressional creation of the alternative body must be provided “by law” enacted by Congress. Since Congress cannot by itself enact a law, it could be argued that the alternative body can only be created with the cooperation of the sitting president who must sign the legislation. No one would expect a sitting president expecting a political attack by his own Cabinet would ever sign such legislation to make it easier to remove him. The answer, I believe, is the second method probably would have to be set up by a responsible and rational president who was not expecting a removal effort against him. Once the president has become irrational, he simply won’t cooperate with the Congress on any alternative removal mechanism and, thus, the alternative removal mechanism could not be used.

The apparent assumption of the drafters of the 25th that the President and the Congress would always act in advance of a crisis and do so responsibly seems naïve in the current context. In any case Congress has never passed a law to create the alternative body to address the “inability” of the President to perform his duties and, in the present political setting, it is unlikely to do so.

Where, then, do we end up? With Sheriff Mueller securing indictments. The Republicans and their news agents at Fox News are, naturally, parroting Trump’s continuous efforts to deflect attention elsewhere, usually to Hillary Clinton. Like some B-grade crime movie, Trump keeps screaming, via Twitter, “look, look, it’s not me/us, she’s getting away! Get her!”

At this point it’s a bit late for Trump and his gang to get out of town, so Sheriff Mueller will just have to finish the job he started. Trump and Fox will continue to try to undermine him. Maybe Trump will try to fire him. That would be a fatal mistake. If Trump is counting on the Sheriff to blink first, that also is a mistake. Manafort is in for a rough spell if he is found guilty, so maybe he will do the smart thing and start telling the truth. Then whose eyes will be twitching?