The Impeachment Inquiry, education of the electorate, and the facts

House Speaker Nancy Pelosi announced on September 24, 2019 that the House would proceed with an impeachment investigation, using the six committees currently investigating Donald Trump and his administration.

The immediate stimulus for Pelosi’s change from her previous position of opposing an impeachment inquiry was the failure of the Trump administration to transmit to Congress a whistle-blower complaint as required by law, and Donald Trump’s public admissions that he had raised his desire for an investigation of Joe Biden and his son Hunter Biden with respect to their activities relating to the Ukraine, in a telephone conversation with Ukrainian President Volodymyr Zelensky on July 25, 2019.

Pelosi made it clear that the investigation would be a broad one, and would not be limited to the alleged pressuring of Ukrainian president Zelensky on July 25, despite the fact that some lawmakers and even commentators had been arguing for just such a narrow investigation.

Given the multiple alleged crimes and outrages committed by President Trump, the question arises as to which should receive priority.

A cogent answer to this question was provided in an excellent article in LAWFARE. See

Susan Hennessey, Quinta Jurecic, and Benjamin Wittes, “So You Want to Impeach the President,” LAWFARE, September 24, 2019 (2:02 p.m. ET).

The authors make a compelling case that the most important categories of crimes and abuses of power should be investigated, but not all offenses. They understand, rightly, that the inquiry must be organized in a manner which makes for a coherent narrative which the electorate can understand.

It would be a mistake to assume that the only purpose of the inquiry is to gather facts to inform the drafting of articles of impeachment. Equally important, if not more important, would be the objective of educating the American people, and in particular potential voters, as to the facts and the law regarding the offenses which Mr. Trump has allegedly committed.

For only by shifting the ground of discussion from the realm of political opinion to the hard ground of detailed facts and law regarding Trump’s alleged offenses will the Democrats have any chance of piercing the bubble of lies and distortions which the president and the Republicans have been spinning, for over three years.

What we need is a sharp and detailed focus on the facts. While a cogent development and presentation of the facts may at times seem to be a little plodding, over time it should have a powerful cumulative effect. At the end, the American people and likely voters should have a much better and better grounded understanding of what Trump and his enablers and agents have done, why it is significant, and why articles of impeachment should be drafted and voted upon.

Spirit of Publius

Posted in Bribery, Cover-up, Donald J. Trump, Grounds for Impeachment, High Crimes and Misdemeanors, Impeachment | Tagged , , , , , , , , , , , , , | Leave a comment

Trump the Authoritarian: Neo-Nazi’s and other neo-fascists

http://preview.tinyurl.com/yawqxua3

Donald Trump was notoriously slow in condemning the support of White supremacists and neo-Nazis during the 2016 presidential campaign. Now in his statements following the neo-Nazi and alt-right demonstrations in Charlottesville, where one of their adherents drove a car into a crowd killing a young woman and injuring many others, his instinctive support for these groups has been quite evident.

In his first statement, he spoke of the “fine people” who were among the alt-right and neo-Nazi demonstrators in Charlottesville, North Carolina. It took him two days to condemn them, in a speech which seemed written by his staff to appease the enormous wave of criticism that followed his first statement. Shortly thereafter, he defended his original statement and showed once again where his sympathies lay.

This and many other actions by Trump have revealed for all to see his innate authoritarian tendencies. His assault upon facts and the truth, and the press and other media which report facts to the public and analyze and interpret these facts in seeking connections and larger truths, is a striking aspect of this authoritarian bent. His omission of any reference to Jews in the White House’s annual Holocaust memorial statement was remarkable, and no accident. In Charlottesville, neo-Nazis were filmed chanting anti-Semitic slogans such as “Jews will not replace us,” and repeating other slogans literally translated from the Nazi lexicon, such as “Blood and Soil” (“Blut und Boden”).

Trump’s infamous lies, from his lies charging Barack Obama was not born in the United States during the “birther” movement up to the present, have revealed his racist sympathies or at least his willingness to lend white supremacists tacit backing to gain their support.

We have been so accustomed to Trump’s lies and his other violations of our democratic norms and institutions such as his constant defamation of journalists and the press, his continuing efforts to obstruct justice — by firing FBI Director James Comey, attacking Robert Mueller and his team, or trying to intimidate and shape the testimony of witnesses in the Mueller investigation — that such behavior has become accepted as normal or “normalized”.

We are worn down by the constant assault of lies. These actions become so “normalized” that they begin to be accepted with a shrug of the shoulder by not only his supporters but also many of his critics. We begin to acquiesce in such actions, thinking or saying, “Oh, that’s Trump. That’s just the way his is.”

Yet we must recognize Trump’s assaults upon the facts, upon the truth, upon the press, and his sympathies toward and willingness to use neo-Nazi and other neo-fascists to further his political goals, for what they are — grave attacks upon and threats to American democracy and the rule of law.

Before the election, it may be recalled, Trump refused to answer the question of whether he would accept the results, laying down a line of argument that the results would not be fair. Even after winning, he has maintained that three-five million votes in his favor were repressed or not counted.

In “On Tyranny: Twenty Lessons from the Twentieth Century” (March 2017), Yale historian Timothy Snyder has written an eloquent little book of stark warnings about the rise of authoritarianism, including the threats Trump represents in the United States. Now he has written an Op-ed in the New York Times which brings those 20 lessons directly to bear on Trump in the wake of his statements about Charlottesville.

See

Timothy Snyder (Op- ed), “The Test of Nazism That Trump Failed,” New York Times, August 18, 2017.

Snyder writes,

Until we have been tested, there is no sense in boasting of our goodness; afterward, there is no need. After Charlottesville, President Trump faced an easy test, and failed. When presented with an obvious opportunity to condemn the evil that was and is Nazism, he first waited, then equivocated, then read from a teleprompter, then relativized. He spoke of “very fine people on both sides.”

The Nazi groups that marched in Charlottesville cannot be considered a “side.” When they carry torches, they imitate Nazi rituals. When they perform the call and response of “Trump! Hail” and “Victory! Hail!” they are translating Nazi performances that we know better in German: “Hitler! Heil!” and “Sieg! Heil!” In Charlottesville, American Nazis shouted “Sieg! Heil!” as they passed a synagogue.

When the supporters of the alt-right chant that “Jews will not replace us,” they recapitulate the Nazi idea of a world Jewry that stifles the master race and must therefore be removed from the planet. When they shout “Blood and soil,” they repeat a Nazi slogan signifying that races will murder races for land without mercy and forever.

These views do not define a “side,” but rather a worldview in which the United States of America, with its Constitution and laws, and with its hard-won daily understandings of rights and responsibilities, would no longer exist.

The president has failed when no failure can be innocent. He has provided American Nazis with three services, for which they have thanked him: He has normalized their ideology; he has excused their actions; and he has given them hope that he will blame his opponents the next time America is struck by terrorism.

Snyder writes that while we might forget these slogans and events from the 1930’s, American Nazis and Trump remember history in their own particular ways.  The confederate statues are mostly from the early 20th century, but “the Confederate statues he admires are mostly artifacts of the early years of the 20th century, when Hitler admired the United States for its Jim Crow laws, and when Mr. Trump’s father was arrested at a Klan rally.”

Trump’s slogan “America First” is a summons to an alternative America, one that might have been real, one that did not fight the Nazis, one that stayed home when the world was aflame, one that failed its test.

That America might yet become our country. Whether or not it does now depends upon us. We are being tested, and so we will come to know ourselves.

Spirit of Publius

Posted in authoritarian tendencies, Cover-up, High Crimes and Misdemeanors, Obstruction of Justice, Uncategorized | Tagged , , , , , , , , , , , , | Leave a comment

Pressure leading toward impeachment builds

Donald Trump seems to be doing everything he can to hasten the day on which he will be impeached or otherwise removed from office.

See

Jennifer Rubin, “They could have Pence as president, for heaven’s sake,” Washington Post, August 11, 2017 (12:00 PM).

Michael McFaul, “Trump’s weakness against Putin is on display — again,” Washington Post, August 11, 2017 (2:47 PM).

Just this week, the American madman president threatened the North Korean madman president in a manner which evoked the use of nuclear weapons.

Also this week, he responded in a press conference in a flippant manner to a question about the Russian expulsion of 755 U.S. diplomatic staff, in retaliation for Barack Obama’s seizure of two diplomatic properties and expulsion of 35 Russian spies in December, 2016. Trump did not mention the Russian intervention in the U.S. election in 2016, and didn’t explain that the December expulsions and other measures were in response to the Russian intervention.

Barack Obama may have made a mistake by seizing Russian properties and expelling Russian diplomats in December 2016, instead of adopting real economic sanctions with a sharp bite proportional to the gravity of Russia’s intervention and its gross violation of the international law principle prohibiting intervention in the domestic affairs of another state. Diplomatic tit-for-tat could be expected from the Russians, while Obama’s measures did not reference the international law principle of non-intervention.

Had Obama invoked the international law principle of non-intervention and adopted economic sanctions characterized as lawful “countermeasures” under international law, the focus would have been on the U.S. demand for Russia to cease its violations of international law. That would have offered Russia an incentive for ceasing its intervention activities. This, however, did not occur.

In the present case, had the the point been emphasized that the December “sanctions” against Russia were wholly justified under international law as “countermeasures”, and not merely actions any state is free to take (known as “retorsions”), the wholly unjustified nature of the Russian expulsions of U.S. diplomatic staff would be glaringly evident. In fact, Trump could still characterize those actions as countermeasures, if that is he accepted the fact that the Russians had intervened in our election.

The fact that Donald Trump does not acknowledge that intervention, and that he has initiated no retaliation against Russia for its expulsions of 755 American diplomats, is inexplicable in itself.

His failure to ever criticize Putin or Russia, to ever admit the validity of U.S. intelligence agencies’ finding that Russia intervened massively in the 2016 election, and now to take retaliatory steps against Russia for its wholly unjustified expulsion of American diplomatic personnel, adds further strong evidence for the proposition that Trump is under the power of Putin and the Russians, and that he is in effect controlled by them when it comes to anything involving U.S.-Russian relations.

The Trenchant Observer

Posted in Donald J. Trump, Grounds for Impeachment, Impeachment, treacherous actions, Trump subservience to Putin | Tagged , , , , , , , , , , , , | Leave a comment

New Commentary on Need for Trump to be Removed

(1) Charles M. Blow, “‘First They Came For …’”, The New York Times, July 27, 2017. Blow quotes Martin Niemöller, as follows:

First they came for the Socialists, and I did not speak out — because I was not a Socialist.
Then they came for the trade unionists, and I did not speak out — because I was not a trade unionist.
Then they came for the Jews, and I did not speak out — because I was not a Jew.
Then they came for me — and there was no one left to speak for me.

(2) Charles M. Blow, “Satan in a Sunday Hat,”New York Times, July 31, 2017. On Trump’s character, Blow said,

You can’t transform mountebanks into menschen. Character is like concrete: You can make an impression when it’s freshly poured, in its youth, one could say, but when it sets, it’s impervious to alteration. Trump has always been vile, dishonorable and dishonest. That hasn’t changed even when draped by the history, majesty and pageantry of the presidency.

(3) Ross Douthat, “A Trump Tower of Absolute Folly,” July 26, 2017.

Trump hasn’t had a stroke or suffered a neurological disaster, and his behavior in the White House is no different from the behavior he manifested consistently while winning enough votes to take the presidency.

But he is nonetheless clearly impaired, gravely deficient somewhere at the intersection of reason and judgment and conscience and self-control. Pointing this out is wearying and repetitive, but still it must be pointed out.

You can be as loyal as Jeff Sessions and still suffer the consequences of that plain and inescapable truth: This president should not be the president, and the sooner he is not, the better.

(4) John Sipher and Steve Hall, “Oh, Wait. Maybe It Was Collusion, New York Times, August 2, 2017.

John Sipher (@john_sipher), a former chief of station for the C.I.A., worked for over 27 years in Russia, Europe and Asia and now writes for The Cipher Brief and works for CrossLead, a consulting company. Steve Hall (@StevenLHall1) is a former C.I.A. chief of Russian operations and a CNN national security analyst.

Posted in Cover-up, Donald J. Trump, Impeachment, Obstruction of Justice, Remmoval from Office, Trump team interactions with Russia | Tagged , , , , , , , , , | Leave a comment

Update: Trump’s Ongoing Obstruction of Justice (October 10, 2017) — with links to Brookings Report

Update (October 10, 1017)

Jennifer Rubin has pointed out and summarized the powerful public case that President Donald Trump has committed obstruction of justice, written by Barry Berke and Noah Bookbinder, and Norman Eisen, and published by Brookings today.

See,

Jennifer Rubin, “Laying out a comprehensive case that Trump obstructed justice,” Washington Post, October 10, 2017 (11:15 AM)

Barry Berke,Noah Bookbinder, and Norman Eisen, “REPORT: Presidential obstruction of justice: The case of Donald J. Trump,” Brookings, October 10, 2010 (108 pp.) The Report may be downloaded here.

The Appendix may be downloaded here.

With this evidence already in the public record, one can only imagine the additional evidence that Special Prosecutor Robert Mueller has developed, and will use in forthcoming indictments and his report to the Congress.

***

Original article (published on July 22, 2017)

President Donald J. Trump has for some time been engaged in an ongoing effort to influence Robert Mueller’s investigation of his and his associated ties with Russia, their cooperation and collusion with Russia, and the potential conspiracy they participated in to influence the 2016 elections in the United States.

Strong prima facie case exists in the public record, in the form of James Comey’s testimony before Congress, and in the president’s own public admissions that Trump has committed obstruction of justice in attempting to get
Comey to back off on the Michael Flynn inquiry, and fired Comey to achieve that purpose and to halt the investigation in to his own affairs.

But few commentators have focused on the fact that on an almost every day basis, Trump has been trying to influence the investigation, with threats against Mueller and other actions.

Consider his behavior in the light of the following provisions of the relevant federal statutes, as stated in the United States Code.

RELEVANT PROVISIONS OF U.S. CRIMINAL LAW BEARING ON OBSTRUCTION OF JUSTICE

18 USC Ch. 73: OBSTRUCTION OF JUSTICE
From Title 18—CRIMES AND CRIMINAL PROCEDUREPART I—CRIMES

§1505. Obstruction of proceedings before departments, agencies, and committees

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

§1512. Tampering with a witness, victim, or an informant


(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;

(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process; or

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—

(1) attending or testifying in an official proceeding;

(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;

(3) arresting or seeking the arrest of another person in connection with a Federal offense; or

(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;

or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.

(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.

(f) For the purposes of this section—

(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and

(2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

(g) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance—

(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or

(2) that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.

(h) There is extraterritorial Federal jurisdiction over an offense under this section.

(i) A prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred.

(j) If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

§1515. Definitions for certain provisions; general provision

(a) As used in sections 1512 and 1513 of this title and in this section—

(1) the term “official proceeding” means—

(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;

(B) a proceeding before the Congress;

(C) a proceeding before a Federal Government agency which is authorized by law; or

(D) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce;

(3) the term “misleading conduct” means—

(A) knowingly making a false statement;

(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;

(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;

(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or

(E) knowingly using a trick, scheme, or device with intent to mislead;

(6) the term “corruptly persuades” does not include conduct which would be misleading conduct but for a lack of a state of mind.

Readers may analyze President Trump’s actions, and those of others caught up in Robert Mueller’ investigation into ties to and potential conspiracy with Russians in the light of the texts of these statutes.

Spirit of Publius

Posted in Cover-up, Donald J. Trump, High Crimes and Misdemeanors, Impeachment, Obstruction of Justice, Trump team interactions with Russia | Tagged , , , , , , , , , , , , , , , | Leave a comment

Articles of Impeachment — Drafts and motions

Congressman Brad Sherman (D-California) has introduced an Article of Impeachment of President Donald J. Trump in the U.S. House of Representatives. The motion was co-sponsored by Congressman Al Green (D-Texas).

See,

Brad Sherman, Press Release, “Congressman Sherman Introduces Article of Impeachment: Obstruction of Justice,” July 12, 2017.

The text of House Resolution 438 is found here. It provides as follows:

115th CONGRESS
1st Session
H. RES. 438

Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

IN THE HOUSE OF REPRESENTATIVES

July 12, 2017

Mr. Sherman (for himself and Mr. Al Green of Texas) submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

Resolved, That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.
ARTICLE I

In his conduct while President of the United States, Donald John Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed and impeded the administration of justice during a Federal investigation in that:

Knowing that Federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that Federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, Donald John Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.

The pattern of behavior leading to the conclusion that he sought to cause the hindrance or termination of said investigation(s) include the following:

(1) Requesting that the Director of the Federal Bureau of Investigation curtail the investigation of the activities of General Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request.

(2) Making a determination to terminate the Director of the Federal Bureau of Investigation, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties.

(3) Despite offering differing rationales for the termination of the Director of the Federal Bureau of Investigation, admitted subsequently that the main reason for the termination was that the Director would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States.

(4) Stated that, once he had terminated the Director of the Federal Bureau of Investigation, the pressure of said investigation had been significantly reduced.

In all of this, Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

For background on H. Res. 438 and other possible texts of Articles of Impeachment that might lead to the removal from office of President Trump, see

Phillip Carter, “Articles of Impeachment for Donald J. Trump: A first draft of an impeachment bill for the president,” Slate, May 16 2017 (2:56 PM).

Christine Mai-Duc, “Brad Sherman, an L.A.-area congressman, is standing alone on impeaching Trump,” Los Angeles Times, June 25, 1017 (3:00 a.m.).

Cristina Marcos, “House Democrat files article of impeachment against Trump,” July 12, 1017 (01:53 PM EDT).

Clare Foran, “House Democrat Escalates Call for Impeachment,” The Atlantic, The Hill, July 12, 2017.

See also,

Sonam Sheth, “House bill that would allow Congress to remove Trump from office gains momentum after Trump’s feud with ‘Morning Joe’,” Business Insider, July 1, 2017 (4:25 PM).

Spirit of Publius

Posted in Cover-up, Donald J. Trump, High Crimes and Misdemeanors, Impeachment, Obstruction of Justice, Remmoval from Office, Uncategorized | Tagged , , , , , , , , | Leave a comment

Philip Lacovara: “Comey’s statement is sufficient evidence for an obstruction of justice case”

Even before James Comeyś testimony on June 8, 2017, Philip Lacovara, a former Watergate prosecutor, set forth a cogent argument that, based solely on the facts related in Comey’s writen statement released the day before, there was an obstruction of justice case against President Donald Trump. His arguments merit careful consideration.

See

Philip Allen Lacovara, “I helped prosecute Watergate. Comey’s statement is sufficient evidence for an obstruction of justice case,” Washington Post, June 7, 2017.

Lacovara writes,

Comey proved what Director of National Intelligence Daniel Coats and National Security Agency Director Michael S. Rogers carefully avoided admitting in their testimony on Wednesday — that the president had specifically attempted to shut off at least a major piece of what Trump calls the “Russia thing,” the investigation into the misleading statements by fired national security adviser Michael Flynn concerning his role in dealings with the Russians. This kind of presidential intervention in a pending criminal investigation has not been seen, to my knowledge, since the days of Richard Nixon and Watergate.

Comey’s statement meticulously detailed a series of interventions by Trump soliciting his assistance in getting the criminal probe dropped. These details are red meat for a prosecutor. Presumably, the team of experienced criminal prosecutors that special counsel Robert S. Mueller III has assembled will be following up on this crucial testimony, which rests on contemporaneous memorandums that Comey was sufficiently alarmed to prepare immediately after receiving the president’s requests.

The president dropped the other shoe on May 9, summarily firing Comey. The White House initially blamed this action on Comey’s actions during the 2016 campaign, but within the week Trump admitted that the cover story was a sham. He brazenly stated that he fired Comey in order to bring the “Russia thing” to a close, and he bragged to senior Russian officials in a private Oval Office meeting that this is what he thought that he had accomplished by sacking Comey.

Comey’s statement lays out a case against the president that consists of a tidy pattern, beginning with the demand for loyalty, the threat to terminate Comey’s job, the repeated requests to turn off the investigation into Flynn and the final infliction of career punishment for failing to succumb to the president’s requests, all followed by the president’s own concession about his motive. Any experienced prosecutor would see these facts as establishing a prima facie case of obstruction of justice.

URGENCY: The need for Robert Mueller to move quickly to indict Michael Flynn and other Trump associates

There is a need on the part of Robert Mueller, the Special Counsel, to move quickly to bring charges against at least some of the individuals who appear to have clearly committed felonies, whether by failing to register as an agent of a foreign power, before they acted as one, violated the Logan Act by interfering with the foreign policy of the United States before they assumed office, or lied to the FBI.

Michael Flynn has reportedly committed all three violations, whereas Paul Manafort failed to register as a foreign agent until days ago. Efforts at post hoc registration months or years after the fact are not legally effective. The felony has already been committed.

Robert Mueller needs to act quickly, in view of the fact that President Trump continues to try to obstruct justice by threatening and attacking witnesses (e.g., Comey) and even prosecutors (Mueller and his team).

Trump is fully capable of firing Mueller when the investigation gets too hot. Should he do so, so long as a majority in the House and the Senate support him — in what is becoming in essence an all-out struggle for control of the government — Trump and Attorney General Sessions could potentially operate with no further checks on their exercise of power.

Spirit of Publius

Posted in Cover-up, Donald J. Trump, Grounds for Impeachment, High Crimes and Misdemeanors, Impeachment, Logan Act, Obstruction of Justice, Trump team interactions with Russia | Tagged , , , , , , , , , | Leave a comment

Donald Trump, pro-Russian U.S. president, fires Comey and meets with Lavrov

See Michael Crowley, “Trump’s big Russia reset; With Washington in an uproar over James Comey’s firing amid his Russia probe, the president and his secretary of state welcomed Foreign Minister Sergey Lavrov to town,” Politico, May 10, 2017 (updated 05:35 PM EDT).

Donald Trump and his family are involved in massive conflicts of interest. Because he hasn’t released his taxes, we don’t know what his ties to Russia have been and are today.

He habitually lies, about matters great and small. Most recently, on May 9, he fired FBI Director James Comey, and put out an explanation of his reasons that asserted he had acted in response to memos from the Department of Justice asking for Comey’s removal. This turned out to be a giant lie, as Trump himself admitted in an interview with Lester Holt of NBC news on May 11.

The real reason it seems, according to Trump’s own words, was that he was unhappy with the investigation into Russian interference in the elections and collusion between his associates and the Russians.

The day after firing Comey, on May 10, Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak met Trump at the White House, showing broad smiles in photos released by the Russians. The press was barred from the meetings. Earlier, Secretary of State Rex Tillerson met with Lavrov at the State Department. No press conference was held.

The Influence of Russia Over U.S. Foreign Policy

The influence of Russia over U.S. foreign policy is revealed by the fact that no press conference was held and the neither Tillerson nor Trump voiced public criticism of Putin or Russia following their meetings with the Russians on May 9, 20217.

Specifically,

1. No criticism was made of the Russian invasion and purported annexation of the Crimea in February and March, 2014. Both constitute gross violations of international law and the prohibition of the international use of force embodied in Article 2 paragraph 4 of the United Nations Charter;

2. No criticism was made of Russia’s invasion of the eastern Ukraine provinces of Donetsk and Luhansk with irregulars in the spring and summer of 2014, and by regular forces beginning in August, 2014. The invasion constitutes a grave violation of international law and the U.N. Charter.

3. No criticism was made of Russian responsibility for failure to comply with the terms of the Minsk II Protocol of February 12, 2015, which outlines measures aimed at securing the withdrawal of Russian forces and the restoration of sovereignty over all of Donetsk and Luhansk provinces to the Ukraine. These measures include, significantly, return to the Ukraine of control over the border with Russia.

4. No criticism was made of Russian support for Bashar al-Assad’s government Syria in the commission of war crimes and crimes against humanity, and Russia’s direct commission and participation in the commission of those crimes since 2015.

5. No criticism was made of Putin and Russia’s violations of human rights within Russia itself, which include the assassination of leading opponent Boris Nemtsov on February 27, 2015, and the attacks with green liquids and chemicals on Alexei Navalny, currently the leading opposition figure, in Moscow within the last several months. The attacks are particularly ominous given the fact that the half brother of the North Korean Leader, Kim Jong Un, was assassinated by have liquids thrown on him in Kuala Lampur, Malaysia, earlier this year.

6. No mention was made of Russia’s intervention in the November, 2016 U.S. elections, while Lavrov’s assertions at the news conference at the Russian Embassy following the meetings that Russia did not intervene in the elections in any way was allowed to go unchallenged by the Trump administration.

Why has Trump avoided criticizing Putin or Russia?

Subordinate U.S. officials have at times expressed views critical of Russia. But Trump has not directly criticized Putin or Russia, although he has often criticized other countires and heads of state. He is, after all, the President, and the ultimate arbiter of U.S. foreign policy.

Often attention is focused narrowly on the question of potential collusion between the Trump campaign and Russian officials during the Russian intervention in the elections.

The real inquiry, however, should be much broader, and seek an explanation for why Trump has been so pro-Putin and pro-Russian since he began his campaign for the presidency in 2016.

What is the explanation?

The only one that has been offered, with substantial supporting evidence, is that he has been compromised by the Russians.

If he has not been compromised, what is the explanation for his pro-Russian attitudes and policies?

Spirit of Publius

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The Logan Act makes eminent good sense, and it should be enforced

The Logan Act makes eminent good sense, and it should be enforced.

It provides:

18 U.S. Code § 953
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

For background and consideration of whether the Act applies to Michael Flynn and Donald Trump, see Charlie Savage, “The Logan Act: How Flynn’s Exit Revived Interest in a Dusty, Old Law,” New York Times, February 14, 2017.

The fact that it has not been enforced in the past is no reason not to enforce it now. Undoubtedly, it has had a deterrent effect in the past. In recent times, the major occasions when it has been ignored, that we know about, are when Richard Nixon had back-channel negotiations with the North Vietnamese aimed at preventing Lyndon Johnson’s peace negotiations in Paris from bearing fruit. After Nixon was elected, seven more years of the Vietnam War ensured, with many thousands of additional U.S. and Vietnamese deaths. The Logan Act was probably not enforced because the facts of the back-channel negotiations were not publicly known, and because the Justice Department under John Mitchell was tightly controlled by Richard Nixon. Readers will remember or have read about the “Saturday Night Massacre”.

In the case of Nixon and the Vietnam Peace negotiations, it is clear that it would have been in the nation’s interest if the Logan Act had been applied, or even better if Nixon had had a reallistic appreciation that it might be applied.

The second case that is often cited is that of Ronald Reagan, who had back-channel negotiations with the Iranians aimed at preventing the release of the U.S. hostages who were being held in the U.S. Embassy, before the election and then before Reagan took office. When he did take office, they were released.

Again, it would certainly have been in the nation’s interest if Reagan had not interfered in Jimmy Carterś efforts to get the hostages released. Reagan’s behind-the-scenes negotiations were thoroughly illegitimate, and served to undermine the integrity of the electoral process which led to his election.

Now we are face3d with credible allegations that Donald Trump engaged in behind-the-scenes conversations with the Russians aimed at affecting the successful implementation of the sanctions imposed by Barack Obama, the lawfully-elected president of the United States in office at the time. Certainly, to suggest to the Russians that the Trump administration would relax the sanctions undermined these very sanctions. Again, it would have been very much in the nation’s interest if Trump and Michael Flynn, his national security adviser, had had a realistic appreciation that the Logan Act might be applied if they acted to undermine the foreign policy of the then sitting president.

The logic of the Logan Act is irrefutable. The practical problem in its application may be that we have not had a sufficiently independent Attorney General willing to apply the law. We should seek remedies for that shortcoming, perhaps by establishing an independent counsel to consider cases where those suspected of such criminal activities are members of the winning party in presidential elections.

Arguments have been and will be made that it would be impractical to enforce the Logan Act, because it could be interpreted broadly to include all sorts of activities we wouldn’t want to prosecute. This is a typical lawyer’s argument, and a typical prosecutor’s challenge. In practice many criminal statutes could be interpreted in an overbroad fashion, and it is always the job of the prosecutors to proceed against those individuals who have violated the statute in its core meaning.

Here, the core meaning of the Logan Act would clearly encompass Michael Flynn communicating with the Russian Ambassxador to downplay the significance of sanctions imposed by the Obama administration in response to Russian intervention in the U.S. elections.

If Trump himself violated the Logan Act, his violations should also be prosecuted. The Act establishes that a violation of its prohibitions is a felony.

If we are not going to prosecute one felony, in the most egregious of cases, who is to say what other felonies might not be prosecuted, such as Flynn’s alleged lying to the FBI?

The statute makes eminent good sense, If it did not exist, we would need to enact it.

It is a felony on the books today. It should be enforced. If it is not, we enter onto the slippery slope of deciding which felonies to prosecute in egregious cases, and which not. On that slope, at some point we will lose the rule of law, our constitutional government in accordance with the law.

Spirit of Publius

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Grounds for the Impeachment of President Donald Trump

The Emoluments Clause

The “emoluments” clause of the U.S. Constitution provides,

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.

–Article I, Section 9, Clause 8

Presidential Oath of Office

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

–Article II, Section One, Clause 8 of the United States Constitution

Impeachment and Removal from Office

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

–The Constitution, Article II, Section 4

If impeached by the House of Representatives, the President may be removed from office by a two-thirds vote as set forth below:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishmnet, according to Law.

–The Constitution, Article I, Section 3

See generally The Heritage Guide to the Constitution, Standards for Impeachment,” heritage.org.

Articles and Commentary

Norman Eisen, Richard Painter, and Laurence H. Tribe, “The Emoluments Clause: Its text, meaning, and application to Donald J. Trump, Brookings (Report), December 16, 2016.

Jesse Singal,”The Case for Donald Trump’s Impeachability,”New York Magazine, December 20,2016 (8:33 a.m.)

For now, the critical question is whether there exist grounds to impeach Donald Trump. The question of when and how that might happen is a separate issue.

Spirit of Publius

Posted in Bribery, Donald J. Trump, Electoral College vote on December 19, Emoluments Clause of the Constitution, Grounds for Impeachment, High Crimes and Misdemeanors, Impeachment, Remmoval from Office, Treason | Tagged , , , , , , , , , , | Leave a comment