Clarence Thomas Takes One for the Court

April 17, 2023 // 3 Comments »

Did Clarence Thomas do anything wrong in accepting gifts from a wealthy Republican, or is Thomas the victim of years of pent-up anger at the Supreme Court by Democrats? Yes.

According to an investigation by ProPublica, for more than 20 years Justice Thomas received lavish and expensive gifts, including trips on a private yacht and a private jet, from Harlan Crow, a Texas billionaire and real estate developer with a long record of support for Republican politicians. Under the ethic regulations which guide Supreme Court justices, it is not clear that Thomas had to report any of this (Thomas says the guidance he received affirmed he did not need to report any of the gifts as his angel, Crow, had no business before the Court and the trips were “personal hospitality,” a gift from a friend.)

ProPublica asserts that the Ethics in Government Act of 1978 required Thomas to report these gifts. This is most probably untrue. People do not report generally “personal hospitality,” such as Thomas’s vacations. It wasn’t until a few weeks ago that the Judicial Conference issued new guidelines saying free trips and air travel must now be reported. This was announced as a change in policy, meaning disclosure was not required in the past but would be in the future. It is as simple as that: The rules did not require reporting of trips in the past, but going forward they do.

So it appears while Thomas did not break the letter of these regulations, he certainly skirted the edge of what we’ll call propriety, the appearance of being on Harlan Crow’s extended payroll. For a guy who has lived so long in Democratic crosshairs it seemed an unwise thing for Thomas to do, even if legal. One theme of government ethics classes is you don’t have to demonstrate actual impropriety, you must avoid even the possible appearance of impropriety. Accepting lavish travel perks? Operating you own email server? Just not what regular Feds do, whether legal or not.

Thomas’ long war with the Left started with his confirmation hearings in 1991 after his nomination by President George H.W. Bush. Anita Hill, who worked for Thomas at the Department of Education and the Equal Employment Opportunity Commission, testified before the Senate Judiciary Committee Thomas sexually harassed her during that time. Her testimony ignited a national conversation about sexual harassment in the workplace and the treatment of women in the legal profession. It introduced many Americans to the vocabulary of pornography long before Bill Clinton soiled the waters (small world: Senator Joe Biden was the Chair of the Senate Judiciary Committee, which oversaw the confirmation process. Biden has faced criticism for his sexist handling of Hill’s testimony and for not allowing three other female witnesses to testify during the hearings.)

As a jurist criticism of Thomas has focused on three points. Many liberals disagree with Justice Thomas’s conservative judicial philosophy, which emphasizes originalism and strict interpretation of the Constitution. They argue that this approach leads to narrow interpretations of individual rights and protections, particularly for marginalized groups. Similarly, liberals criticize Justice Thomas for his opposition to affirmative action and other civil rights policies. They argue that his views on these issues are harmful to communities of color. Lastly, Thomas is known for being one of the least vocal members of the Supreme Court, rarely asking questions during oral arguments or engaging in public discourse about his opinions. Some liberals argue that this lack of engagement is problematic and makes it difficult to understand his reasoning on key issues. There are accusations he often has made up his mind along ideological lines before even hearing a case.

Thomas has more recently become a lightening rod for everything Democrats have come to hate about the Supreme Court, as the Court shifted rightward and decisions like Roe v. Wade went against standard liberal thinking. They see Thomas’ “corruption” as emblematic of the Court’s outsize power due to lifetime appointments, isolation from traditional Constitutional checks and balances, and virtual immunity from public pressure, making it a magnet for corruption and influence-peddling. They see Harlan Crow as having purchased direct access to one of the most influential and powerful men in America and argue that while Crow may not have a specific issue in front of the Court, he holds a generic interest in right wing causes and thus has bought himself a sympathetic judge for his broader Conservative agenda.

Things only got worse when it was discovered that Thomas’ spouse Ginni donated to Republican causes and sent texts cheering on the protests of January 6. A woman with political thoughts of her own! Nonetheless, Thomas is a man with a target on his back.

The only real check and balance on Supreme Court justices is formal impeachment and removal from the bench, so it not surprising at the first sign of impropriety Democrats like AOC have immediately called for Thomas to be impeached. It won’t happen; the standards for impeachment are high, whether what Thomas did actually qualifies is far from clear, and a partisan Congress will never go along. Only one Supreme Court justice has ever been impeached, Samuel Chase, in 1804 for alleged political bias in his judicial conduct. The Senate held a trial, but ultimately acquitted Chase of all charges. No other Supreme Court justice has been impeached since then. Justice Abe Fortas did resign over 50 years ago over money issues, ahead of a likely try at impeachment.

Some have already gone further than the expected calls for hearings and investigations. The New Republic writes “The Democrats need to destroy Clarence Thomas’s reputation. They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.” The magazine went on to call him the “single worst Supreme Court justice of all time. Clarence Thomas is an embarrassment to the Supreme Court and the country, and the worship of this man on the right is one of the greatest symbols of their contempt for standards, the law, precedent, and democracy.”

The hyperbole gives it away — all of this is another tempest to fill in the dead space between Orange Man Bad stories. Thomas should not be proud of his actions, but nor should he face impeachment, never mind some sort of public drawing and quartering of his reputation, over what he did. Clarence Thomas is taking one for the Court.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Trump (and Georgia) On My Mind

May 14, 2022 // 2 Comments »

One of my kids is studying law, and I’ve read a bit over her shoulder as she prepped for exams. Two critical things stand out: unlike in literature, words in the law have very specific meanings (lie, fraud, possess, assault), and intent matters quite a bit. The latter is very important, because people say things all the time they do not mean, such as “If Joe in Sales misses that deadline I’m gonna kill someone.” No one’s life is actually in danger, we all understand. Same for all those neighbors who were going to but never did move to Costa Rica if Trump was elected.

Misunderstanding words as moving from the general to the very specific when you pull them out of a conversation and try to bring them to court, and determining intent based on what you “believe,” are really at the root of the ever-growing string of failed legal actions against Trump (there are some 19 still pending.) We have, and this is just hitting the highlights, all of Russiagate, the Mueller Report, Impeachment I, Impeachment II, Stormy Daniels, failed accusations of real estate valuation fraud in New York and most recently, a grand jury seated to look into election fraud in Georgia.

For example, in Impeachment I, the Ukraine caper, the entire brouhaha hinged on Donald Trump’s own words in the transcript of his call with the Ukrainian president. But did they mean Trump was demanding foreign interference in the 2020 election? Or was he asking an ally to run down unethical actions by Joe Biden as a public service before he might become president? What was Trump’s intention when he said “A lot of people want to find out about that so whatever you can do with the attorney general would be great.” Later in the call Trump suggested some aid to Ukraine might be withheld, though not in specific reference to any investigation into Biden.

The people who brought the impeachment proceedings decided all that constituted an illegal solicitation of a foreign in-kind contribution to Trump’s re-election campaign, maybe even extortion. The allegation was referred to the Justice Department, which declined charges. Many Democrats though that unfair, failing to see the lack of anything coming of it (i.e., no investigation by Ukraine), the lack of anything withheld (the aid was eventually delivered) and overall the lack of intent to commit a crime by Trump. The legal definition tests for words like solicit and extort were not met and Justice correctly dumped the case and there was no conviction in the Senate.

Same story in New York, where the facts seemed to support Trump valued real estate at a lower price for tax purposes and a higher price when used as loan collateral. It’s called valuation and is legally done all the time. But some decided saying one thing to one person and another to another person to gain something was “fraud,” and everyone pursuing the case forgot that they also had to prove intent, that Trump lied with the intention to commit a crime and gain by ill begotten methods. The case rightfully collapsed.

Yep, same with the Stormy Daniels saga, where the facts seemed to be Trump, via Michael Cohen, paid money to Stormy to keep quiet about their affair. Sleazy enough, but paying someone as part of a non-disclosure agreement is not illegal. It would be a crime if the money was paid by Trump with the intent of influencing an election, which he suggested was not true, the cash-for-silence was maybe to protect his marriage. Campaign finance laws require proof a person was willfully violating the law. Prosecutors would have to demonstrate that willingness by Trump alongside showing his principal goal was to influence the election. If this kind of case would have ever reached court, Trump would have simply denied intent.

Another example can be found in the incitement allegations surrounding the speech Trump made just before his supporters entered the Capitol building January 6. A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a right to say so. Brandenburg v. Ohio refined the modern standard to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawlessness.

The key is always intent. You have to prove, not just speculate, the speaker wanted to cause violence. Listeners’ reaction to speech is not alone a basis for taking action against a speaker. You’d need to prove Trump wanted the crowd to attack the Capitol and set out to find the words to make that happen. It ain’t gonna fly for the January 6 Committee.

Which brings us to Georgia, where the NYT asks “Will Trump Face a Legal Reckoning in Georgia?”  On January 2, 2020, facing an election loss, Trump called Georgia’s Secretary of State to demand he “find 11,780 votes,”  one more than Joe Biden’s tally. Did Trump encourage the secretary to commit election fraud? That prosecution will fail, as did all of the ones above, for the same two reasons: words are not solely what they seem, and intent is hard to prove.

For example, to the Democratic lay person “find” means commit election fraud to come up with votes. But well before anything goes to court, it will be made clear that “find” in this context can also mean, in just one example, recount all legal ballots to see if a mistake can be found which legitimately sends more votes to Trump. The other issue is again intent; to prove solicitation of election fraud, Georgia law requires a person intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud. Trump and his associates need only to maintain they meant “find” as in recount, not as in cheat. Case closed.

In seeing the same mistakes made over and over, you’d start to think maybe the Democrats need some better lawyers. But don’t worry. Democratic lawyers know just as well as Republican lawyers none of these cases ever had a chance in a real court. Their purpose was purely political, to manufacture some headlines, to influence voters, to create the impression Trump has to be guilty of something if only he could be stopped from wriggling away. The goal is to convince voters to ignore the rule of law and take matters into their own hands in 2024 to stop Trump.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Trump, A Man in Full

January 22, 2021 // 2 Comments »

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Requiem for the U.S. Department of State, Part II of II

May 26, 2020 // 10 Comments »

The Department of State has been adrift for the past handful of administrations, an agency without agency, personnel, or budget, in search of a mission. It is the essential agency which does nothing that matters anymore. As seen in Part I of this article, a number of secretaries of state, from the politically royal to the politically disabled, have failed to impact diplomacy. How did this all happen?

Traditional diplomacy began as a necessary expedient. Nations had business with one another, but messages could take weeks to travel from one capital to another. Instead, ambassadors were sent out, empowered in the case of the U.S. as the President’s personal representative to speak in his name with the full force of the United States. Heady stuff. Messages back to Washington would report final results, such Ben Franklin letting the boys at home know he’d knocked out a treaty with France against Great Britain so we might win the Revolution after all. Hundreds of year later communications improved to the point where world leaders can now text each other, but those ambassadors and embassies remain as if Ben was still out there.

Leaders came and went. For every Abraham Lincoln there were a lot of Millard Fillmore’s and Taylor’s (John and Zach) who mattered little. With exceptions along the way (FDR stand outs), presidents did not conduct first-name diplomacy or tie themselves up with the details of foreign affairs. They had secretaries of state for that. Everything shifted under Richard Nixon, whose interest in first-person diplomacy with China and reluctant ownership of the Vietnam War sent the State Department into a supporting role.

The change began under Nixon. Events both internal and external to the U.S., its State Department, and the world, did the rest.

A Rubik’s Cube, Not a Chessboard

The world has changed even as the State Department is still largely configured for the early 20th century. State’s primary organizational unit is the nation-state, and so it divides itself into the “China Desk” or the “Argentina Desk.” Inside that unit, it is assumed the host country has a government that works more or less like ours, with a Foreign Ministry, some rational system of sending policies up to the leader, in most cases some sort of press, that kind of thing. So inside the country desk State organizes fiefdoms along subunits of Political, Economic, Press, and Trade. New diplomats arrive in foreign capitals to go off in search of their one-to-one counterparts. Everyone at Foggy Bottom assumes the basic framework applies from Albania to Zimbabwe. Over the years State has created regional divisions (East Asia) and topical divisions (Science and Tech) but overlaid these across the geographic divisions so that ideas skitter sideways and up and down simultaneously. The result is usually paralysis when it is not confusion. The problem is not determining who is in charge per se, but that 10-12 people all think they are in charge.

The days of seeing the world as a chessboard are over. It’s now closer to a Rubik’s Cube that Washington can’t figure out how to manipulate. In many cases no one in State can get to the policy task itself, busy as they are arguing over who has the lead on some issue. In most cases senior decision makers elsewhere in Washington leave State to its internal fussing and seek guidance elsewhere — CIA, NSC, the Pentagon.

No one outside of official Washington can appreciate how much 9/11 altered the way the U.S. Government thinks about itself. The shock changed the posture of the government from one of at times satisfied with passivity in its more distant foreign affairs to one demanding constant action. Presidents from that day forward would probably have preferred each Federal worker go out and strangle a terrorist personally, but if that was not possible everyone was to find a way to go to war. State never really has.

Things change slowly if at all. State has no tanks or battleships, just people as its primary way of getting things done. In 1950 State had 7,710 foreign service officers. Pre-9/11 they had 7,158. Today it’s still only about 8,000.

Growing Sophistication of Foreign Actors

The traditional image of the older gentleman from the embassy meeting with the local king is for the movies. Foreign actors have gotten much more sophisticated in their ability to demand VIPs to fly in to finalize deals, and in playing local staff off against the real decision makers scattered throughout Washington. Those foreign actors understand today State is less than a one-stop portal into the USG and more of just one player to manipulate alongside others.

In almost every nation, smaller bureaucracies allow easier bundling/unbundling of issues, something which befuddles State — Country X says if you want that naval base you have to cut American tariffs on cinnamon imports. State throws up its hands, paralyzed, knowing their real diplomacy will involve the Pentagon and whoever the hell does spice tariffs in what, Treasury? Commerce? Senator Johnson’s office, whose district controls most cinnamon packaging? The other side is scheming clever demands while State organizes Zoom calls. The joke inside the Department is deals abroad fail on diplomatic efforts inside the Beltway.

Similarly, in most places abroad the U.S. has three centers of representation who vie for the authority of the United States, and are played off one another by smart foreigners. The Department of Defense maintains relationships with foreign militaries. The intelligence community does the same with host country spies and cops. State tries with everyone left over. Depending on the country, the civilians State interfaces with may matter little in a power structure dominated by say the army, or the local version of the CIA. That renders the American ambassador second place on his own team, never mind in the eyes of the locals. That ambassador may not even know what his own country’s military or spies are up to, leading to naughty surprises and the loss of credibility as a hollow figurehead.

Militarization

Negotiating in Iraq with a minor tribal leader for safe passage, he asked me as the State Department representative how many goats I was offering. About five seconds into my response on the need for lasting friendships, an U.S. Army major cut me off saying “I can get goats” and I no longer mattered to the negotiation, the war, maybe the 21st century itself.

It is all about resources. The military has more people, more hardware, and more cash. From Great Britain to some valley in Garbagestan the military can offer new friends shiny tools (Section 1206 funding: for the first time since President Kennedy signed the Foreign Assistance Act of 1961, President George W. Bush allowed that the U.S. military would fund many weapons transfers directly from its own accounts, bypassing the State Department. Conspicuously absent from the debate over Section 1206 was Condoleezza Rice, America’s then Secretary of State.) State meanwhile needs a couple of days to arrange transportation to the meeting.

Stephen Glain’s State vs. Defense: The Battle to Define America’s Empire is a sober biography of the Department since World War II. The choice of word — biography — is significant, in that traces the decline in old age of State as America’s foreign policy is increasingly made and carried out by the Pentagon. In particular Glain understands the military is organized for the new world order.

“The yawning asymmetry is fueled by more than budgets and resources (though the Pentagon-State spending ration is 12:1), however. Unlike ambassadors, whose responsibility is confined to a single country or city-state, the writ of a combatant commander is hemispheric in scope. His authority covers some of the world’s most strategic resources and waterways and he has some of the most talented people in the federal government working for him. While his civilian counterpart is mired in such parochial concerns as bilateral trade disputes and visa matters, a combatant commander’s horizon is unlimited. ‘When we spoke, we had more clout,’ according to Anthony Zinni. ‘There’s a mismatch in our stature. Ambassadors don’t have regional perspectives. You see the interdependence and interaction in the region when you have regional responsibility. If you’re in a given country, you don’t see beyond its borders because that is not your mission.’”

Adding to the problem is about a third of State’s ambassadors are political appointees, amateurs selected mostly because they raised big campaign bucks for the president. The United States is the only first world nation that allots ambassador jobs as political patronage.

Self-Destruction

State’s once-valued competitive advantage was its from-the-ground reporting. Even there the intelligence community has eaten State’s sandwiches with the crusts cut off — why hear what some FSO thinks the Prime Minister will do when the NSA can provide the White House with real time audio of him explaining it in bed to his mistress? The uber revelation from the 2010 Wikileaks dump of documents was most of State’s reporting is of little practical value. State struggled through the Manning trial to show actual harm was done by the disclosures. Some 10 years later there hasn’t even been a good book written from them.

Under the Trump administration the State Department has seemingly sought out opportunities to sideline itself, now and in the future. Even before the 2016 election results were in, diplomats leaked a dissent memo calling for more U.S. intervention in Syria, a move opposed by Trump. Soon after Rex Tillerson took office, his diplomats leaked another memo very close to insubordination opposing the State Department’s role in Trump’s immigration plans. In yet another dissent memo, Foggy Bottom’s denizens claimed their boss violated a child soldier law. FYI: Nothing substantive came of any of those leaks/memos.

Everyone in the current White House knows how many scandals of the last few years have criss-crossed the State Department: slow-walking the release of Hillary Clinton’s emails (after helping hide the existence of her private server for years), turning a blind eye to Clinton’s nepotism hiring her campaign aides as State employees (remember Huma?), the Foundation shenanigans, the crazy sorrow of Benghazi remembered, the Steele Dossier and many things Russiagate and Ukraine. Most of the impeachment witnesses were from the State Department, including one who claimed to surreptitiously listen in on phone calls with his political appointee ambassador to tell all later to Congress. That’s an awful lot of partisanship woven into an organization which is supposed to be about being non-partisan.

Nobody trusts a snitch, Democrat or Republican. What White House staffer of any party will interact openly with his tattletale diplomats, knowing they are saving his texts and listening in on his calls, waiting? Hey, in your high school, did anyone want to have the kids who lived to be hall monitors and teacher’s pet as their lunch buddies?

America’s Concierge Abroad

What’s left is what we have, the State Department transitioned to America’s concierge abroad. It’s relevancy to top-tier foreign policy is questionable, and its work now mostly logistical. Embassies are great bases for intel work, military offices, the occasional evacuation, to grind out some visas, and for ceremonial events. Someone has to be out there to arrange VIP visits and tidy up local issues. For me, while stationed in the UK, I escorted so many Mrs. Important Somebody’s on semi-official shopping trips I was snarkily labeled “Ambassador to Harrod’s Department Store” by my colleagues. In Japan I found out my duties included re-authorizing radio certificates for American seamen under an early 20th century treaty.

One of The Blob’s greatest accomplishments has been to convince a large number of Americans everything pre-Trump was normal and everything since is extraordinary. That sets up the idea that extraordinary means are needed to deal with unique threats, and that sets up throwing away the rules because ends justify the means. Meh. The work known as diplomacy otherwise continues in some sort, albeit done by people outside the Department of State. Future presidents will need to change that, or, if history serves, live comfortably with it.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Biden My Time as Bernie Burns Out

March 16, 2020 // 56 Comments »

How did the Democrats end up with Joe Biden their presumptive nominee?
 

After three years of preparatory media artillery fire about diversity and change, those stupid pink hats, and chumming the electorate with promises of free college alongside all the healthcare-they-care-to-eat, Democrats started with six women, a couple of black people, the gay one, a huge mix of experience and background, and progressive ideas ranging from the necessary to the kooky.

Here’s the full list of players — Biden, Gabbard, Sanders, Warren, Bloomberg, Klobuchar, Buttigieg, Steyer, Patrick, Yang, Bennet, Delaney, Booker, Williamson, Castro, Harris, Bullock, Sestak, Messam, O’Rourke!, Ryan, de Blasio, Gillibrand, Moulton, Inslee, Hickenlooper, Swalwell, Walsh, Sanford, and some guy from West Virginia named Richard Ojeda.

How many of their faces can you picture?
 

The Democrat party ended up choosing the only candidate from 1958, 77-year-old Joe Biden. He’s old, he’s tired, he lost the race for president twice already (once for plagiarism and lying about his education), and he appears to be in some state of cognitive decline. Between the hair plugs and too-much botox he looks waxy, like grandpa putting himself out there for one last fling after grandma Obama passed away God rest her soul. That Biden is required to chose a woman as his VP as a sop to the last three years only serves to emphasize the tokenism of the moment — ironically it is the Democratic party which has demonstrated a woman, gay person, or POC can’t be elected president but here, see, we’ll put your photo on the refrigerator so everyone can see how hard you tried.

The entire premise of the Democratic primary was false. It misunderstood Trump’s election as a fluke if not an outright scam, and that The People wanted a revolution. This was sustained by a relatively small group of disconnected people who through cancelation culture, peer pressure, and the need to fill a 24/7 media vacuum convinced each other they were right. So when a mediagenic Hispanic woman won a nothing race by a few votes against a sleepy incumbent in the Bronx, they told each other they were right and AOC is the proof. The echo chamber made it seem they were always right as they serially proclaimed new saviors, off-stage The Squad, on stage Beto! and Pete predominantly, though Booker, Harris, Klobuchar and others were granted mini-moments after a decent debate performance or some minor event. Some call it the “pundit fallacy,” a belief driven inside the echo chamber that Americans are at heart progressive people who haven’t yet been educated to vote the way they really should.

The problem was as soon as the actual people were allowed a word it all fell apart. The primary narrowed very quickly. White voters didn’t like the black candidates. Novelty candidates like Yang and Steyer sucked up bandwidth and confused the electorate. Midwesterners were terrified of initiatives aimed at transgender, reparation, and illegal immigrant support blocks that existed only in the minds of candidates who read too much in the Atlantic and The Nation. Everyone wanted better healthcare but very few agreed a massive upheaval of our capitalist economic system was the way forward on that. The candidates went out of their way to ignore public opinion on these issues and alienate voters, especially purple voters. Maybe next time the party can find a progressive thinker who also likes to hunt deer.

Now quick, name one of Biden’s signature policy initiatives.
 

The second-to-last man standing, Bernie, was artificial. Unlike everyone else in the field, he started with a pre-built organization, fully-formed policies, and a cash load from 2016. He had a certain glow to him, having been treated so unfairly in 2016 but that did not help much when there was no anti-Hillary vote to glom. But while initial powerups allowed Bernie to survive, he never grew. The new voters he counted on never appeared, at least not for him. Voter turnout did increase on Super Tuesday compared with 2016 but most of those new voters went for Biden. Bernie was the rock band still touring behind its one smash hit; the audiences are the same people who loved them in the 70s, just older now, even as the size of the venues shrunk.

The process of elimination reality drove forward was nudged by old-fashioned party power plays. Black voters were massed by local pols in South Carolina to come out for Biden. Someone behind the curtain (almost certainly Obama) made the calls to Buttigieg and Klobuchar and told them, as he likely did in 2016 with Biden to clear the way for Hillary, “kid, this ain’t your night.”

You end up with Joe Biden.
 

One writer called Biden’s success the product of the “politics of exhaustion,” seeing a Democratic electorate not anxious for change, but one that’s just tired, and tired of being tired. The unrelenting apocalyptic news cycles of the past few years depressed them and finally burned them out, and all they want is to tune out and put someone acceptable enough in charge. When Nancy Pelosi declared the morning of Super Tuesday “Civilization as we know it is at stake in the 2020 election” they had had it.

Exhausted, you end up with Joe Biden, running on three things: 1) he’s not Trump; 2) maybe he’ll die in office and his VP will take over early in his term and 3) Joe’s cognitive decline appears slightly less than Trump’s in the race for Mr. Alzheimer 2020 but we’re not sure. Not exactly “Hope and Change.”

Biden candidacy also means sweeping three years of Democratic messaging under the bed. The list of subjects Joe won’t be able to talk about is a long one. Russiagate imploded on its own. Impeachment centered Hunter Biden and ain’t nobody on the Democratic side gonna bring that up.

President Bone Spurs? Biden received five student draft deferments during the Vietnam War, same as Trump. In 1968 when his student status was wrapping up, Biden was medically reclassified as “not available” due to asthma. Yet in his autobiography he described an active youth as a lifeguard and high school football player. He also lied about being on the University of Delaware football team.

Trump’s naughty finances? After leaving the Obama White House Joe and his wife made more than $15 million, mostly via a sweetheart book deal. Biden and his wife made nearly twice as much in 2017 as they did in the previous 19 years combined. The University of Pennsylvania gave Joe $775,000 to teach, and then was nice enough to grant him indefinite leave of absence from actually teaching. Biden charged the Secret Service $2,200 a month rent for a cottage on his property so they could protect him. Since leaving office Biden made $2.4 million on speaking engagements, including $10,000 for travel expenses to the University of Buffalo. A speech at Southwestern Michigan in October 2018 included $50,000 in travel expenses (for the rubes out there, travel expenses are not taxable income.)

Taxes? After failing to close the loophole with Obama, Joe left office to create his own S Corporation, so he receives money for things like book advances and speaking fees not directly, which would cause him to pay Social Security and Medicare taxes as with salaries, but laundered as divestitures from a corporation he owns. As corporate money, nasty personal taxes are fully avoided, and the corporation can claim nearly unlimited “business expenses” to be deducted against those profits. Joe’s S Corp also donated his own money back to his PAC. Legal laundering.

Trump’s sexism and racism? Young people, Google “Anita Hill” now. You’ll be hearing a lot about her come the fall.

Biden represents to many Democrat voters semi-living proof they will never see healthcare reform in their lifetime (Biden’s comeback drove a $48 billion gain for health insurance stock; they know.) Absent a timely cardiac event, they will not see a woman president for who knows how many years. Income inequality will remain the salient descriptor of our society. To win, Biden will have to break the record for oldest man to be sworn in as president (Trump holds the title now.)

Biden’s worst enemy heading into November will be low voter turnout. His opponent for Democratic votes will be Mr. Just Stay Home. That’s why those polls which show broad dissatisfaction with Trump are useless. The Trade Joe Moms of Northern Virginia are never going to vote for Donald Trump. But they just might vote for no one. There are ominous signs; polls for several states Biden won on Super Tuesday, including Massachusetts, Texas and several southern states that helped catapult the former vice president into front-runner status found young voters did not show up at the rate they did in 2016. Same problem for disrespected Bernie supporters who just might sit November out.

The black voters who saved Biden in South Carolina are notoriously fickle when it comes to turn out. Older Americans, who favor Trump, historically turn out at 30 to 40 percent higher rates than the youngest voters. The exaggeration of white privilege that became a cornerstone of the Democratic party — whites are racist, illiterate opioid-soaked gun nuts — is also one of the ways Democrats risk losing the 2020 presidential race, as it leads inexorably to the devaluation of voters needed to clinch the Electoral College.
 

Biden’s presumptive status as nominee triggered the MSM hive mind to drop any talk of the issues which have dominated their agenda for three years in favor of droning about electability. It makes little sense. Why else vote for someone if not for what he represents and will do? You want electability, run a puppy. Biden represents the end state of a political thinking that literally anyone must be better than Trump. The backup plan seems to be rooting for the coronavirus to  trigger a massive recession.

That’s betting the whole house on one thin straw. It’s what happens when you settle for Joe Biden.
 

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Dems, It’s Over. All the Smoking Guns Have Been Firing Blanks.

February 8, 2020 // 13 Comments »

We are watching the pathetic ending to one of the most pathetic periods in American politics. All the smoking guns have been firing blanks.

Following one of the most childish tantrums of denial ever recorded, you Democrats set about destroying the Trump presidency in its crib; a WaPo headline from January 20, 2017 – Inauguration Day itself – exclaimed “The Campaign to Impeach President Trump has Begun.” The opening gambit was going to be Emoluments, including rent paid by the Industrial & Commercial Bank of China for its space in Trump Tower in New York.

After three years, it looks like that attempt finally reached its end game, failure, one gray afternoon. Last Friday the Senate brought impeachment proceedings to their effective conclusion, declaring the witnesses already called before the House were to be the last. The formal vote to acquit Trump is scheduled as an anti-climax for Wednesday.

It has been ugly and mean. Using the entire apparatus of the American intelligence community, operating fully outside the law, you declared the President of the United States a Russian spy. You forced gentlemen to explain to their elderly mothers what a pee tape was. We had to hear over dinner about Trump’s penis, his sexual mores, and look deeper into Stormy Daniel’s cleavage than our own political souls. You made expedient heroes out of small, dishonest men like Michael Avenatti, John Brennan, and James Comey for perceived political gain. Shame on you, Democrats.

When Russiagate collapsed you plunged deeper, with a setup “crime” driven by a faux whistleblower, supported by State Department gossips and not much more. Look at the series of plays you tried even within this Hail Mary of a Hail Mary. Back in August your manufactured worry was Trump, by messing with Ukrainian aid, was a threat to national security that would send the Red Army rolling west. Then there was the continued attempt to link up created memes, Trump’s help from the Russians in 2016 and Trump’s help from the Ukrainians in 2020 were part of some whole to damage democracy. At the end it was to be about how not allowing additional witnesses chosen by leaks to the NYT would distort the 2020 election. One reporter called acquittal “the worst day for America since the Civil War.” We had to listen to another round of democracy dying, existential threats, end of the Republic, as repetitive as summer Top 40.

At your decision the House chose not to wait out a special prosecutor, or even subpoena witnesses back in the fall. Your bleats today about no witnesses ignored how you called 17 witnesses to the House, not a single one of which had first-hand knowledge of the events unless we were willing to believe some State Department Obama fan-boy magically overheard both sides of a cell phone conversation. If you had had a real case a special prosecutor could have sorted through Parnas and Hunter and Bolton, with subpoenas if necessary, and warrants could have shown us exactly what was said in those calls. But that would have come up weaker than Mueller and you knew it.

You don’t think voters see they were played — again? As with Brett Kavanaugh, when things seemed darkest, you produced a witness that appeared to turn everything around. Back then you unveiled Christine Blasey Ford as the deus ex machina, a woman scorned decades ago by a high school kid, now-Supreme Court judge, you called a drunk. Same with John Bolton and his “manuscript” (shall we call it a dossier?) and instead of dealing with it months ago in a calm fashion, the New York Times drops the leak right into the middle of the impeachment punch bowl so it could create its own sense of urgency saying we can’t wait for thoughtful deliberation or even a court ruling, we must do something right away.

So really, in the end your game-changer was supposed to be lifelong conservative John Bolton ratting out a Republican administration? That was how you were going to get Trump? Only a week earlier it was going to be Ukrainian grifter Lev Parnas. Before him was it “fixer” Michael Cohen, or Paul “Fredo” Manafort, who was going to flip? Was it taxes or the 25th Amendment which was once upon a time going to be the final blow?

Do you think voters won’t remember it was Adam Schiff who failed in Russiagate, issuing his infamous Schiff Memo defending as legal the FISA court surveillance of Carter Page now shown to be unconstitutional? The same Schiff who worked with the “whistleblower” to shape the impeachment narrative and then buried the whistleblower from scrutiny? History will remember Schiff poorly, and judge those who put their party’s future in his dirty hands, Nancy, equally poorly.

As it will Elizabeth Warren, who submitted a “question” at the impeachment proceedings which asked if the proceedings themselves “contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?” Nancy Pelosi picked up the theme saying the president will not be exonerated after the Senate acquits because “You cannot be acquitted if you don’t have a trial. And you don’t have a trial if you don’t have witnesses and documentation,” echoing the insanity of saying a victory in the Electoral College isn’t really being elected president. Do Democrats think the Super Bowl victory went to the team with the most yards rushing, or the one with the most points scored?

Impeachment failed in the Senate, ultimately, because it was phony. Senators are politicians, with their noses always in the wind. They sniffed not a modicum of support for this impeachment, and saw nothing akin to the evidence that would encourage them to return to their constituents and explain their contrary votes as they did confronted, overwhelmingly, with Nixon’s wrongdoings.

It’s really over now. Our democracy, which you regularly declare so in peril, will be forced to hold an election of all things to determine its next president.

Democrats, the shock of Trump’s 2016 victory was such that voters were ready to follow you anywhere to defeat him in 2020. You led them off a cliff. As your supporters watched you create false excuses for losing, they watched Republicans confirm judge after judge. As they listened in their sleep to you bark about diversity, they woke up to see mostly a handful of old, white men to lead the party into the election.

You lied to them repeatedly about Russia and Ukraine. You lied to them over and over about what a danger Trump is, bringing people who once believed in you to believe their own nuclear destruction was imminent over Iran, Iraq, Syria, North Korea, and Venezuela. You continue to try to convince people a strong economy is an illusion and cheer on a recession. You shoved forward as surrogates the anti-semites who organized the Pussy Hat march, the media-abused Parkland Kids, Greta the Amazing Climate Change Girl, flashes-in-the-pan like Beto! Kamala! Cory! AOC! Mayor Pete! Stacey Abrams!

You continue to paint an inaccurate picture of a society with gun nuts, Nazis, and white supremacists on the march. You convinced a generation of young voters they are fundamentally unhappy, awash in racism, homophobia, and misogyny, and when they just can’t see it the way you do, you corrupted movies and TV with dorm room level political piety to insist that is how it is out there. Now, instead of respecting one another at work and school, they tip-toe around as wanna-be defendants looking for targets to sue or complain to HR about. Describe yourself in one word? Offended.

The hollow shout “It is all unfair!” after things don’t go your way echos from the third grade playground to 2016 to HR to impeachment.

Would you trust the nation to the people the Democratic party has become? Because that is the question you have thrust into the minds of voters. As you have said many times, this was always more about America than it was about Trump.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Hey, What Ever Happened To…

October 21, 2019 // 21 Comments »

-How’s the water in Flint? That used to matter, too.

-The Yazidi’s? Obama started a whole re-war win Iraq over their supposed genocide.

-How come Assad stopped “gassing his own people” right around the time American politicians stopped caring about excuses to make war in Syria?

* Wait, no, seriously, what happened to the Kids In Cages? All the articles I can find go back to the summer, and in August we were debated whether or not these were actual concentration camps inside the United States. There were some very mediagenic visits to the border by Democrats, full of drama about people drinking from toilets. Congress voted a bunch of money, and some policy changes took place. So, did Trump… resolve the problem? If so, we should probably talk about that. Are there still kids in cages? Then we should be talking about that. Instead, nothing.

People who will Google “Kurds” and link to some random article, alert! This is basically sarcasm, not a plea to search the web. I am trying to show how people are manipulated into weekly outrages by the media, only to forget when some new outrage is the rage. The hope is to wake someone up before they overreact on cue to the next thing. Thanks!

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Impeach the MF?

October 8, 2019 // 9 Comments »

Disregard all the dramatic accusations in and around the whistleblower’s complaint; they’re just guff.

The whole thing hinges on Trump’s own words in the transcript of his call with the Ukrainian president — is he demanding foreign interference in the 2020 election or is he asking an ally to run down unethical actions by a man who might become president (here’s a 2018 letter from the Dems asking Ukraine to help them investigate Trump to compare it to)? Or is it mostly just Trump running his mouth off in a rambling, often disconnected stream-of-consciousness phone call that means very little?

Unlike the endlessly evolving Russiagate saga, we pretty much have all of the information in front of us in the MemCon from the July 25 call. What is referred to commonly as the “transcript” is a U.S. government memorandum of conversation. Over the course of my 24 years at the State Department I saw and wrote many of them as the official record of conversations. At the White House level, voice recognition software is used to help transcribe what is being said, even as one or more trained note takers are at work. Afterwards the people who listened to the call have to sign off on the accuracy and completeness of the document. It is the final word on what was said in that call.

If you read Trump’s words as impeachable you are asking to impeach on something that was talked about but never happened. Ukraine never handed over dirt on Biden. Trump never even asked Attorney General Barr to contact Ukraine. Rudy Giuliani may or may not have had meetings with someone but no one is claiming anything of substance happened. There is no evidence military aid was withheld in return for anything. If nothing happened then nothing happened. You need a body on the ground for a smoking gun to matter.

Meanwhile, the Department of Justice already adjudicated the whistleblower complaint before the thing was leaked to the Washington Post. The original complaint was passed from the Intelligence Community Inspector General to DOJ, who determined there was no crime and closed the case. Officials found the transcript did not show Trump violated campaign finance laws by soliciting a thing of value, such as the investigation, from a foreign national. Even as Democrats bleat DOJ is corrupt, at some point during any impeachment they will need to make clear what evidence they found to find crime where DOJ did not. No one is above the law, sure, but which law exactly are we talking about please?

Trump is apparently not any better at cover-ups than he is at extortion. He got no dirt on Biden even as the Ukraine pocketed its aid money (Ukraine in fact knew nothing about the aid being frozen while Trump supposedly was shaking them down), and his so-called cover-up concluded with him releasing in unprecedented fashion both the complaint and the transcript. For a cover up to even begin you have to have something to cover, and a phone call that led nowhere doesn’t need to be covered up. In fact, it was not. It’s on the internet now.

But the complaint says the transcript was moved from one secure computer server inside the White House to an even more secure server. That’s a cover-up! Not discussed is Congress had no more access to the first server than the second. Exactly who was blocked from seeing the transcript when it was on the more secure system who would have had access to it otherwise? It seems the main person who suddenly couldn’t grab the transcript was the whistleblower. To make this all work, Democrats have to argue for less cybersecurity, or impeach for over-classification. And of course the Obama administration also stored records of select presidential phone calls on the exact same server.

The True Believers think witnesses will help as a million Watergate comparisons are launched. Rudy “The Joker” Giuliani will break out of his designated role of throwing smoke (he played it during Russiagate as well, always having a lot to say though little of it made any sense) and talk sense. Volker from State will tell! Pompeo will squeal to save himself! Manafort and Cohen will peer out of their jail cells and flip! That’s all as likely to happen as Robert Mueller testifying on TV again.

Bottom line: Trump asked the Ukrainian president to take calls from Bill Barr and Rudy Giuliani to talk about corruption, a bilateral issue since the Obama administration with or without Hunter Biden. There was no quid pro quo. Maybe a good scolding is deserved, but sloppy statesmanship is not high crimes and misdemeanors.

Something else is wrong. The whistleblower is a member of the intel community (NYT says CIA), but the text does not read the way government people write. It sounds instead like an Op-Ed, or a mediocre journalist “connecting the dots,” a Maddow exclusive combining anonymous sources with dramatic conclusions. Sure, maybe the whistleblower had help writing it, that’s not the point. The point is the complaint was written for the media. It was written to be leaked. It wasn’t even about an intelligence matter. Maybe that’s why DOJ quickly rejected its accusations, and why at the same time both the NYT and HuffPo praised the writing, commenting on how much clearer the complaint was compared to Mueller’s legalese.

And that’s a problem. A whistleblower complaint is meant to point out violations of law or regulation in the language of prosecutors. It is legalese. A complaint requires data and references; having written such a thing myself, the evidence I needed to explain waste in Iraq reconstruction ended up over 230 published pages. Daniel Ellsberg’s Pentagon Papers originally ran into multiple volumes to prove the government lied about Vietnam. Ed Snowden needed terabytes of data to demonstrate NSA illegality.

If the whistleblower really is an analyst he is not a very good one, mixing second hand sources with public ones to mimic a weary Dem narrative of foreign election help much like the Steele Dossier. The complainant witnessed nothing himself and produced no primary documents. The sourcing is as vague as “more than half a dozen officials have informed me of various facts.” No law is cited because none applied; the whistleblower simply recorded his interpretation into bullet points, like the punchlines from Russiagate no one laughed at.

The whistleblower’s expected testimony will be played as high drama but actually is meaningless; he has an opinion but his accusations were made without hearing the call or reading the transcript. At least he’s in good company: Nancy Pelosi declared her support for impeachment before she had heard the call or seen the transcript.

Something suspicious also underlies the complaint. Had the whistleblower filed a week earlier there would be no impeachment inquiry as we have it now. The intelligence community whistleblower rules under which all this is taking place were significantly amended only days before the Ukraine complaint to allow the second hand information the complaint was entirely based on. As of the date of the call itself such a complaint would have been rejected; see the old intake form which required first-hand information. Then, just days before the complaint was filed, the form and rules were changed to allow second hand information (here’s the new form) and thus give the writer whistleblower protections, including anonymity. The rules changed concurrent with this case to actually allow it to reach national prominence.

Here’s where things stand. After three years of trying to keep Trump from assuming office, then cycling through ways to throw him out this plops onto the field. If an impeachment vote comes, it will literally be with Trump having only a few months left in his term. This is no longer about overturning 2016, it is about circumventing 2020, fear by the Democrats of what will happen if they let the deplorables vote again. Is the Dem slate that weak? They are acting as if they have nothing to lose by trying impeachment.

Pity Nancy Pelosi, who tried to hold back her colleagues. Now instead of answering the needs of constituents, Democrats will instead exploit their majority in the House to hold hearings likely leading to a show vote that would have embarrassed Stalin. History will remember Pelosi as the mom who, after putting up with the kids’ tantrums for hours demanding ice cream, finally gives in only a few blocks from home. She’ll regret spoiling dinner later that night over a hefty glass of white wine but what could she do, they just wouldn’t shut up and her nerves were shot. Have you had to listen to AOC complain from the back seat for two hours in traffic?

The last thing Joe Biden needed was more baggage; it’ll take awhile for him to realize it but he’s done, doomed by kompromat never actually found. Impeachment will so dominate the media no one will listen to whatever the other primary Dems have to say; Kamala Harris in the midst of all this was so desperate for attention she was still trying to drum up support for impeaching Brett Kavanaugh. Warren will emerge as the nominee. Goodbye then to all the minor Dems, see you in 2024, perhaps running against Mike Pence after Trump’s second term.

This is not what the country wants to talk about. Polling shows only 37 percent favor impeachment versus 45 percent opposed. That 37 percent is down from 41 percent three weeks ago and down from 44 percent in May, after the Mueller report. Meanwhile, since the Ukraine story broke, Trump has raised over $13 million in new donations.
The case is weak, though with their House majority the Dems may indeed impeach the president just months ahead of an election, based on a partisan interpretation of a few words to a minor world leader. Impeachment didn’t even come up in the last Democratic debate, yet heading into the early caucuses the faces of the party will be Adam Schiff and the agita-driven Hillary. Democrats are taking that road instead of talking about jobs, health care, immigration or any of the other issues voters do care about.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Ukraine-O-Rama!

October 3, 2019 // 14 Comments »

 
Was it only a week ago we were going to investigate and impeach over the hotel in Scotland, corruption and emoluments? What was the one before that, Greenland or loans from Deutsche Bank? What about Stormy? Avenatti? Michael Cohen, the Consigliere, his accusations of tax fraud? Who was gonna flip, Flynn, Manafort, which one was Fredo in all this? Robert Mueller? I can’t remember, was there a Trump blackface scandal along the way? Or was he the one who made racist Asian jokes. Whatevers, now, on to the Ukraine.
 
There are few hard facts. There are leaks, and the MSM to amplify them into the fetid stew as we have it today: a whistleblower (more on that later) in the intelligence community claims Trump made unspecified “promises” to the president of the Ukraine for help in investigating corrupt acts by the Biden family. This took place during a late July “populated” call between Trump and the Ukrainian president (“populated” calls are between world leaders with the understanding staffers will be listening in, as opposed to private 1:1 calls between leaders.) No one knows if the whistleblower was listening to the call, read a transcript or summary later, or heard about the call from another party. CNN says he did not have direct knowledge of what was said.

Nonetheless the story blossomed like chlamydia at band camp. At last report, Trump withheld military aid from the Ukraine in a quid pro quo for the Ukrainians finding dirt on Biden usable in the 2020 election. That was then refined into a more tweetable “Trump is again inviting foreign influence into our democratic process.” From there it took the New York Times only 48 hours to question whether the “president can get away with weaponizing the federal government to punish political opponents.” Carl Bernstein ritually invoked Watergate. Special prosecutors were called for, impeachment demanded, and Twitter voted for the death penalty.

Democrats also decided all sorts of procedural and legal stuff the public cannot understand and will not pay attention to has been violated because the whistleblower complaint has not been handed over to the clowns to parade around the midway, and this is again the end of the rule of law, a Constitutional crisis, the end of oversight, and so on. It’s all a kind of a set piece now. Like a dog hearing he’s going for a car ride, with that first leak the Dems and the MSM couldn’t wait to hang their heads out the window for another ride around the block.
 
In the sideshow, Rudy “The Joker” Giuliani left a snail trail of slime across the teevee shows, throwing up smoke in the same role Trump used him for throughout Russiagate. It’s evidence of nothing, for far from the Colonel Jessup “Few Good Men” moment the media is portraying Giuliani’s screaming as, none of it was under oath and all of it has the legal lasting power of a soap bubble.

To sum up: No one in Congress or the media has seen the whistleblower’s allegation or the transcript from Trump’s call that underlies it. Everything written and said has been based on a leak. We don’t know if the whistleblower directly heard Trump or learned about the call second or third hand. The little that seems to be known is Trump wanted Ukraine’s new president to continue a corruption investigation into Joe Biden. We have no specifics Trump promised anything after that request, or that if he did, that it was anything illegal. The Constitution gives near total unanimity to the president in foreign policy. So, a Hatch Act violation maybe?

Meh. Facts are no longer needed; “Many elements are murky, but something clearly stinks” said the NYT, suggesting that’s good enough as a standard. The Dems and media are demanding impeachment based on that. Whether we like it or not, the Constitution does not include careless, abusive, cheaply corrupt, or even otherwise dishonorable conduct as grounds for impeachment.
 
So what’s really going on?

It takes a lot of guts at this point to claim impeachment is coming. Post-Russiagate, the American people are tired of constant accusations which turn out to be largely empty. The false sense of hope Dems are celebrating today is matched by a strong sense of “We’ve Got Him Now!” Episode 123. The big difference this time is here’s no holy grail pee tape to quest after for three years. A call between Trump and the Ukrainian president did take place and a transcript exists. That changes everything, right?

That transcript could leak this afternoon, or a bureaucratic fight could keep it buried for a long time. So what did Trump say? The Ukrainian government version, which is as close as we have to an actual fact at present, has been online for two months and says “Donald Trump is convinced that the new Ukrainian government will be able to quickly improve image of Ukraine, complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA. [sic]”

OK, so maybe there is more than that in the real text. But for whatever was said to be a smoking gun, for it to fulfill the headlines stating Trump pressured the leader, or extorted him, or bribed him, or manipulated U.S. foreign policy to bring a foreign government into the 2020 election, the actual words matter. If this whole thing turns out to be an attempt to shoehorn another broad or flippant statement by the president about investigating corruption which may involve the Biden family into a quid pro quo accusation, it will fail more than spectacularly. The Dems and MSM better have something dead solid perfect this time or the game is really over well ahead of 2020, because no one will be listening to them any further.
 
And yet while the actual words matter, it should not be lost that none of what Trump was supposed to have really done, withholding military aid, or getting dirt on Biden, happened. We’re talking about talking about maybe burning the Reichstag but not in so many words. The outcome that nothing in the end happened sharply echoes Russiagate’s lack of collusion and the sad fallback to failing to obstruct an investigation which cleared Trump.

The military aid to the Ukraine was delayed but then paid out (and amusingly, some claimed at the time it was withheld as a favor to Putin whereas now that accusation has been deep-sixed to say it was withheld to extort the Ukrainians. And the idea military aid to the Ukranie, as delivered, is actually something bad Trump did against Putin is forgotten.) Dems and the media love the idea the aid might be wiggle-waggled into being a “bribe,” in that bribery is one of the specific crimes mentioned in the Constitution as impeachable. Trump though is apparently bad at bribing; even though he made the decision to temporarily withhold the aid, the Ukrainians were never even told about it until weeks after the “extortion” phone call, meaning nobody’s arm got twisted when it should have for impeachment fodder purposes.

So no bribe was given, or to the Ukrainian’s knowledge, withheld. At the same time no one has claimed the Ukrainians investigated Biden or will be doing so at Trump’s demand. No new dirt has surfaced on Biden or his family dealings. As with all the things Trump was supposed to do to get his Moscow hotel and then there was no Moscow hotel, the Dems claim they see a smoking gun but there is no body on the ground under the muzzle. So will this devolve into another complicated thought crime, another “conspiracy” to commit without the committal? “No explicit quid pro quo is necessary to betray your country,” helpfully tweeted Adam Schiff. But there’s gotta be more, right? Because the collapse of Russiagate shifted any benefit of the doubt towards Trump; the gray areas fall to him. Three years ago “almost” might have worked but not anymore, we are far too burned out and cynical for that.
 
Meanwhile, we are not discussing what really did go on between Biden and the Ukrainians. The Dems have been too quick to announce Biden did nothing wrong, creating a loop of hypocrisy saying no investigation is needed because no investigation has uncovered evidence of wrongdoing worth investigating. So don’t even imagine a President Biden held hostage to Ukrainian kompromat. We’ve heard something like that concerning a pee tape, haven’t we? “Oh, you oppose investigations into corruption by the guy potentially the next president? You want him in office knowing he could be blackmailed by Slavs?”

What about Biden anyway? During the last year of the Obama administration Joe Biden traveled to Ukraine to convince the government in Kiev to fire its prosecutor general, Viktor Shokin, claiming he was corrupt. Biden threatened to withhold $1 billion in loans, and his threat worked: Shokin was removed. The funny part is just as he was fired prosecutor Shokin was in the middle of investigating a natural gas company, one of which’s board members was Hunter Biden. Hunter was collected $50,000 a month for that non-job. Golly, would Joe Biden have used the power of the United States to help his son keep that sweetheart job? Hunter had no previous experience in the Ukraine, and snagged the job there just after being thrown out of the Navy for using cocaine, so really, nothing to see. Biden still had the gaul to accuse Trump of using the power of the United States to extract “a political favor” from Ukraine.
 
Now don’t be distracted by the way the words “credible” and “urgent” are being slung around by the media.

“Urgent concern” is merely another bit of legal nomenclature turned into a breathless headline defined as: “A serious or flagrant problem, abuse, violation of the law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.”

But as for “urgency” itself, the phone call likely at the heart of all this was made July 25 (here’s a public Ukrainian government summary which refers to a “complete investigation of corruption cases”) The whistleblower complaint wasn’t filed until August 12. It was two weeks after that it reached the acting Director of National Intelligence Joseph Maguire, who did nothing with it we know of. Congress requested a copy September 10, which was refused (that new obstruction thingie) and the whole thing leaked September 18, of course in the Washington Post.

Like credibility, urgency in this specific usage refers to whether or not the complaint falls within the boundaries of the IC whisleblwoer laws, something in contention as the subject matter appears to have very little to do with the work of the IC or its employees and much more to do with the conduct of the president. As such, the matter may not be “urgent” as defined by law and the president correct to withhold information according.

We are also not going to discuss foreign spying around the edges of the 2016 Trump campaign, the role “retired” MI6 British spy Christopher Steele played in Russiagate, or the as yet undiscovered contributions by the British version of NSA made surveilling Americans outside the legal reach of the United States. An Inspector General report from the Justice Department is due out very soon which may disclose the role those foreigners played.

We are also not going to talk about whatever the State Department was doing to assist presidential lawyer Rudy Giuliani’s contacts with Ukraine’s government. Giuliani’s contact with a close Ukrainian presidential advisor this summer was encouraged and facilitated by the U.S. State Department. Giuliani even didn’t initiate it. A senior U.S. diplomat did.

Among other things we won’t be talking about his how the Trump administration’s withholding of the whistleblower complaint — that death to the rule of law thing — is consistent with the stance taken by both the Clinton and Obama administrations, and is far from new. In 1998, President Bill Clinton wrote, in a signing statement accompanying the original whistleblower protection act, that it “does not constrain my constitutional authority to review and, if appropriate, control certain classified information to Congress.” Obama restated this caveat in 2010. Trump is in fact the third president to assert that simply filing a whistleblower complaint does not grant the filer the right to force classified, privileged information into the public sphere. As in all other instances, that right rests with the president himself — Clinton, Obama, Trump, as well as the next one.
 
 

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Will Congress Impeach Over the Ukraine?

October 2, 2019 // 12 Comments »

Like a dog hearing he’s going for a car ride, with that first leak the Dems couldn’t wait to hang their heads out the window for another ride around the block.
 

There are few hard facts: a leak claims a whistleblower in the intelligence community believes during a July 25 phone call Trump made unspecified “promises” to the Ukrainian president in return for his investigating Biden family corruption. The whistleblower did not have direct knowledge of what was said, and may have read a transcript or summary. Trump knew the call was monitored by multiple people and said whatever he said anyway.

Despite the lack of real information, the story blossomed like chlamydia at band camp to soon say Trump illegally withheld $391 million in military aid from the Ukraine in a direct quid pro quo for the Ukrainians finding dirt on Biden. Correlation was turned into causation and a narrative was created in mid-air. That was then crowd-refined into a tweetable “Trump is again inviting foreigners into our democratic process.” From there it took the New York Times only 48 hours to question whether the “president can get away with weaponizing the federal government to punish political opponents.” Impeachment was called for, and one nominal Trump challenger literally demanded on MSNBC execution be considered.

Democrats also decided all sorts of procedural and legal stuff the public will not pay attention to has been trod upon because the whistleblower complaint has not been handed over to them. In sum, “many elements are murky, but something clearly stinks” said the NYT, suggesting that’s good enough as a standard for demanding regime change in the middle of an election.

The big difference this time around is there’s no holy grail pee tape to quest after for three years. A transcript of the call between Trump and the Ukrainian president exists. What did Trump say? The Ukrainian government version, which is as close as we have to an actual fact at present, has been quietly online for two months now and reads “Donald Trump is convinced that the new Ukrainian government will be able to quickly improve image of Ukraine, complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA. [sic]”

For whatever Trump said to fulfill the headlines stating he pressured/extorted/bribed the Ukrainian leader, or manipulated U.S. foreign policy to (again?!?) bring a foreign government into the 2020 election, the actual words matter a lot. If this whole thing turns out to be shoehorning some broad or flippant statement by the president about investigating corruption which may involve the Biden family into a quid pro quo accusation, it will fail spectacularly with voters. If we all have to become whistleblower law experts the same way we all were obstruction experts just a few weeks ago for this to matter, it fails. The Dems might as well bring Congressman Wile E. Coyote onto the floor with his Acme Impeachment Kit.
 

And yet while the actual words matter, it should not be lost that none of what Trump was supposed to have really done — using military aid to get dirt on Biden — happened. We’re talking about talking about maybe burning the Reichstag, just not in so many words.

No one claims the Ukrainians investigated Biden at Trump’s demand (and Dems insist there was no wrongdoing anyway so an investigation would be for naught anyway.) It is thus a big problem in this narrative that the long-promised military aid to the Ukraine was only delayed and then paid out, as if the bribe was given for nothing in return, which hardly makes it a bribe. Trump is apparently bad at bribing; even though he made the decision to temporarily withhold the aid for some reason, the Ukrainians were never even told about it until weeks after the “extortion” phone call, meaning nobody’s arm got knowingly twisted. So no bribe was given, or to the Ukrainians’ knowledge, no money withheld.

As with all the souls Trump supposedly sold to get his Moscow hotel but then there was no Moscow hotel, the Dems claim they see a smoking gun but there is no body on the ground under the muzzle. So will this devolve into another complicated thought crime, another “conspiracy” to commit without the committal? “No explicit quid pro quo is necessary to betray your country,” helpfully tweeted Adam Schiff, chair of the House Intelligence Committee. Three years ago “almost” might have worked but we are far too cynical now following the collapse of Russiagate. The gray areas will fall to Trump in the court of public opinion.
 

Sigh. This will drag on for a while anyway. So the next step is for someone to see the actual whistleblower complaint, or, better, the transcript of the call itself. Because absolutely everything swirling around Washington otherwise today is just based on a leak.

Prying things loose if Trump wants to keep them from Congress will not be easy. The law sets conditions for disclosure of the whistleblower compliant itself, based on the specific legal definitions of credible and urgent; the media is mangling this part of the story by using vernacular definitions. How to apply those criteria can be argued over to Kiev and back. For example, the complaint itself seems to have nothing to do with intelligence operations except that it was allegedly filed by an intelligence staffer. That could make it not an “urgent” matter in the definition of the law and thus not available to Congress.

Trump’s withholding of the whistleblower complaint is also consistent with the stance taken by both the Clinton and Obama administrations. Bill Clinton, in a signing statement accompanying the original 1998 Intelligence Community Whistleblower Protection Act, wrote this “does not constrain my constitutional authority to review and, if appropriate, control certain classified information to Congress.”

Obama also reserved the right to withhold information from Congress “in [undefined] exceptional circumstances” when the original Act was updated as Congress created the Office of the Intelligence Community Inspector General in 2010. Trump is thus the third president to assert a whistleblower complaint does not grant the filer the right to force classified, privileged information into the public sphere. That right rests with the president — Clinton, Obama, Trump, as well as the next one. Citing long precedent, the courts would likely agree if asked.

While there is room to argue over the release of the complaint to Congress, there are nothing to compel the release of the presidential call transcript itself. What presidents say to other world leaders with the expectation of privacy is at the core of conducting foreign policy. No world leader is willing to interact frankly with the American president today wondering if the conversation will be on CNN tomorrow. That was one of the arguments used to assess the damage whistleblower Chelsea Manning did revealing State Department documents containing such conversations. So, never mind the Ukraine, no president would readily turn over a transcript without a fight, a fight he’ll likely win given the long standing unitary role of the executive in foreign policy.

Law and precedent are thus on Trump’s side if he chooses to withhold the complaint and transcript from Congress. If no one can see those documents, there is no means to move any investigation decisively forward, though theatrical hearings are always possible. A full leak of those specific, highly classified materials would be unprecedented. It would then be a true Constitutional crisis if illegally obtained, leaked docs were used at the heart of an impeachment process.
 

There’s more. As a whistleblower myself I know well the personal cost of telling the truth. It requires enormous courage to place yourself at odds with the full power of the government. You risk your job, your life as you knew it, and your freedom. Our democracy requires such people to come forward despite all that. So it is with some mixed feeling I record my skepticism here. At the core whistleblowers are different solely in motive; whistleblowers act because conscience tells them they must. They understand their allegiance is to The People, not a party (leakers) or self-interest (traitors.)

If the whistleblower here is someone who wrapped themselves in hard-fought legal protections to score points snitching over a difference in partisan politics, it will contribute to ending what little faith the public has in the vital process of revealing the truth at whatever cost, and will cause someone with legitimate concerns now trying to decide what to do to sit down. I hope with all of my soul, and with respect for those like Ellsberg, Manning, and Snowden, that this whistleblower proves worthy to stand next to them. And God help his soul and our country if not. 

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Thinking Ukraine: Is the dam about to break?

September 24, 2019 // 40 Comments »

 
Is the dam about to break? Nope.
 
Look at what is actually fact: a whistleblower based on a transcript or summary says Trump made some unspecified “promise” in return for an investigation into Biden corruption. No details, no corroboration. Meanwhile, no one has claimed any investigation actually took place. The aid money was paid out weeks ago. Nothing actually happened in real terms. There was no Trump hotel built in Moscow.

Everything else at this point is supposition, including the idea that the aid money is in any way connected to this. The media simply jumped on the claim “promises” were made and attached that to what may be a separate event, the temporary delay of the aid. Correlation is not causation.

And if you like leaks, The Wall Street Journal reported Trump repeatedly asked Zelensky in a July phone call to open an investigation into Hunter Biden but cited the same source claiming Trump did not offer a quid pro quo in the conversation.

I’ve got a whole column in editing now with details but trust me for now that it will be very hard for Congress to force Trump to release the whistleblower complaint or the call transcript. No documents, no impeachment.

Alternately, if the transcript/complaint actually exonerates Trump, he can dangle the Dems for a little longer and then release it, pretty much ending this.

Nothing Giuliani or Conway or even Trump says in TV really means anything. Under oath or GTFO. They’re clowns. Trump used them very effectively during Russiagate to throw up smokey chem trails for the media to chase, and that worked well for him.

To do anything other than impeachment theatre (remember poor Robert Mueller?) Dems would have to convince the American people (the real jury as the Senate is unlikely to vote to convict anything) whatever Trump said is so far outside the boundaries of foreign policy he needs to be impeached in the literal middle of an ongoing election. Regime change three years into his term.

Repubs will counter with everything naughty about Biden in 2015 Ukraine, quid pro quo with Clinton Foundation, and all the flops of Russiagate, etc. They have a lot to work with and the Dems have a three year track record of… a lot of noise.

Which side does your money go down on, never mind what you “want” to happen. Hope is not a strategy.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Missing Line of Questioning in the Mueller Hearing…

July 24, 2019 // 10 Comments »

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

15 Questions for Robert Mueller

// 14 Comments »

You know that movie with Bruce Willis and the kid who says “I see dead people?” In the end it turns out everyone is already dead. Now imagine there are people who don’t believe that. They insist the story ends some other way. Maybe there’s missing footage! Spoiler Alert: the Mueller Report ends with no collusion. No one is going to prosecute anyone for obstruction. That stuff is all dead. We all saw the same movie.

Yet there seem to remain questions to be answered. And while it is doubtful the stoic Robert Mueller will ever write a tell-all book, or sit next to Seth and Trevor dishing, he may be called in front of Congress. Here’s some of what he should be asked.
 
1) You charged no “collusion,” obstruction, or any other new crime. In simple words tell us why. If the answer is “The evidence did not support it,” please say “That one.”
 

2) Your Report did not refer any of the crimes in the first question to Congress, the SDNY, or anywhere else. Again, tell us why. If the answer is “The evidence did not support it,” please say “That one again.”
 

3) Despite you making no specific referrals to others for action, the Report states “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Why did you include such restating of a known fact instead of either a direct referral or nothing? Many people have read that line to mean you could not indict a sitting president and so you wanted to leave a clue to others, in Congress, to exercise some role. You could have spelled it all out — “this all is beyond my and the AG’s Constitutional roles and must/can only be resolved by Congress” would have worked. Why not?
 

4) Many readers of the Report believe they see clues (one footnote looms as the grassy knoll of your work) the specific reason you did not indict Trump was because of DOJ/OLC guidance against indicting a sitting president. In other words, absent that specific guidance, would you have indicted the president? If so, why didn’t you say so unambiguously and trigger what would be the obvious next steps.
 

5) When did you conclude there was no collusion/conspiracy/coordination between Trump and the Russians such that you would make no charges or indictments? You must have closed at least some of the subplots — Trump Tower meeting, Moscow Hotel project — months ago. Did you give any consideration to announcing key findings as they occurred? You were clearly aware inaccurate reporting continued, damaging to the public trust. You allowed that to happen. Why?
 

6) But before you answer that question, please answer this one. You did make a rare pre-Report public statement saying Buzzfeed’s story claiming Trump ordered Cohen to lie to Congress was false. You restated that in the Report, where you also mentioned (Vol I, p 198) you privately told Jeff Sessions’ lawyer in March 2018 Sessions would not be charged. Since your work confirmed nearly all bombshell reporting on Russiagate was wrong (Cohen was not in Prague, nothing criminal happened in the Seychelles, etc), why was it only that single instance that caused you to speak out publicly? And as with Sessions, did you privately inform any others prior to the release of the Report they would not be charged? If only some but not all were informed, why was that? What standard did you apply to these decisions?
 

7) A cardinal rule for prosecutors is not to publicize negative information that does not lead them to indict someone — “the decision does the talking.” James Comey was strongly criticized for doing this to Hillary Clinton during the campaign. Yet most of Volume II is just that, descriptions of actions by Trump which contain elements of obstruction but which you ultimately did not judge to rise to the level of criminal chargeability. Why did you include all that so prominently? Some say it was because you wanted to draw a “road map” for impeachment. Did you? Why didn’t you say that? You had no reason to speak in riddles.
 

8) There is a lot of lying documented in the Report. But you seemed to only charge people early in this investigation with perjury (traps.) Was that aimed more at pressuring them to “flip” than justice per se? Is one of the reasons several of the people in the Report who lied did not get charged with perjury later in the investigation because by then you knew they had nothing to flip on?
 

9) In regards to the June 2016 Trump Tower meeting, where derogatory information on Clinton was offered (but never given) you declined prosecution, citing in part questions (Vol I, p 186) over whether such information constituted the necessary “thing of value” that would have to exist, inter alia, to make its proffer a campaign finance violation. You don’t answer the question in the Report, but you do believe information could be a “thing of value” (the thing of value must exceed $2,000 for a misdemeanor, $25,000 for a felony.) What about the withholding of information? Could someone saying they would not offer information publicly be a “thing of value” and thus potentially part of a campaign law violation? Of course I’m talking about Stormy Daniels, who received money not to offer information. Would you make the claim silence itself, non-information, is a “thing” of value?
 

10) You spend the entire first half of your report, Volume I, explaining it was some combination of “the Russians” who sought to manipulate our 2016 election via social media and the DNC email hacks. Though there is a lot of redacted material, at no point in the clear text is there information on whether the Russians actually did influence the election. Even trying was a crime, but given the importance of all this (some still claim the president is illegitimate) and for future elections, did you look into the actual effects of Russian meddling? If not, why not?
 

11) Everything the Russians did, in Volume I, they did during the Obama administration. Did you investigate anyone in the Obama administration in regards to Russian meddling, what was done, what was missed, could it have been stopped, and how the response was formed? Given Trump’s actions toward Russia would follow on steps Obama took this seems relevant. Did you look? If not, why not?
 

12) Some of the information you gathered against Michael Flynn was initially picked up inadvertently under existing surveillance of the Russian ambassador. As an American person, Flynn’s name would have been routinely masked in the reporting on those intercepts to protect his privacy. The number of people with access to those intercepts is small and list-controlled, and the number inside the Obama White House with the authority to unmask names, i.e., reveal it was Michael Flynn, not AmPerson1, is even smaller. Yet details were leaked to the press and ended Flynn’s career. Given the leak may have exposed U.S. intelligence methods, and given that it had to have been done at a very high level inside the Obama White House, and given that the leak directly violated Flynn’s Constitutional rights, did you investigate If not, why not?
 

13) The NYT wrote “some of the most sensational claims in the [Steele] dossier appeared to be false, and others were impossible to prove. Mr. Mueller’s report contained over a dozen passing references to the document’s claims but no overall assessment of why so much did not check out.” Given the central role the Steele Dossier played in parts of your work, and certainly in the portion of the investigation which commenced as Crossfire Hurricane in summer 2016, why did you not include any overall assessment of why so much did not check out inside such a key document?
 

14) Prosecutors do not issue certificates of exoneration, and have no obligation to “exonerate” people they consider for charges. The job is to charge or drop a case. That’s what constitutes exoneration in any practical sense. Yet you have as the final line in a report that does not charge anyone “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Can you explain why that line was included, and so prominently?
 

15) Near the end of the Report you wrote “if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state.” You argue elsewhere in the Report because Trump is a sitting president he cannot be indicted, so therefore it would be unjust to accuse him of something he could not go to court and defend himself over. But didn’t you do just that? Why did you leave the taint of guilt without giving Trump the means of defending himself in court? You must have understood such wording would be raw meat to Democrats, and would force Trump to defend himself not in a court with legal protections, but in a often hostile media. Was that your intention?
  

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Amash is Wrong, Pelosi (So Far…) is Right on Articles of Impeachment

May 26, 2019 // 1 Comment »

Even as House Speaker Nancy Pelosi tries to put impeachment talk on the back burner within her own party, Justin Amash became the first Republican Congressman to call for it. This weekend on Twitter, as the Founders intended, Amash wrote “Mueller’s report identifies multiple examples of conduct satisfying all the elements of obstruction of justice, and undoubtedly any person who is not the president of the United States would be indicted based on such evidence.”

Amash goes on to say impeachment simply requires “an official has engaged in careless, abusive, corrupt, or otherwise dishonorable conduct.”

Of course tweets are not Articles of Impeachment to be voted on, Mueller’s Report specifically does not indict Trump for obstruction, the Report does not state the reason for not indicting Trump is because he is president, and the Constitution does not include “careless, abusive, corrupt, or otherwise dishonorable conduct” as grounds for impeachment.

People may not like any of that, but those are the starting and ending points on impeachment and simply repeating an alternate version cannot change things. So this all may be little more than grandstanding by Amash.
But alongside Amash’s tweets are dozens of similar bleats from politicians and blasts from the media demanding Trump be impeached. Cheerleaders gloat impeachment isn’t a judicial process but a “political” one, their main takeaway being less rigorous standards apply (Amash stated there is no obligation to show even probable cause a crime was committed to impeach, you can just accuse willy-nilly) and somehow that’s a good thing. Many express near-joy the constitutional requirement for impeachment, “high crimes and misdemeanors,” isn’t defined in the law so it can be anything a partisan House wants it to be heading into an election. Somehow that’s also a good thing for a democracy they otherwise see under threat.

What the calls for impeachment show in amplitude they lack in detail, the specifics Trump must be impeached for. You know, like when a case goes to court instead of when one is trying to make headlines? The so-called best versions, as with Amash, simply refer back to Mueller’s own didn’t-reach-indictment non-conclusions and leave it there, as if the Report says something clearly it does not even say obliquely. The worst ramble about the end of democracy, damage to the Constitution, corruption, and cite the libretto from Hamilton as their snappy summation. What they all do, from Amash to Trevor Noah, is rely on assumed agreement with their audience Trump is guilty. Of something.

The only specific pseudo-justification comes from a sub-group who kinda admits the Mueller “road map” is a bit fuzzy on actual guilt, but who sees impeachment proceedings as some sort of super-investigative process that would take another shot at finding chargeable crimes.

This strategy becomes clearer when one looks at the real road map: Democrats and the media have been trying to remove Trump from office even before he took office. The Electoral College was going to not vote him in, or the Emoluments Clause or the 25th Amendment would shove him aside. The path forward jelled in early January 2017, even before the inauguration, as strategic leaks from the intelligence community pushed Russiagate to the fore. Trump was a Russian agent, the Manchurian Candidate. The nice folks in the Deep State would investigate, and their Report would segue smoothly into impeachment proceedings just in time for the 2020 election season.

After the Report showed there was no collusion or conspiracy with the Russkies, the Democrats and media pivoted as one, literally overnight, claiming (failed) obstruction of a Report which cleared Trump of treason, that was the real crime all along. The only problem was the Report did not support obstruction as grounds for impeachment either. So in a wink of an eye, the new plan was for the House to subpoena documents, call witnesses, and conduct a re-investigation into whatever it was Mueller failed to uncover.

This belief in the investigative magic of the House ignores the vast powers already brought to bear, including the surveillance which proceeded Mueller’s work and provided the fodder for those early perjury traps against Flynn, Papadopoulos, et al. Mueller used the threat of jail time to pressure people into cooperating, in the end producing little actionable material. The House thinking it will find the smoking gun Mueller missed also ignores the entrapment ops the FBI ran against the Trump campaign, which also produced little beyond excuses for more surveillance.

The Democratic/media actions post-Report — making up their own versions of what Mueller meant to say — beg the question of why not just ask Bob Mueller? The White House is not blocking his testimony, and the House has not subpoenaed him. Still, no testimony is scheduled while “negotiations” take place between Mueller and the Committees. For a nation supposedly in crisis there doesn’t seem to be too much of a rush. The Report has been out for close to two months.

Or maybe Democrats are not in a hurry to call Mueller because they don’t want to hear him answer why he did not indict anyone new. Maybe Dems don’t want to have Mueller say how early he realized the Steele Dossier was garbage but still kept silent? Maybe Dems don’t want Mueller talking about the origins of the Russia investigation? Maybe the Dems really don’t want Mueller to testify at all. Leave him off-stage, where they can put words into his mouth. Those are sharp questions when the simple answer, just ask Mueller, is replaced by a complex set of subpoenas and judicial challenges under the shadow of impeachment proceedings.
And with that it is time to take a deep breath and consider what impeachment is really about.

Impeachment allows Congress to overturn an election. And that is a very, very big deal. The Constitution vests ultimate power in The People. Throwing their choice out via impeachment is in a way the ultimate undemocratic act.

What impeachment also is not is a midterm check of “fitness.” It is not a constitutional pause for a referendum on how the president is doing. It is not a way to resolve differences of opinion, policy or propriety. The Founders were well aware how parliamentary systems could easily expel leaders with votes of no confidence in such situations, and chose something very different for America. They gave great sanctity to having a president serve his full term. And in our entire history no president has been forced from office.

Impeachment is also not a way to bypass other investigative tools to allow a partisan House to poke around inside a president’s decisions, pre-election business deals, and personal life, or to amass info short of actual impeachable evidence as campaign dirt on the public dollar.

This final conception of impeachment, an expedient to get around Trump refusing to comply with various subpoenas, is particularly odious. The claim we are in a constitutional crisis because the White House is contesting document requests, what Nancy Pelosi calls Trump’s “self impeachment,” is nonsense. Contesting subpoenas thought to be too broad or irrelevant is an inherent part of due process and is nothing new or unique to the Trump administration. What would be unique is to open impeachment hearings as a work around to having the courts rule, as they anyways have, on the muscle-tussle between executive and legislative branches.

The closest the United States ever came to forcing a president out of office was with Richard Nixon in 1974, and much is being made in 2019 that one of the charges against him was obstruction of justice. But the two are very different.

Nixon’s obstruction had clear underlying crimes behind it, as Republican operatives broke into the Democratic National Headquarters at the Watergate building, and made a similar break in to Daniel Ellsberg’s psychiatrist’s office. The latter, often left out of “Watergate” history, was to gather blackmail material or discrediting information to use against the Pentagon Papers’ leaker.

Amash is playing you with a straw man argument; anyone who went to law school, read the Mueller Report which explains this or Googled obstruction knows an underlying crime is not required. Underlying crimes are not necessary to charge obstruction per se, but their presence indicates the seriousness and depth of what obstruction sought to hide. In the absence of underlying crimes, i.e., in Trump’s case no collusion with Russia, you’re left to wonder what the president would have sought to obstruct the investigation for. Unlike in Nixon’s case, there was nothing for it to find. That raises the question of evil intent, the “why” which is necessary to charge obstruction. If there was no underlying crime why obstruct? The lack of underlying crime also raises the political stakes. The House really thinks it will be supported in trying to impeach the president over a… process crime?

Nixon’s obstruction took the form of paying cash from a slush fund to the operatives to buy their silence or to have them commit perjury. Nixon sought information from the CIA to use against his enemies. He personally and unambiguously ordered a cover-up. His own White House counsel testified against him. Watergate burglar James McCord stated in writing his testimony, some of which was perjured, was compelled by pressure from the Attorney General. Audio tapes of Nixon actually committing these acts existed. Nixon defied a Supreme Court order to release the tapes, erased some especially discriminated audio “accidentally,” considered destroying the tapes entirely, fired the Special Prosecutor who drove that process, and attempted to seize control of the investigation via a new prosecutor in what has come to be called the Saturday Night Massacre. Now that is what real obstruction, and the evidence to prove it, looks like.

All of the above preceded actual Articles of Impeachment. By the time the case was moving to the Senate for a decision, there was no need for pundits to speculate on road maps, no need for explainer articles, no dots left to connect, and Nixon was pressed to resign by a bipartisan group. It makes the current situation — a Report which does not charge obstruction, with no underlying crime, serving as the basis for the House to re-investigate those same non-events via a scattershot of subpoenas and testimony — seem silly.

Nancy Pelosi is right to put the brakes on impeachment. Not because of some political calculation, but because turning the Constitution’s provision for over-turning an election into a hunt for dirt, or as a way around the check and balances of the courts, chips away at the foundation of democracy.

BONUS

I admire Amash for his principles. So I would very much welcome him laying out reasons for his opinion Trump committed an impeachable offense in obstructing justice, a conclusion Mueller, Barr, and Rosenstein did not reach. All Amash did was send out a couple of tweets. I, too, have read the whole Report, as have many others, and do not see chargeable crimes. So Amash needs to do more than tweet a conclusion because the clarity he sees in the Report text is not shared widely enough to allow him to just say trust me on this.

Amash in his tweets also criticizing the Attorney General for writing a misleading summary of the Report. This is weak. We now have the Report, and so Barr’s summary two months ago is old, old news. The portions of the Report dealing with obstruction have few substantive retractions, and are apparently clear enough Amash himself has read them and concluded Trump is guilty. So explain why, Justin, and stop distracting with criticism of water passed under the bridge.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Dear Nancy Pelosi:

May 23, 2019 // 4 Comments »

 
This could all be over in an afternoon.

Nancy Pelosi, subpoena Mueller. Ask him one question: “Why didn’t you indict Trump for obstruction?”
 

If Mueller says “the evidence was not there,” this is over. Shut up and have the 2020 election.

If Mueller says “I intended Congress to weigh the evidence via impeachment hearings,” open the hearings that same hour.

 
For the rest of us, ask yourselves why the Dems ignore the simple resolution above in favor of endless name calling, contempt motions, legal challenges, and a likely Supreme Court fight. Are they afraid of Mueller’s answer?
 
 

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

A Short History of Impeachment, 2016-2019

May 22, 2019 // 3 Comments »

After Mueller failed to deliver a smoking gun on Russia, the media and progressives pivoted to a whole new arena, obstruction. Forget the last two years of Russia-baiting, our bad!

When Mueller failed to charge Trump with obstruction, they made up a string of explanations: road map, hidden duty call to Congress, he would have except president, etc., none of which Mueller actually made explicit when he could have.

The Report has been out for two months. Nothing has come of it. Reality stands as no charges filed. About the most noise has come from various Dems announcing this is a constitutional crisis as they try to restock the warehouse of broken impeachment dreams.

Reminder: It’s been almost three months since Michael Cohen‘s public testimony about Stormy Daniels, much longer since his behind-closed-doors version to Congress. Nothing has come of it. The big flip was a flop.

Mueller doesn’t want to testify. Maybe he has no interest in people trying to put words into his mouth for partisan purposes under the guise of information gathering. He might just point to the Report as his final word.

Anyway, no matter, impeachment is the only answer. Delete Trump’s account to save the United States! Trump is Hitler, etc., etc.

The new meme is the House will need to re-investigate obstruction, delve into taxes and pre-election business, and with Putin gone, dig around looking for something Mueller missed to impeach on. Maybe a perjury trap for Don Jr? Disbar Sekulow? Cohen said Trump under-valued some real estate in the 1980s! Deutsche Bank, that sounds nasty. Fine Bill Barr, no arrest him. Gotta be something.

That’s called Going Back to Square One.
 
OK, OK, the taxes. Let Twitter see Trump’s taxes and they’ll find all the crimes the IRS audits have missed. We swear there’s something in the taxes, please let us have just a peak.

Nancy Pelosi calls this all a cover-up, without any specifics of exactly what the president is covering up. Something. The Mueller Report took two years, is based on FISA surveillance, FBI undercover work, 500 witnesses, more than 2,800 subpoenas, 500 search warrants, 230 orders for communications records, and 13 requests to foreign governments for evidence. Pretty bad cover-up. Taxes? What crime or action are you accusing Trump of hiding? Pelosi doesn’t know. She’s claiming a cover-up of something she believes must be hidden there, without any evidence anything is there, and without acknowledging the IRS has had the taxes forever and charged nothing. The FBI can get a warrant for the taxes today, if they can show probably cause. Which Pelosi apparently cannot.

When Trump invokes due process to block that overly-broad process, they claim that is a new form of obstruction and maybe they can impeach on obstruction of investigation into the investigation of obstruction.

So, a process crime as the basis for overturning the 2016 election three years into Trump’s term. Even impeaching over a blow job seems to make more sense.

While fretting over the end of the rule of law, Dems signal they might open impeachment hearings as an expedient way of going around the courts’ ruling on the validity of their scattershot subpoenas. The justification is the Supreme Court justices are now partisan hacks who can’t be fair. Blocking Merrick Garland’s appointment was unfair. Also the Senate are partisan hacks who won’t vote against Trump no matter what and that’s not fair. Trump didn’t even win the popular vote. None of this is fair to Dems.
 
Meanwhile, per a Reuters poll, 57% of Americans think impeachment is preventing the government from addressing other issues of concern, the kitchen table stuff that drives elections.

The mania over an impeachment process which will end in a political whimper will drive a deep sense of failure within Dem voters. The 24/7 urgency will be paid off with… nothing much. Discouraged voters are not motivated voters, especially if Biden is the best they are offered.

Someone at the DNC might also ask how this unabashed desire to see blood drawn from someone surnamed Trump will play out with potential 2020 purple voters. It is entirely possible that the electorate is weary and would like to see somebody actually address immigration, health care, and economic inequality now that we’ve settled the Russian question.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Paul Manafort is the End of Act I. What’s Next?

March 11, 2019 // 10 Comments »

No one weeps for Paul Manafort. He goes to jail for Donald Trump’s sins. The irony is his sad but uneventful end of a life lived as a parasite of a corrupt political system would not have mattered a jot if special counsel Robert Mueller didn’t think he could bring down the president alongside Manafort. That Trump is still standing means we need to prepare for Act II, what happens post-Mueller.
 
But first the eulogy for what might have been. Manafort became the subject of an FBI investigation in 2014, centered on sleazy consulting work for Ukraine’s former ruling party. The surveillance was discontinued that same year and the FBI dropped the matter for lack of evidence. Manafort’s less then three month tenure as Trump campaign chairman provided the good-enough-for-government-work hook as the FBI went fishing for ties between Trump campaign associates and suspected Russian operatives.

In the end Mueller was only able to convict Manafort on eight counts (he failed on ten other counts) involving false income taxes, failing to report foreign bank accounts, and bank fraud, all revolving around Manafort’s lobbying work and almost all prior to his work for Trump. The goal of repurposing the old surveillance data was to pressure Manafort into somehow tying Trump into the ambiguous collusion narrative. But via a combination of little having happened and Manafort’s lying even about that, the Mueller ploy came up dry. Oh there was all sorts of noise — Manafort handed over campaign polling data (not a crime) to someone and some of the people Manafort knew knew some of the people who knew Putin (also not a crime.) It was all as sleazy as you want it to be, just not so useful when you have to go to court and actually prove stuff to someone other than Rachel Maddow. In sentencing Manafort, the judge noted specifically there was nothing “to do with colluding with the Russian government.”

To drive home the non-point, the judge sentenced Manafort to only 47 months, with credit for nine months already served, which means maybe two years and change after time off and parole. This was well below even the minimum recommendations for his crimes, and a far cry from the “rest of his life” the media had been braying for. The Daily Beast took it personally, saying the light sentence “felt like a slap in the face for many watching the Russia probe.” Rick Wilson went on at length over his joy in seeing Manafort’s physical deterioration while in custody, concluding “karma is a magnificent b*tch.” Summing up ‘Merica 2019, a common theme across Twitter is hoping Manafort, now age 69, dies in prison.

Though you would be forgiven for thinking of this as blood sport, Manafort’s crimes were just white collar tax stuff that at worst forms the basis of one of those lurid backpage “how the mighty have fallen” stories. There is still another round of sentencing to go on Wednesday for Manafort with a supposedly vindictive judge (this round was the easy judge, but Google “concurrent sentences” before popping the champagne) and CNN tells us the superheroes of the Southern District of New York will someday prosecute Manafort separately (Google “double jeopardy” and put the bubbly back on the shelf) so he can’t be pardoned by Trump.

Of course any pardon will come either at the very end of Trump’s only term, or inside his second term, and will not matter much more than Scooter Libby did in the grand scheme of politics. Further down the road, no newly elected Democratic president is going to start their administration off seeking revenge on the previous guys; it’ll all be about healing and coming together. Like Obama, who excused torture, never mind tax crimes: time to move forward, not look backward. Trump could also just leave Manafort to rot; he isn’t very important.

UPDATE: Manafort was sentenced for his final convictions March 13, 2019. He received 73 months, with 30 concurrent with his previous sentence. That sentence was 47 months with 9 off for time served. The total by my count is: 81 months, almost seven years. With good behavior, out in about five+ maybe?

So, so much for all that.

Bottom Line: history books ten years from now will read “Paul Manafort’s lavish lifestyle, funded by corruption, came to an end in prison. He had nothing to do with Russiagate. He was just standing too close to Trump when he got caught.” So think of Manafort (and maybe Papadopoulos, Flynn, and Gates) as the weak curtain closer to Act I. Up next is Michael Cohen, the hoped for peppy tune that brings the audience back inside the theatre for Act II.
 
It is increasingly clear Mueller has no bombshell (hear much good about the Steele dossier lately? Just that Steele was being paid simultaenously by the FBI, the DNC, and Russian oligarch Oleg Deripaska, who was owed money by Paul Manafort and wanted to out Manafort to the feds), even as his long-overdue freshman term paper is now dragging into junior year. #Russiagate, in reality always more a hashtag than a caper, has devolved into a placeholder, a way to prep the public for the new plan, two years of Benghazi-like hearings looking for a crime.

Scratch that — the Benghazi hearings will look orderly and dull in comparison. This is going to be two years of bread and circuses, with Elijah Cummings playing the calm but angry Morgan Freeman role (one kept waiting to hear him say “Now easy, young blood…” to one of his freshman representatives at the Cohen hearing) while AOC and her posse own, scold, hot take, slay, tear down, slam, and crush, for the cameras. Insurance fraud! Real estate devaluation! A Trump golf course she has to drive past everyday! Something about taxes! It’s a lot of capitalism and AOC knows from college that’s bad, right? At least until a week later, when it all comes up empty in the harsh light of sobriety. A signed check with no tie to any crime but a convict’s word is the smoking gun of impeachment? The gold standard on these things is a semen-crusted blue dress.

It’s like watching Wiley E. Coyote try something new each time but never catch the Roadrunner. Beep! Beep!

The everlasting gobsmacker of a problem remains. Ever watch Law & Order? Most episodes begin with a body on the ground. Watergate started with a break-in at Democratic National Headquarters by people quickly revealed to have direct ties to the Republicans. All things Trump began with the disbelief he won the election fairly. Everything — everything — since that has flowed from the search for a crime to reverse November 2016.

The media is chock-a-block with articles which while they take for granted the House will soon begin impeachment proceedings, offer no clear statements on exactly what the grounds for impeachment will be. Corruption is popular though the specifics are vague. Or maybe obstruction, a process crime like Mueller’s well-worn perjury traps created out of the ashes of an investigation of nothing of substance. It really doesn’t matter. Impeachment is the goal, someone will just have to find a reason sooner or later because Trump must be guilty. The problem is this is all an investigation in search of a crime. That sounded better three years ago when it all began. Watching the pivot from Russiagate to generic corruption as the main driver just exposes how empty the process is. What was supposed to be the end, Mueller, is now being characterized as only “the end of the beginning.”

NBC is more straightforward in outlining the “reasons” for impeachment than most: “The lines of investigation run from Trump’s campaign and White House operations all the way to his tax records and business dealings, and some Democrats are convinced they will ultimately be able to use their findings to tell the story of a president who has committed offenses for which he should be removed from office.”

Representative Rashida “Impeach the Mother F*cker” Tlaib is the unofficial spokesperson for the “he’s guilty, now find me the crime” line. Tlaib will introduce a resolution calling on the House Judiciary Committee “to formally move on investigating grounds for impeachment.”

The Daily Beast’s Lloyd Green seems to have figured out the situation, writing “Unlike the Nixon impeachment inquiry, the current impeachment drive did not commence against the backdrop of identifiable events that took place after Nixon was elected, or which resonated beyond the partisan divide. Here, there was no Watergate break-in or Saturday Night Massacre. Instead, impeachment feels like a cumulative punishment for ‘modern presidential,’ Trump’s ceaseless effort to define deviancy, and decency, down.”

 
A developing nasty truth about many of the accusations accumulating around the new Democratic House like snow drifts is the loop between what the Dems are doing and the media. The goal is to ever-widen the circle of things to be investigated in hopes of finding something. It works like this. An article will appear, based of course on anonymous sources, saying for example Trump tried to block a merger for political gain. Mere days later, citing the article as new evidence, House Judiciary Committee Democrats announce they need to look into the merger. Next up, a Democratic senator demands the Attorney General launch his own investigation. Often an editorial or Op-Ed will then complete the circle praising Congress for trying to get to the bottom of things.

The same thing happened after a New York Times article, based in part on those anonymous sources, triggered calls to investigate Jared Kushner’s security clearance.

The use of anonymous sources (and who knows, perhaps those “sources” are connected to the Democrats themselves) to cue the growing number of investigations up is very transparent. Concerns Trump and Fox work together are too narrow a focus on what is really going on, as mainstream outlets shift from mere partisan reporting to serving as political operatives. Donna Brazile leaking a few questions in advance to Hillary Clinton will seem quaint in retrospect.
 
That seems to be the game plan for the next two years. What remains are two big questions: will it work, and will it end.

Assuming something is found worth opening impeachment hearings over, the Republican majority in the Senate is still unlikely to convict. Trump will thus run for reelection in 2020. Will public opinion, empathy, following impeachment proceedings help him as it ultimately did Bill Clinton? How many voters will see through this politicization of the Constitutional process and turn away from the Dems? How many Democrats who want real things to happen on healthcare and immigration will see this all as just a waste of time?

Then the last question: will this all end in 2020? Because if the endless investigation tactic seems to work this time around, you can bet when the next Democrat takes the White House, they will wake up the day after their inauguration to find a special prosecutor and Congressional hearings waiting. Ten years of taxes? How about we start with twenty and see where that goes? Now, Madam President, about this handwritten note in your junior high school yearbook…
  

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Is Michael Cohen Impeachment’s Smoking Gun?

March 1, 2019 // 11 Comments »

While 8000 miles away in Vietnam the president of the United States practices nuclear diplomacy, Americans at home watched former Trump lawyer Michael Cohen stand up on his hind legs to beg for a reduced jail sentence.

Cohen, testifying on February 27 before the House Committee on Oversight and Reform (he testified behind closed doors on Tuesday to the Senate Intelligence Committee, and he will go back behind closed doors Thursday with the House Intelligence Committee), told Americans who think they already know what they think exactly what they wanted to hear: Trump is a vulgar conman, a racist, and a cheat. None of that is impeachable or criminal. Also, water is wet.

The media is burying the lede: Michael Cohen did not provide any evidence of Russian collusion with the Trump campaign, nor did he provide any evidence of collusion, active coordination or conspiracy with Wikileaks. Cohen’s accusation of a Trump crime while in office is at best an evidence-free rendering of an unclear violation of a campaign finance law usually settled with a fine. Any action going forward using Cohen’s testimony requires one to simply believe the words of Michael Cohen. That’s a big ask.

Building a criminal case, or impeachment, around the uncorroborated testimony of a disbarred, convicted felon violating attorney-client privilege to beg for a shorter sentence seems weak. Absent corroborating evidence it is hard to see Cohen’s testimony leading to impeachment or criminal charges. It all sounds very dramatic and will be played as such by the media, but in the end is another faux smoking gun. There’s just not much meat on these bones.

On Russian collusion, Cohen stated “Questions have been raised about whether I know of direct evidence that Mr. Trump or his campaign colluded with Russia. I do not. I want to be clear. But, I have my suspicions.” Cohen went on to claim he saw Don, Jr. tell his father some meeting had been set. “I concluded that Don, Jr. was referring to that June 2016 Trump Tower meeting about dirt on Hillary with the Russian representative when he walked behind his dad’s desk that day.” Cohen presented no evidence the meeting Don, Jr. referred to was with the Russians, or maybe was with the guy redoing Trump’s kitchen. A defense lawyer would be laughing as she labeled Cohen’s “conclusion” speculation and uncorroborated supposition.

The best the Democratic questioners drag out of Cohen over the course of over seven hours was “Mr. Trump’s desire to win would have him work with anyone,” when asked directly if Trump worked with Russia. Cohen did later deny the existence of the pee tape and anything else that could be used as blackmail. Not much to work with. Russiagate comes down to some Trump people noodling around in Moscow about a hotel that was never built, talking about meetings with Putin that never took place? Your big takeaway is Trump was asking about that inside his own organization until June instead of giving up following the progress earlier? That’s what you want to take to the American people as a case for impeachment, with Michael Cohen in an orange jumpsuit on a prison pass as your key witness?

On business in Russia, Cohen claims Trump was “lying to the American people” during his campaign about negotiations to build a hotel in Moscow. Leaving aside there is nothing illegal about negotiating to build a hotel, and that neither Cohen nor anyone else has shown any evidence of all the Putin connections the media keeps insisting must exist. A review of Trump’s statements show what Cohen claims are “lies to the American people” about whether or not Trump had “business” in Russia would be seen by a defense lawyer as careful parsing of words; Slate’s Ben Mathis-Lilley concludes after his own parsing at worst Trump mislead by omission and even that requires one to dig into tweets where Trump used the present tense and not the past tense to describe things.

On Stormy Daniels, Cohen showed a check for $35,000 from Trump to him, which was supposedly part of the total $130k paid to her to keep quiet about Trump and Stormy’s affair. The check does not show what the payment was for. The check does not have Stormy’s name on it. Cohen said it was part of the reimbursement for “illegal hush money I paid on his behalf.” A defense lawyer would chuckle at the idea that was “evidence.” It is a receipt for a crime only because Cohen now says it is. Under direct questioning, Cohen claimed there was no corroborating evidence beyond the 11 checks. He said he sent invoices to Trump for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. Those 11 checks will total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it that some of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the Trump Organization’s CFO. Apparently the checks are going to be used to implicate personally a person who did not sign the checks.

Paying money as part of a nondisclosure agreement (NDA) is not illegal. If Trump had been just a businessperson who had an affair, there would be nothing to discuss. People legally pay other people to be quiet all the time. Legal services such as Cohen otherwise provided are a standing campaign cost (lawyers regularly obtaining discreet resolutions of issues that threaten the interests of their clients.) The alleged illegality comes from the supposition by Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but in the text of the law “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. Campaign finance laws require proof a person was willfully violating the law. Cohen’s testimony does not prove Trump knew the payments he was making were illegal. Prosecutors would have to prove that willingness somehow if they wanted to charge the president.

Even then, that would make Trump at worst a conspirator to a contested interpretation of the Federal Election Campaign Act. At worst it is a de minimis legal violation the serious business of impeachment isn’t concerned with. It is hard to imagine impeachment hearings bogging down looking into intricacies of federal election law that otherwise confound second year law students.

On Trump ordering Cohen to lie to Congress, Cohen said “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates. In conversations… he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing. In his way, he was telling me to lie.” Cohen later referred to some sort of Trump “code” that was used to order him to lie.

On Wikileaks, Cohen stated “In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.” Someone will need NSA intercepts to prove this true because Stone and Wikileaks deny it, and Cohen says there were no others present to corroborate.

The question left aside is so what. In the larger picture, it represents limited passive knowledge on Trump’s part the emails will leak, as Cohen said Stone had no details on the upcoming content. It does not say the Russians did anything, it does not say Trump worked with Wikileaks. Stone, of course, is habitually full of crap. He had previously lied about having dinner with Assange. Even if the call was made, it remains a real likelihood Stone was overselling his access to Wikileaks. Julian Assange is a hard guy to get on the phone and would have no incentive to tip off a partisan hack like Stone and risk soiling his claims to non-partisanship. Even the New York Times has questioned how trustworthy Stone is.

Cohen said the phone call took place July 18 or 19. Trump could have read on Twitter July 7 that Wikileaks had pending releases. Earlier, the Guardian on June 12, 2016, where Assange announced he’d be releasing more Clinton emails. The newspaper stated the emails will “provide further ammunition for Donald Trump, her Republican presidential rival, who has used the issue to attack her.” The Stone call, if it took place, was based on public knowledge. Pretty much anyone with a pulse in Washington anticipated more Wikileaks releases that summer of 2016. Cohen’s bombshell had been available online for almost three years.

The emerging media bleat Trump lied in writing to Mueller about contact with Stone and thus, if Cohen is believed, committed perjury, is based solely on unconfirmed anonymous “sources.” No one outside the White House and Mueller’s office knows what Trump wrote in answer to the special prosecutor’s written interrogatories.

So this is it? A saga that began in the summer of 2016, one that commanded a Special Prosecutor to investigate if the Russian government worked with the current president of the United States to help him get elected, that claimed that president was a Russian intelligence asset under the control of Putin, is going to hinge on the minutiae of campaign finance law? That is going to be lawyered into something leading to impeachment?

As for the hearing itself, Democrats spent the day putting inflammatory words into Cohen’s mouth that he gratefully voiced to make good quotes. They focused on questions of Trump’s finances which will no doubt provide the hook for exposing Trump’s taxes. Republicans spent the time calling Cohen dishonest. Neither side distinguished themselves but gratefully no one on the dais made any specific Godfather movie references. The new POC Democrats in the House called most everyone else racists and made little virtuous speechlets.

Cohen, for his part, referred to himself more than once as the son of a Holocaust survivor and sought victimhood throughout the hearing because he will miss his family while in jail. Cohen hurt his own credibility on multiple occasions claiming not to understand simple questions just as time ran out, allowing him to dodge responding. Chairman Cummings abetted this via his on-and-off again aggressive enforcement of time limits. Cohen refused to say he’d dedicate the millions he will most certainly make off book deals and commentary roles to charity, further reducing his credibility. He dangled he had hundreds of tapes of something, but produced none. Heaven help us when #BelieveCohen starts trending.

It was going to be Comey’s testimony that took Trump down, then Papadopoulos was going to flip, or maybe Manafort or Flynn. There were tapes of something, a Russian spy with red hair who would roll over. Books by Comey and Clapper blowing the roof off things, the walls closing in again and again and again. And soon it will be Mueller time! Or may Southern District of New York time, because the media seems to be prepping us Mueller may not have much to say.

It is all exhausting. We’ll soon enough see if voters feel like a dog with a mean owner always holding out a Scooby treat he’ll never let go of. Sooner or later that dog might say, I’m either gonna bite that SOB, or just get bored and stop giving him the satisfaction of salivating around him.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Looking out the Window at 2019…

January 2, 2019 // 4 Comments »

I got up on January 1 and hurried to look out the window. Those medias made so many predictions during 2018, each one tagged with “Just wait!” that I had to see how many came true.

• No flying cars, hoverboards, home sex robots or time machines for 2018. Again. Dammit.
• Trump did not resign, get impeached, or go insane. He was not indicted, arrested, forced to quit, run out via the 25th Amendment, or jailed over the Emoluments Clause.
• It never really became “Mueller Time.”
• Nobody fired Mueller. There was no Saturday Night Massacre.
• Mattis quit in protest, but only because Trump said he wanted to stop a war.
• The U.S. did not go to war with Russia, China, Iran, North Korea or anywhere else. None of those countries invaded America. We’ll have less troops deployed in 2019 than in 2016.
• The Constitution, at least the parts Obama and Bush left intact, was still in place. The Rule of Law and the press, too. No troops in the streets, no economic devastation, Alaska was not sold back to Putin.

With such an abysmal, sad, and completely wrong record of dire predictions, you’d think the media folk would dial it back a notch as we enter the new year. You would of course be wrong.

I picked up my New York Times and learned despite being absolutely wrong on all of the above predictions and more, one writer proclaimed 2019 to be the Year of the Wolf, warning “It will be a year in which Donald Trump is isolated and unrestrained as never before. And it will be in this atmosphere that indictments will fall, provoking not just a political crisis but a constitutional one…  our very system of law is at stake.” Holy moley! There’ll be no more laws working pretty soon it says.

But none of that matters, because this article says we may need to “accept the notion that life as we know it may cease in 2018” because Trump. I got to that one a bit late, because it’s already 2019 and life as we know it has not ceased. Whew. Close call.

Salon.com knows what Mueller is up to somehow, and says the walls are closing in, but it’ll be in 2019, not last year like they said a year ago, so make a note of that. It’s because Salon just found out “Russian infiltration and sabotage of the 2016 election and Trump’s subsequent obstruction of justice are hardly the only potential high crimes and misdemeanors likely to be investigated by the new Congress.” Golly, that is worrisome. It seems to have something to do with porn star Stormy Daniels and things which happened before Trump was actually elected. Imagine how notable it will be to impeach a president for stuff he did before being president. I hope the Founders thought about that one.

Now some guy labeled as a “former Bush advisor” is even more specific. He says “the self-professed supreme dealmaker will use his presidency as a bargaining chip with federal and state authorities in 2019, agreeing to leave office in exchange for the relevant authorities not pursuing criminal charges against him, his children or the Trump Organization.” You have to read all the way to the end, but the former Bush advisor who wrote this widely-linked article had the job of regional administrator of Region 2 EPA under the Bush administration and executive director of the New Jersey Meadowlands Commission, so you know he knows this legal stuff inside and out.

Another insider, America’s Lawyer Michael Avenatti, tells us Trump, Jr. is already indicted, but see it’s a sealed secret indictment that only Avenatti knows about because he knows stuff. He’s challenged Don, Jr. on Twitter to deny this and there was no reply. So you know what that means.

MSNBC, which has been predicting the demise of Trump since day one, started the New Year with senior shouter Joe Scarborough “Calling for 25th Amendment, Trump’s Presser Show’s He’s ‘Obviously’ Not Fit for Office.” Obviously!

Oh, and there might be a military coup soon. “There’s a lot of talk in the active ranks right now about these continued assaults on general officers and the military,” retired Army Lieutenant General Mark Hertling told CNN. “Make no mistake about it, it is being discussed in the active ranks about what is occurring with the president and how he’s treating the military.” Maybe he’s right, because Maggie Haberman of the NYT said on Twitter so you know it’s true “In ways big and small, unencumbered retired senior military officers have questioned Trump’s fitness to serve in the last few weeks.”

A lot of people seem to feel it’s gonna hit the fan with the military in 2019. A professor at the Naval War College writing in the Atlantic says “the president has opened a Pandora’s box” with his criticism of the military, warning “If Trump continues on this path — and he will — we could face the most politicized and divided military since Vietnam, or even since the Civil War.” Wow, the Civil War, that was a bad one, right? The funny thing is how all the people whispering about a military coup seem to avoid saying that is a bad thing, you know, with democracy in danger and fascism and all.

But before the coup, that impeachment thing is lit. A USA Today op-ed laid out “damning evidence” Trump attempted Russia collusion in plain sight in 2016, before even getting not elected by the popular votes. I guess Mueller missed this damn evidence, so I hope someone staying in a hotel brings him a copy of the paper so he can check this out. Plain sight no less!

The Times must know stuff, too, because they wrote an article called “The Inevitability of Impeachment” and that word (I checked) means it definitely will happen.

Even Lindsey Graham knows 2019 is going to be the end, because he warns “President Trump’s loss in wall battle could be ‘end of his presidency'”

To make things very clear, Politico just says it in a headline: “Yes, 2019 Is the Year You Were Worrying About.”
 
So holy patootie, this is all really serious! It looks like all the stuff the many medias said was gonna happen in 2017 2018 is actually going to happen in 2019 you guys! Remember, you heard it here first.
  

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

Why Trump is Unlikely to Be Indicted or Impeached for Campaign Finance Crimes

December 12, 2018 // 14 Comments »

Almost overnight the focus of Russiagate shifted from treason and Trump as a Russian asset to a hyperfocus on payoffs to two women Trump slept with years ago. But even if it can be shown Donald Trump’s actions toward those two women are actually chargeable crimes, he will not be indicted while in office.

That leaves impeachment, over acts the president did before being elected. We are in a load of trouble if there is a way to impeach a president essentially retroactively, for things done before he assumed office. This is Twitter-think gone wild, destroying people for old Tweets written in some cases years ago, or holding a Supreme Court nomination hostage to yearbook scribbles. The politics of personal destruction. Let’s see where things stand.

Indictment?

Before getting into the specifics of Trump, Cohen and those payoffs, it is clear the attorneys of the Southern District of New York (SDNY), under the control of the U.S. Department of Justice, will not be permitted to break long tradition (here’s the document from the Office of the Legal Counsel which establishes it would be unconstitutional to indict) and indict a sitting president. No one will say it, but no one wants that door opened, even to get Trump; if it is, every future president can expect to find himself endlessly enveloped in frivolous indictments from prosecutors seeking to make a name for themselves and/or score political points by turning an opinion into a headline. Nope, nobody is throwing Baby political safety out with the bathwater of Trump.

There is also crazy talk SDNY is preparing the indictment against Trump now, to file against him the day he leaves office in 2021 (assuming he loses the election to Hillary/Beto or whomever), a new level of pointless revenge in America that won’t happen. No newly-elected Democratic president wants to send that Third World vengeance message alongside of obligatory “time to heal” rhetoric. And of course if Trump is elected to a second term the SDNY indictments disappear; there is a five year statute of limitations on any 2016 election finance crimes such as Trump might be accused of. As New York magazine put it in a headline, “Trump 2020 Shaping Up to Be a Campaign to Stay Out of Prison.”

Indictment of trump, now or in the future, seems headed nowhere. But we’ll talk about it endlessly anyway.

A Tale of Two Women

So bottom line: SDNY isn’t going to do anything. It’s impeachment or nothing from the Democratic House starting in January.

There are two women, Stormy Daniels and Karen McDougal, at the center of all this. Both are alleged to have had affairs with Trump, and both are said to have received money to not speak of those affairs (though they have.) You can in fact pay people to shut up about affairs. That happens all the time. It is not illegal.

The fact is Trump could have made the payment himself without violating the law. In the simplest version, if Trump had paid the women with money clearly his own, with a note attached saying “No politics, this is only to spare my family shame, you filthy bimbo,” there would be absolutely no crime. Sleaze, disgrace, cravenness, yes, of course. But the crime, if it exists, is based on the way this was done, not that it was done. So can any of this be criminalized to the extent that it becomes the “high crime or misdemeanor” necessary to impeach Trump?

Let’s start with Stormy.

Stormy Daniels

For Stormy’s $130,000 payoff to morph into something illegal, it will be necessary for someone to determine the money paid her came from campaign funds, that it was a donation. If it was 100% Trump’s private money, there is no case. Nothing Mueller or the SDNY has released has said where the money came from. Think about think how complex Trump’s finances are. Proving the money was campaign funds is a critical part of this. Keep in mind the idea that campaign funds are illegal to use here hinges on none of this cash was Trump’s own money, even money he donated himself to his own campaign. The illegal part is based mostly on a $2,700 donation limit imposed on the supposed “giver,” Michael Cohen in this case, a limit which does not apply to the candidate himself. The campaign funds part comes in in tracking the source of the cash used to reimburse Cohen.

In short, the payment is not a donation if it was made for an expense that was independent of the campaign – that is, money that would have been paid even if there were no campaign.

If the money can be shown to be campaign funds or a donation by Cohen, one next has to prove the purpose of the payoff was to influence the election, not say to prevent shaming Trump’s family. Absent hard information to the contrary, Trump could claim he wanted to hide the affair say from his young son reading about it in the media, and maybe even show he’s been paying off women for decades, long before he ran for president, as proof that Stormy was just another in a long line of galpals paid to shut up after the deed.

If the money can be shown to be campaign funds and somehow intent was clear, then impeachment would still require tying all that to Trump, because as things stand at this moment, it was Trump lawyer Michael Cohen who paid the money out with whatever intent Cohen himself had at that time. Trump himself did not pay anything to Stormy per se.

Cohen, in his guilty pleas seeking lenient sentences on his unrelated tax cheating convictions, says that was the case, for him, that his intent was to influence the election. We currently have only his word that it was also Trump’s intent when (again, only on Cohen’s word) Trump ordered him to make the payoff. Absent additional information, those key elements of the crime depend on convicted felon Michael Cohen’s impeachment testimony from his jail cell as to culpability and intent of the president.

Then there is the question of the money again. Cohen claims he paid Stormy using his own personal funds, and then was reimbursed by Trump. Assuming that is true, then step one (above) would be to prove the reimbursement money came from campaign donations and Trump knew the money was being reimbursed for the payoff specifically. Intent is very much a factor in proving a crime here. So if say Cohen sent an unitemized invoice (as Rudy Giuliani has suggested) to Trump for a dollar amount simply for “services rendered” (call it plausible denial), Trump can claim he had no idea the money was being used illegally. So hopefully someone will produce a receipt annotated “Shady Payoff to Stormy.”

This is a complicated case to prove — that the payoffs were in fact “campaign donations,” that the intent was to influence an election after Trump had already made clear to the electorate his sleazy background with women, that Trump knew in detail what Cohen said was done by him, and that Trump ordered these things to happen. That would mostly leave Trump guilty of some sort of “conspiracy to…” charge, something second hand the public might see as short of impeachable.

The fact that Cohen chose to plead guilty to campaign finance crimes seeking a lighter sentence means that none of these questions were ever contested in a court, nothing was proven, no evidence produced, and no witnesses called and examined. Cohen’s choice to plead guilty is not prima facie evidence of the truth of any of this. His guilty plea is not “evidence” in the impeachment of Trump, though Cohen would obviously be a key witness.

One can imagine the media circus as Cohen, maybe clad in an orange jumpsuit on day pass from some Federal prison, testifies alongside Stormy Daniels, whose skills at anal sex are watchable on Porhub turning breaks in the proceedings. Also,

A federal judge on Tuesday ordered Stormy Daniels to pay nearly $300,000 in legal fees to Trump over a defamation lawsuit dismissed on October 15 to add to the gathering of shame. Bazinga!

Karen McDougal

If the number of elements which must be proven to impeach Trump over what happened with Stormy seems a long road, the case of Karen McDougal is even more complex.

In McDougal’s case, Cohen claims he paid $150,000 in Trump money to David Pecker (you can’t make this stuff up), who runs American Media, which controls the National Enquirer. Pecker then supposedly used that money to buy exclusive rights to McDougal’s story of sex with Trump with the intent of never publishing the tale, thus burying it. Although Cohen said he would reimburse Pecker (and then Cohen would be reimbursed by Trump), the reimbursement did not happen. So the crime here is Cohen causing a third party (Pecker) to make an illegal contribution.

Illegal contribution? Well, that’s another point in both cases, Stormy and McDougal. For these cases to add up to crimes, instead of a legal payoff to remain quiet/buy the rights to a story, the House would have to somehow conclude the money was actually a contribution to Trump’s campaign, a contribution either made illegally beyond allowable limits, or made illegally to influence the election, or made illegally just because it wasn’t disclosed. If the whole mess was to be heard in a real court, this point of law would be a showstopper, and a focal point for both sides to contest. How it will be adjudicated in front of Congress is anyone’s guess, but expect Trump’s defense team, if things get that far, to try and move the question out of Congress and into a real court.

Another element is it must be shown Pecker spiked the McDougal story to influence the election, not simply as an editorial decision. Fun fact: prosecutors first granted Pecker (and another American Media executive, Dylan Howard) immunity to testify in this case. They then announced a “Non-Prosecution Agreement” with American Media, which quickly said the whole thing was political. No one is above the law, unless you are willing to testify against someone more important than you, in which case you get off scot-free for your own crimes!

And maybe someday we can talk about the third world system we are watching play out where plea bargains and lesser sentences are bartered for nasty testimony.

The Jury of Us

Proving the many legal points is hard enough, but that’s just the beginning of the real test. This is all about the politics of destruction; Democrats couldn’t beat Trump n 2016, they couldn’t gin up enough Russia-fever to get him, and so may choose to settle on working these payoffs as their last act.

Keep in mind all of the above elements will need to be proven in hearings held in the House, with witnesses and defense teams, all no doubt televised. There is a difference between what a prosecutor asserts in a one-sided filing designed (see the job title, “to prosecute,” the other side is called the defense) to present someone as guilty, and proving those same elements of an actual on-the-books crime, with evidence. There is a difference between what you so desperately want to believe is true, and what actually is true under the Rule of Law you also believe is so in danger but would throw away in a heartbeat to oust Trump.

Democrats will have to answer in a way average Americans will agree with how this is all so different from when it was discovered Barack Obama’s 2008 presidential campaign was guilty of violations involving nearly $2 million – an amount that dwarfs the $280,000 in Cohen’s case – the Obama Justice Department decided not to prosecute. Instead, the matter was quietly disposed of by a $375,000 fine by the Federal Election Commission. How’d we go from a fine to impeachment anyway?

To be sure, SDNY prosecutors have charged election finance violations as felonies before, most notably in 2014 against conservative Dinesh D’Souza, whom Trump later pardoned. That no doubt displeased the folks at SDNY, so there’s an element of shallow revenge for the public to chew on as well.

Politics

The story will unfold in the context of hearings where the real jury are the Americans who’ll vote in 2020. Since absent some bombshell the Republican Senate will never convict Trump no matter what the House does, this is all for show, and we’re the audience. Democrats thinking this all through must remember the dumpster fire of the Bill Clinton impeachment, where in return for their efforts to trump up similar charges and their actual impeachment vote against Clinton, they ended up with the voters turning against them, sick of the whole thing and ultimately taking Bill’s side more or less-ish.

Can the Democrats really expect to convince a large number of Americans that in his third year in office, Trump needs to be impeached over a violation of conspiracy to violate Section 30116(a)(7)(A) of the election laws which occurred before he was even elected? That the 2016 election needs to be overturned for that, for the good of the country, and that this wasn’t just the politics of personal destruction out of control again, as we saw with Kavanaugh?

They might. The Democrats from Day One have wanted to put an asterisk by Trump’s election. The Russiagate-collusion narrative has turned dusty and old. It isn’t as easy to understand or as sexy as a pee tape, but in its place Dems may try and use Trump’s payments to two mistresses as a way of locking in their narrative that Trump won by cheating. Mueller is a man of the Deep State, a fixer for them, and his dirty hands are being well-employed with fixing the problem of Trump being elected when the Plan was always for Hillary.

Or maybe not. I don’t think the Dems will risk it. I don’t think Trump is going to face impeachment, or indictment. There will be a flow of noise and threats and dire Maddow-esque predictions, but this all ends one way or another with the election of 2020, not impeachment or indictment.

BONUS

It’s easy to forget the special prosecutor who sent Bill Clinton into impeachment began with the financial mess of Whitewater and ended with Monica Lewinsky and lying to Congress, even as Mueller started with Putin controlling the Oval Office and seems likely to end with payoffs to a porn star.

The concept of appointing a Special Prosecutor with the task of finding SOMETHING to try and overthrown an election is an ugly one. While so many Americans are near-joyful over each crumb that suggests Trump is in deeper trouble, I wonder how they’ll feel when a Special Prosecutor becomes a standard opposition weapon used against a president they like. A reminder you can’t put the genie back in the bottle.

BONUS BONUS

And yes, to save some time, let’s just assume all the people who have commented for 2.5 years “But just wait!” have already done that again here, ‘kay?

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas

The People v. Trump: Is There a Case for the 25th Amendment?

September 6, 2018 // 21 Comments »

(This post originally ran in January, the last time “Use the 25th!” was trending.)

The media is of one mind: Donald Trump is mentally incompetent and must be removed from office before he blows us all to hell. It says so on Vox, New York Review of Books, CNN, The Intercept, CNBC, The Nation, Bill Moyers, Salon, and the NYT. A new book, The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President, concludes “Trump’s mental state presents a clear and present danger to our nation and individual well-being.”

The solution is in the 25th Amendment to the Constitution. The 25A creates a mechanism aside impeachment to remove an “incapacitated” president, and Trump’s mental state, some believe, qualifies him. Is there a case?

Dr. Bandy Lee, one of the editors of The Dangerous Case of Donald Trump, says yes. Her primary evidence is tweets Trump sent threatening Kim Jong Un. She really has no other ammunition: no doctor who says Trump is insane, including Lee, has examined him. No doctor that has examined him says he is insane. Third party anonymous accusations of incompetence are shot through with gossip. A book written by a Hollywood trash reporter is otherwise held up as critical evidence of the inner workings of the president’s mind.

So is there a case without the tweets? Not really. Lee adds while Trump has not committed violent acts against himself or others, his “verbal aggressiveness, history of boasting about sexual assault, history of inciting violence at his rallies, and history of endorsing violence in his key public speeches are the best predictors of future violence” and thus concludes he will destroy the world. Lee also weakly points to Trump “being drawn to violent videos.” Oh my.

We might instead look at the actual decisions Trump has made, and those of his predecessors. One president used nuclear weapons to decimate two cities worth of innocents, and a set of presidents squandered hundreds of thousands of American lives watering Vietnam with blood. Ronald Reagan was famously caught over an open mic saying he was going to start bombing the Soviet Union in the next few minutes. Another president lied about WMDs to launch an invasion of Iraq in part to avenge his dad. The same guy mocked North Korea’s leader as a pygmy. Obama said he “will not hesitate to use our military might” against the North, knowing that meant Armageddon. Historical psychiatrists say half of our past presidents may have suffered some sort of mental illness. If Trump is dangerous as president, he seems to have company.

But how can we know? Trump will never voluntarily undergo a mental competency exam, though courts can order people to submit. But even Lee, who met with Congressional representatives to press the case Trump is insane, admits this is unlikely to happen. “Many lawyer groups have actually volunteered to file for a court paper to ensure that the security staff will cooperate with us,” Lee said. “But we have declined, since this will really look like a coup, and while we are trying to prevent violence, we don’t wish to incite it through, say, an insurrection.”

There doesn’t seem much of a case. Still, people arguing Trump is insane and must be removed from office point to the 25th Amendment to the Constitution as just what the doctor ordered.

The Constitution did not originally lay out (Article II, Section 1, Clause 6) what happens if a president dies or becomes incapacitated. It was just assumed the Vice President would serve as “Acting President.” The 25A, passed after the Kennedy assassination, created the first set of rules for this sort of situation.

The 25A has four short subsections. If the presidency goes vacant (for example, fatal heart attack), the vice president becomes president. If the vice-presidency goes vacant, the president chooses a new VP. If the president knows he’ll be incapacitated (unable to carry out his job, for example, due to scheduled surgery), he can voluntarily and temporarily assign his duties to the vice president. If the president is truly incapacitated (unconscious after an assassination attempt) and can’t voluntarily assign away his duties, the VP and cabinet can do it for him, with a two-thirds majority confirming vote of the House and Senate.

In the minds of the “Trump is Insane” crowd what matters most is that never-used fourth subsection, the incapacitation clause. People claim because Trump is insane he is unable to carry out his duties, and so Mike Pence, et al, must step in and transfer power away from him today. Trump would legally exist in the same status as Grandpa Simpson in the nursing home, and Pence would take over. Among other problems, this thinking imagines the 25A’s legally specific term “unable” means the same thing as the vernacular “unfit.” An unconscious man is unable to drive. A man who forgot his glasses is unfit, but still able, to drive. The 25A only refers to the first case.

The use of the 25A to dethrone Trump is the kind of thing non-experts with too much Google time can convince themselves is true. But unlike much of the Constitution, where understanding original intent requires the Supreme Court and a close reading of the Federalist Papers, the 25A is modern legislation. We know the drafters’ intent was an administrative procedure, not a political thunderbolt. The 25A premises the president will almost always invoke succession himself, either by dying in office, or by anticipating he will be unable to discharge his duties, as in 2007 when George W. Bush went under anesthesia for his annual colonoscopy and signed things over to his vice president for a few hours.

The reason the 25A is not intended to be used adversarially is the Constitution already specifies impeachment as the way to force an unfit president out against his will, his unfitness specifically a result of “high crimes and misdemeanors.” The people who wrote the 25A did not intend it to be an alternate method of impeachment or a do-over for an election.

It has to be so; the Constitution at its core grants ultimate power to the people to decide, deliberately, not in panic, every four years, who is president. Anything otherwise would mean the drafters of the 25A wrote a back door into the Constitution that would allow a group of government officials, many of whom in the Cabinet were elected by nobody, to overthrow an elected president who they simply think has turned out to be bad at his job.

Accusations of mental illness are subjective, unprovable in this case, and alarmist, perfect fodder to displace the grinding technicalities of Russiagate. Denouncing one’s political opponents as crazy was a tried and true Soviet and Maoist tactic, and a movie trope where the youngsters try to get the patriarch shut away to grab his fortune. We fear the mentally ill, and psychiatric name calling against Trump invokes that fear. “The 25th Amendment would require, for mental incapacity, a major psychotic break,” said one former Harvard Law School professor. “This is hope over reality. If we don’t like someone’s politics we rail against him, we campaign against him, we don’t use the psychiatric system against him. That’s just dangerous.”

People saying the president is mentally ill and the 25A is the cure know they have no rational basis for their position. They know the 25A is not a work-around for impeachment proceedings they are unlikely to see. They are aware they are unethically trying to medicalize bad leadership, damning it with the taint of mental illness. They know Mike Pence and Trump’s own cabinet will never sign off on a power transfer, and they don’t want Pence in the Oval Office anyway. They know this is all kabuki, liberal fan fiction, a shadow play. The talk of mental illness and the 25A is simply political sabotage ahead of the 2018 mid-term elections.

Trump’s time in office is finite, but what happens around him will outlast his tenure. It is dangerous to mess with the very fundamentals of our democracy, where the people choose the president, replacing that with a kabal called into session by pop psychologists. This is an attack on the process at its roots; you yokels voted for the wrong guy so somebody smarter has to clean up.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Biden, Democracy, Other Ideas