Sunday, December 8, 2019

A Lawless President Asking to Be Impeached

      With the House of Representatives on the verge of drafting articles of impeachment, President Trump has tried to undermine the credibility of the Democrats' impeachment inquiry by complaining in effect that they have been gunning for him since the start of his presidency three years ago. He is right, but he has only himself to blame.
      Trump has been inviting impeachment since the very first day of his presidency by, for example, his open violation of the Constitution's Foreign and Domestic Emoluments Clauses. And now, even after getting wrist-slapped in the Russia investigation on foreign interference in the 2016 election and accused of obstruction, Trump recklessly abuses the powers of his office even more blatantly by actively seeking Ukraine's assistance in the 2020 election and stiff-arming the House impeachment inquiry.
      On the Emoluments Clause issue, Trump has argued in federal court litigation that arms-length patronage of Trump properties by foreign governments or domestic groups does not constitute a prohibited "emolument." With the cases still pending, judges in three cases have rejected that argument. Heedless of the issue, Trump has failed to divest himself of his interest in the Trump Organization and has done nothing to discourage foreign governments from trying to curry favor by patronize the Trump Hotel in Washington.
      The Emoluments Clause issue was one of five counts included in the first impeachment resolution against Trump introduced in what was then the Republican-majority House in November 2017. A dozen presidents before Trump had been named in impeachment resolutions — not just Johnson, Nixon, and Clinton — but no previous chief executive had been charged with impeachable conduct as early as his first year in office.
      That unacted-on resolution by six Democratic representatives also charged Trump with obstructing justice by firing FBI director James Comey to thwart the then-ongoing Russia investigation by special counsel Robert Mueller. Mueller's eventual report cited the firing of Comey along with other actions as evidence of obstruction, but Mueller bowed to Justice Department policy by declining to bring a criminal charge against the president.
      Having gotten away with a warning, a law-abiding president might have taken care to avoid any obstructive conduct later on. Trump chose instead to double down on obstruction by declaring the House impeachment inquiry unconstitutional and refusing to cooperate in any way. The House Intelligence Committee report released last week [Dec. 3] notes at page 28 that Trump is "the first president in the history of the United States to seek to completely obstruct an impeachment inquiry undertaken by the House of Representatives . . . " He did so, the report explains, by "instructing witnesses and agencies to ignore subpoenas for documents and testimony."
      Trump escaped mostly unscathed in the Russia investigation after Mueller's staff failed to find evidence of direct collusion between the Trump campaign and the Russian operatives who were carrying out Vladimir Putin's undisguised preference for Trump in the election. As with his obstructive conduct, Trump decided to double down on foreign interference in U.S. politics by directly soliciting "a favor" from the new Ukranian president  Volodymyr Zelensky in the now infamous July 25 telephone — specifically, an investigation into Trump's political rival, former vice president Joe Biden.
      Trump may sincerely believe that the telephone was "perfect," but hardly anyone — not even most Republicans — agrees. The telephone call, the House Intelligence Committee report notes at page 10, was "not an isolated occurrence, nor was it the product of a naive president." Trump, the report notes, was elected "with the benefit of an unprecedented and sweeping campaign of election interference undertaken by Russia in his favor."
      With most of the facts in the Ukraine investigation undisputed, Republicans and Trump apologists were left at last week's House Judiciary Committee hearing [Dec. 4] to argue that the record is incomplete and the move to impeach rushed. Jonathan Turley, the George Washington University law professor who served as the Republicans' expert witness at the all-day hearing, wrongly claimed that the Trump impeachment would be the fastest presidential impeachment in U.S. history.
      Even with the hearing in progress, reporter Emily Singer showed in an article for the progressive news site The American Independent that Turley's assertion was "demonstrably false." In fact, Andrew Johnson was impeached in 1868 just three days after the House started the process; Bill Clinton was impeached in 1998 75 days after the GOP-controlled House started the process. House Speaker Nancy Pelosi greenlighted the inquiry into Trump on Sept. 24, Singer noted — 71 days earlier.
      Turley spoke after three other constitutional law experts — Harvard's Noah Feldman, Stanford's Pam Karlan, and the University of North Carolina's Michael Gerhardt — all agreed that Trump has committed impeachable conduct. Turley's performance drew a negative review from one of his former students, but at week's end he had yet to apologize for his misstatement or to convincingly reconcile his support for impeaching Clinton two decades ago with his stance toward Trump today.
      In asking the House committee leaders to proceed with drafting articles of impeachment, Pelosi maintained on Thursday [Dec. 5] that Trump "gave us no choice." For a deeply divided country, the forecast for months ahead is more division, as Republicans in the Senate are challenged to act as "impartial" jurors in a constitutional test unlike any in previous U.S. history.

Sunday, December 1, 2019

Kavanaugh Lines Up With Anti-Regulatory Stance

      Supreme Court Justice Brett Kavanaugh steered clear of controversy when he used the Federalist Society's annual meeting last month [Nov. 14] as the forum for his first public appearance since his contentious confirmation a year ago. Less than two weeks later, however, Kavanaugh went out of his way in a below-the-radar Supreme Court case to advance a major conservative issue by calling for federal courts to expand their role in reviewing regulatory initiatives by federal administrative agencies.
      Kavanaugh fired his shot across the bow last week [Nov. 25] even as he joined in shelving a case, Paul v. United States, that asked the Court to give new life to the so-called nondelegation doctrine as a limit on administrative agencies' powers. The petitioner in the case, Ronald Paul, wanted the Court to invalidate decisions by three U.S. attorneys general to extend the federal sex offender registration law to sex offenders like himself convicted before the law was enacted in 2007.
      The Court rejected that argument in a similar case, Gundy v. United States, decided on June 20 by a splintered 5-3 majority without Kavanaugh's participation because it was argued before his confirmation. In his "statement
 respecting the denial of certiorari," Kavanaugh said he agreed with the decision not to hear Paul's case because it raised "the same statutory issue resolved last term in Gundy . . . ."
      Kavanaugh went on, however, to praise Justice Neil Gorsuch's dissenting opinion in Gundy and to call for considering Gorsuch's view in a future case. Kavanaugh's position creates a potential five-vote majority in favor of what would amount to a mini-revolution in judicial review of regulatory policy. Under Gorsuch's approach, federal courts would be expected to strike down regulations that go beyond "filling up details" in congressional statutes and instead embody "major policy decisions" properly for Congress to make.
      Political conservatives have long complained that federal regulators often go beyond their powers delegated by Congress to promulgate regulations that ought to be enacted if at all by elected representatives in Congress instead of unelected federal bureaucrats. Despite the long history of these complaints, the Supreme Court has invoked the nondelegation doctrine only twice to strike down federal regulatory initiatives in two decisions in 1935 that dealt with New Deal enactments under President Franklin D. Roosevelt.
      The defendants in Gundy and Paul argued that attorneys general under Presidents George W. Bush and Barack Obama had gone too far in issuing regulations that applied the Sexual Offender Registration and Notification Act (SORNA) retroactively to sex offenders convicted before it was enacted. The law included a provision instructing the attorney general to cover pre-Act offenders "as soon as feasible."
      In Gundy, Justice Elena Kagan wrote for a plurality for four justices to find that provision sufficient authority for the regulations to extend SORNA's registration requirements. Justice Samuel A. Alito Jr. provided the fifth vote for the decision in a limited concurring opinion that he used to call for reviving the nondelegation doctrine in a future case with a full nine-justice bench.
      Gorsuch was joined in his 33-page dissenting opinion by two other conservatives: Chief Justice John G. Roberts Jr. and associate justice Clarence Thomas. Gorsuch argued for a stronger approach to nondelegation issues to prevent what he called "delegation run riot," invoking Justice Benjamin Cardozo's oft-quoted phrase from one of the 1935 decisions.
      Kavanaugh praised what he called Gorsuch's "scholarly analysis" of the nondelegation doctrine in a four-paragraph opinion that traced Gorsuch's view to a concurring opinion written almost 40 years ago by then-associate justice William H. Rehnquist. Rehnquist provided the fifth vote in the Court's decision in Industrial Union Department v. American Petroleum Institute (1980) to strike down strict benzene exposure standards promulgated by the Occupational Safety and Health Administration (OSHA).
      The four moderate-to-liberal dissenters in that case complained that the four justices in the plurality struck down the OSHA regulation based on "the plurality's own views of proper regulatory policy." Ian Milhiser, a friend and colleague, channeled this critique in a sharply written column for the online news site Vox. Kavanaugh's opinion, Milhiser wrote, "shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power."
      From the opposite perspective, the libertarian commentator Damon Root hailed Kavanaugh's opinion in a short column for Reason.com as evidence that the rookie justice "seems to have joined Gorsuch's campaign to put some judicial teeth into the nondelegation doctrine." Root called the development "welcome news." In his column, however, Milhiser warned that Gorsuch's approach, if adopted, would "severely weaken seminal laws such as the Clean Air Act and the Clean Water Act."
      Gorsuch took pains in his opinion to leave room for Congress to delegate fill-in-the-blanks power to regulatory agencies, for example, when based on specified factual findings. But the decisions he cited all struck down regulatory initiatives       for example, the regulations promulgated by the Food and Drug Administration (FDA) to limit marketing of tobacco products to minors.
      In his opinion, Gorsuch vigorously insisted on the need for important policy decisions to be made by the people's elected representatives. Yet his position would necessarily result in giving the five unelected Republican-appointed justices broad discretion to strike down regulations that run contrary to their political views. The irony is too thick to overlook.

Saturday, November 23, 2019

To Impeach Trump, No Need to Stop at Single Count

      No sensible prosecutor would start a criminal case by limiting the case to only one of several charges supported by the evidence, but that is what House Democrats have chosen unwisely to do in their impeachment inquiry against President Donald J. Trump.
      Following instructions from House Speaker Nancy Pelosi, the House Intelligence Committee devoted four days of public hearings this week [Nov. 19-22] only to a single charge against Trump, phrased alternately as bribery or extortion. The Intelligence Committee's Democrats guided eight witnesses in all through the details of Trump's decision to withhold military aid to Ukraine in order to pressure Ukraine's newly elected president to open an investigation into Trump's political opponent, former vice president Joe Biden.
      The nonpartisan political reform group Common Cause marked the end of the initial impeachment hearings last week [Nov. 21] by trying to remedy the Democrats' short-sighted decision with detailed drafts of nine articles of impeachment against Trump. The coauthors of the 64-page report, Common Cause president Karen Hobert Flynn and vice president for policy Paul Seamus Ryan, sought to bolster its credibility by noting that the group urged caution on impeachment even as Democrats and anti-Trump partisans clamored through most of the past three years to put him in the congressional dock.
      House Democrats have yet to draft articles of impeachment, but the Democratic majority seems certain to approve at least one article once it is drafted and approved by the House Judiciary Committee. Through four days of hearings, the Intelligence Committee Republicans showed no sign of wavering in their unquestioning defense of Trump.
      From the Ukraine episode itself, the Common Cause report fashions four separate articles of impeachment charging Trump with abuse of power, bribery, obstruction of justice, and campaign finance violations. The withholding of military aid amounts to abuse of power, according to the report, while the pressure on the Ukrainian president Volodymyr Zelensky for an investigation amounts to solicitation of a bribe. 
      Trump obstructed justice in the Ukraine inquiry, the report argues, by directing executive branch officials not to comply with congressional subpoenas and by intimidating those witnesses who did agree to testify. Trump is also obstructing justice, the report contends, by soliciting political contributions for U.S. senators "for the purpose of obtaining [their] acquittal votes in an impeachment proceeding."
      As for the claimed campaign finance violations, Common Cause has already filed a complaint with the Federal Election Commission (FEC) charging Trump with seeking a prohibited contribution from a foreign government — specifically, the requested investigation of the Bidens. The request itself amounts to a violation, the report argues, with or without a quid pro quo and even without an investigation undertaken.
      As a fifth article of impeachment, Common Cause proposes to fashion an obstruction of justice charge against Trump in regard to the Russia investigation. The report details the 10 separate instances of obstruction that special counsel Robert Mueller cited in his report while constrained from bringing an actual criminal charge.
      The bill of particulars, quoted directly from the Mueller report, include the firing of FBI director James Comey, the efforts to have Attorney General Jeff Sessions take charge of the investigation, and the never-acted-on instruction to White House counsel Don McGahn to fire Mueller. The report notes that Mueller specifically denied having exonerated Trump in regard to obstruction.
      As a separate article, Common Cause suggests that Trump could be impeached for abuse of power in connection with the Russia investigation and likens that article to charges approved by the House Judiciary Committee against Nixon in 1974 and included in the Clinton impeachment in 1998. Trump abused power, the report contends, by such actions as pressuring Comey to end the investigation of national security adviser Michael Flynn and "dangling the possibility of pardons" for under-investigation aides, including Flynn, ex-campaign chair Paul Manafort, and fixer-lawyer Michael Cohen.
      As a seventh article of impeachment, Common Cause urges that Trump be charged with accepting foreign and domestic emoluments in violation of an explicit constitutional command through his continued ownership interest in the Trump Organization and the patronage by favor-seeking foreign governments and domestic political groups. The report acknowledges litigation over the issue and points to the courts' reluctance so far to adjudicate the dispute as evidence that it is up to Congress to act.
      As two final articles of impeachment, Common Cause calls for Trump to be charged with abuse of power by failing to take steps to protect U.S. elections from foreign interference — indeed, by actively soliciting such interference in his 2016 campaign. The group also proposes to use the hush payments to porn star Stormy Daniels as a basis for a ninth article charging Trump with campaign finance violations by failing to report the expenditure.
      For each of the articles, Common Cause suggests language along these lines. Trump, the articles recite, "has undermined the integrity of his office, has brought disrepute on the presidency, has betrayed his trust as president and has acted in a manner subversive of the rule of law and justice in the United States to the manifest injury of the people of the United States."
      Nine articles of impeachment would be a bridge way too far for House Democrats, but surely the four suggested Ukraine-related articles could be drafted without further hearings or the obstruction of justice count in regard to the Russia investigation as well. It bears noting that Nixon and Clinton both faced multiple articles of impeachment; Trump deserves nothing less.

Sunday, November 17, 2019

Witnesses Detail Trump's Impeachable Offense

      The evidence of President Trump's impeachable offense, attempted bribery, has now been laid out in sworn, first-hand testimony by four U.S. diplomats, three of them in public hearings. The most incriminating evidence comes from Trump's own words, as recounted in the summary of his July 25 telephone call with the Ukrainian president Volodymyr Zelensky and an overheard cell phone conversation the next day with his own special envoy, Gordon Sondland.
      The evidence, circumstantial and now direct, confirms that Trump withheld vital military assistance from Ukraine in order to pressure Zelensky to open politically charged investigations into former vice president Joe Biden and Biden's son Hunter. The evidence fully satisfies even the demanding beyond-a-reasonable-doubt standard that would be applicable in a criminal trial but not in impeachment. Still, the evidence has yet to move any of the see-no-evil Republican lawmakers even after their repeated calls for first-hand evidence in public hearings have now been met.
      The House impeachment inquiry moved into high gear with testimony from three well respected veteran diplomats [Nov. 13, 14] that Trump obsessed for months over his efforts to get the new Ukrainian president to open investigations into the Bidens. In Trump's warped mindset, Biden was acting to protect his son's role with the Ukrainian natural gas company Burisma while carrying out official U.S. policy as vice president in December 2015 to pressure the Kyiv regime to fire the ineffectual and corrupt prosecutor general Viktor Shokin.
      Astonishingly, the same Donald Trump who still wants to put Hillary Clinton behind bars for forwarding classified material on a private email server conducted U.S. foreign policy with Sondland on a cell phone with the U.S. ambassador in a non-secure Kyiv restaurant. Trump spoke loudly enough to be heard by those in the restaurant, including a foreign service officer posted to the U.S. Embassy. David Holmes testified privately that he heard Trump ask Sondland whether Zelensky had agreed to open an investigation into the Bidens. Sondland answered yes, according to Holmes' written statement, as obtained by news organizations before Holmes' closed-door session late Friday [Nov. 15].
      Holmes said he heard Trump respond, "So he's going to do the investigation?" Sondland, a megadonor to Trump's campaign who was rewarded with appointment as U.S. ambassador to the European Union, assured Trump that Zelensky would do "anything you ask him to do."  Holmes later pressed for details from Sondland, who told him that Trump cared not about Ukraine but about "big stuff that benefits the president, like the Biden investigation."
      Republicans have belittled the evidence by noting that the diplomats who testified about Trump's attempted quid pro quo had no direct conversations themselves with the president. Sondland is scheduled to testify later this week [week of Nov. 18] and is certain to be pressed for details of the cell phone conversation and half a dozen other conversations he is now reported to have had with Trump.
      Sondland, it needs to be recalled, said in his initial deposition that he never thought there was any precondition on the U.S. aid to Ukraine. But with a perjury charge possibly in mind, he later recalled in a four-page sworn statement that he told a ranking Ukrainian official that aid was unlikely unless Zelensky delivered the so-called "anticorruption statement" that had been under discussion for weeks.
      Sondland's description of the statement being drafted for Zelensky was flatly contradicted in testimony by his superior, George Kent, deputy assistant secretary of state for European and Eurasian affairs. "That was not an anti-corruption statement," Kent testified to the House committee. Meanwhile, the president's personal attorney, Rudy Giuliani, was weighing in on the drafting process too, according to Kent's testimony. Giuliani told the Ukrainians that the statement would not be acceptable to Trump unless it specifically mentioned the Bidens.
      Republicans and other Trump apologists —  but I repeat myself — have tried out several lines of defense for the president's abuse of power. Mick Mulvaney, the acting White House chief of staff, embarrassingly acknowledged what a reporter described in his question as a quid pro quo and then went on to say, "We do that all the time." Not so, according to diplomat William Taylor, who was left as chargé d'affaires in the U.S. embassy in Kyiv after ambassador Marie Yovanovitch was peremptorily dismissed for as-yet unexplained differences with Trump.
      For a while, Republicans also appeared to be suggesting that Giuliani and his shady Ukrainian cronies were acting on their own, with Trump supposedly unaware. That dog simply won't hunt, given the direct evidence now of Trump's involvement.
      Equally unavailing is the line of defense put forward most succinctly in the hearing by the one-time Trump critic New York Republican Elise Stefanik, who emphasized that the deferred military assistance was eventually delivered without any move by Zelensky to open the asked-for investigations. The federal bribery statute, 18 U.S.C. §201, is instructive on the point. The law broadly makes it illegal to "give, offer, or promise anything of value to a public official . . . to influence any official act," whether or not the offered bribe is paid and whether or not the requested official act is completed.
      With hearings set to resume, Republicans need to be pressed to answer the rhetorical question that the committee's chairman, Rep. Adam Schiff, posed from the center chair. "If this is not impeachable conduct, what is?" Schiff asked. From the Republicans, crickets.

Saturday, November 9, 2019

Trump to Test Supreme Court's Republican Tilt

      The Republican-majority Supreme Court has yet to issue any decisions this term, but the justices' partisan tilt can be seen in several of the term's early case-selecting decisions.
       The justices have gone out of their way to tee up a conservative wish-list of cases on such topics as abortion rights, gun rights, and presidential power. Meanwhile, President Trump plans to ask the justices on Thursday [Nov. 14] to reverse the federal appeals court decision to enforce a New York prosecutor's subpoena for Trump's tax returns and financial records for use in a state criminal investigation.
      The ruling by the Second U.S. Circuit Court of Appeals in the subpoena case, Trump v. Vance, shredded all of Trump's arguments to block the subpoena issued by the office of the Manhattan district attorney, Cyrus Vance Jr., for Trump Organization records held by Trump's accounting firm, Mazars.
       Vance says the state grand jury needs the records to investigate possible criminal violations by Trump and his businesses, but Trump's lawyers argue that presidential immunity protects him not only from indictment but also from criminal investigation at all. That position, backed by Justice Department lawyers, contradicts the Supreme Court's decisions in two previous presidential immunity disputes.
      The Court's unanimous decision in the Watergate tapes case, Nixon v. United States (1974), upheld the special prosecutor's subpoena of Nixon's Oval Office tape recordings in the face of an executive privilege claim. Later, the Court ruled in Clinton v. Jones (1997), also unanimously, that a president has no immunity from being forced to testify in civil litigation relating to conduct before taking office.
      The Second Circuit's ruling, issued on Monday [Nov. 4], cites those decisions while emphasizing that the subpoena directed to Trump's accountants requires no action by Trump at all. The appeals court panel included three Democratic appointees, with the 34-page opinion written by the court's chief judge, Robert Katzmann, who is widely admired as a thoughtful and scholarly jurist.
      In a footnote, Katzmann noted that six previous presidents, dating back to Jimmy Carter, voluntarily released their tax returns to the public with no evident impact on their performance in office. Katzmann also emphasized that the subpoena seeks business records unconnected to Trump's presidency and thus implicates executive privilege not at all.
      Katzmann took pains to avoid ruling on an ultimate issue in the case: whether the president is subject to criminal indictment at all while in office. "Even assuming, without deciding, that a formal criminal charge against the President carries a stigma too great for the Constitution to tolerate," Katzmann wrote, "we cannot conclude that mere investigation is so debilitating."
      In their arguments, Trump's private counsel and Justice Department lawyers noted the oft-quoted Office of Legal Counsel (OLC) opinion written in the Watergate context in 1973 that the president is not subject to criminal prosecution while in office. Katzmann noted that the OLC opinion and a later DOJ memorandum in 2000 did not address the narrower issue in Trump's case: whether the president could claim immunity from investigation. In any event, Katzmann said that both issues were for courts to decide, not an executive branch agency.
      Trump's private counsel, Jay Sekulow, promptly vowed to take what he called the "constitutionally significant" issue to the Supreme Court. But one leading constitutional law expert, Harvard law professor Laurence Tribe, described the appeals court decision as "unmistakably correct" in an appearance on the cable news channel MSNBC and saw no basis for the Supreme Court to review it.
      Consider, however, these three cases that the Court has already agreed to hear despite factors that ordinarily would leave them on the cutting-room floor:
      Gun rights. The justices will hear arguments in New York State Rifle and Pistol Association, Inc. v. City of New York on Dec. 2 even though the city argues the case is moot after it amended the narrow ordinance at issue. The case gives the Court its first clear shot to expand Second Amendment rights and limit local and state gun safety laws after the 5-4 decision in District of Columbia v. Heller (2008) to bar local laws banning possession of handguns.
      Abortion rights. The Court is likely to hear arguments in February in Louisiana's effort in June Medical Services L.L.C. v. Gee to reinstate an abortion-related law comparable to a Texas law struck down by a 5-3 vote four years ago. The law requires physicians performing abortions to have admitting privileges at a hospital in the area. Anti-abortion forces hope that with two new justices, Neil Gorsuch and Brett Kavanaugh, the Court will depart from its decision in the Texas case and give states more leeway to regulate abortion clinics.
      Presidential power. The Court is also likely to hear arguments in February in a politically charged dispute over the single-director structure of the new Consumer Financial Protection Bureau (CFPB), as upheld so far by two federal appeals courts. The plaintiff in Seila Law LLC v. Consumer Financial Protection Bureau argues that the decision by the Democratic-majority Congress to vest the new agency's power in a single, tenure-protected director instead of a multimember commission unconstitutionally intrudes on presidential power.
      Given these three somewhat improbable cert-grants, it may be treacherous to predict that the Republican-appointed justices, all of them deferential to presidential power in previous cases, will pass up Trump's appeal on the subpoena once filed. So, as Trump is wont to say, "we will see what happens."

Sunday, November 3, 2019

For Ukraine: Cry, the Beleaguered Country

      Forget for a moment the domestic legal and political implications of President Trump's attempt to use U.S. military aid to force Ukraine's newly elected president Volodymyr Zelensky into investigating former vice president Joe Biden. Focus instead on the consequences for Ukraine as the fragile democracy struggles with its own problems: combating corruption at home and fighting a ground war against Russia in its separatist-leaning eastern reaches.
      Ukraine has troubles enough of its own, but democracy is on the ropes in several other European countries, 30 years after the fall of the Berlin Wall. Under President Trump, the United States has been at best indifferent to the challenges to the fledgling democracies or, at worst, even supportive of the rising autocrats, such as Hungary's Viktor Orbán.
       Concerns about Ukraine's well-being and its geopolitical importance in confronting Vladimir Putin's Russia were at the heart of the damning testimony that the National Security Council's top Ukraine expert Alexander Vindman gave last week [Oct. 29] to the House impeachment inquiry. Vindman, a Harvard-trained lieutenant colonel in the U.S. Army, confirmed in his six-page statement that Trump asked Zelensky to open politically charged investigations into Hunter Biden's role in the Ukrainian natural gas company Burisma in exchange for Trump's releasing the held-up delivery of U.S.-made antitank Javelin missiles.
      The Ukrainian-born Vindman, a refugee from the Soviet Union era, told the House committees conducting the impeachment inquiry that Trump's role in the call left him "worried about the implications for the U.S. government's support of Ukraine." An investigation of the Bidens and Burisma, he realized, "would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained."
      Vindman, who was awarded a Purple Heart for wounds suffered from an IED in Iraq, arrived at the Capitol for his closed-door deposition in full military uniform, with four rows of commendation-signifying ribbons plainly visible. He explained to the assembled lawmakers, Democrats and Republicans alike, that he worried that reduced U.S. support for Ukraine "would . . . undermine U.S. national security."
      Zelensky's "landslide" election as president in late April, Vindman explained, was an auspicious sign for Ukraine's political stability on the strength of his winning a majority in every region of the country. Zelensky's party won another landslide victory in parliamentary elections on July 21, prompting what was supposed to be Trump's congratulatory phone call four days later.
      For Trump, the withheld military aid was a bargaining chip to be used in shaking down Zelensky after he had taken office just two months earlier. For Ukrainian soldiers on the front lines, however, Trump's tactic was a psychological jolt that undermined confidence in U.S. support. "It was very unpleasant to hear this," one officer remarked in a story by the New York Times reporter Andrew E. Kramer.
      Trump also used Zelensky's hope for an invitation to the White House as a second inducement to bend the Ukrainian leader to his will. With no promise from Zelensky, the Ukrainian leader was denied a White House visit and given instead the sop of a meeting at the United Nations in New York City in late September. Sitting alongside Trump, Zelensky did the best he could to preserve his dignity and political standing at home by claiming, with lapdog obedience, that he had not felt pressured by Trump's phone call.
      Trump's seeming indifference to Ukraine's precarious political conditions is of a piece with his attitude toward the challenges to the other fledgling democracies that emerged from Soviet domination after 1989. "The Trump administration has moved away from human rights issues," according to Susan Corke, director of the Transatlantic Democracy Working Group at the German Marshall Fund of the United States in Washington. "It's pretty clear that they don't care about internal human rights issues."
      Corke was among a dozen experts at a recent Freedom House event in Washington [October 17] who fretted about the setbacks for democracy in Europe and the Trump administration's indifference. Trump "has no interest in promoting democracy," according to Timothy Garton Ash, a leading commentator on European affairs as a professor of European studies at the University of Oxford.
      The Obama administration was critical of autocratic tendencies in such countries as Hungary and Poland, but Trump decided instead to "warm up relations" with the anti-democrats. Hungary's autocratic Orbán got the White House visit that Zelensky was denied. In the meantime, the administration has failed to spend money that Congress has appropriated to counteract Russia's efforts to disrupt democratization in its former satellite nations.
      Corke calls for providing more funds to civil society groups, including independent media, to strengthen democratic impulses in the former Iron Curtain countries and to speak out against anti-democratic moves. "Where countries are actively flouting their democracy and human rights commitments," she explains, "there have to be repercussions by publicly holding them accountable and diplomatically raising those issues."
      Vindman closed his testimony with a vision of the United States and Ukraine as "strategic partners, working together to realize the shared vision of a stable, prosperous, and democratic Ukraine that is integrated into the Euro-Atlantic community." Trump's vision, sadly, was different, but his shameless shakedown appears to have backfired thanks to the backlash not just from Vindman but from others in the administration shocked to discover that Trump cared more about his political fortunes than Ukraine's.

Sunday, October 27, 2019

Under Trump, Lawlessness and Disorder

      Fifty years ago, Richard Nixon campaigned for the presidency in 1968 with a "law and order" platform that blamed the nationwide crime rates on liberal Supreme Court decisions on criminal law and procedure. The theme may have played a critical role in Nixon's narrow victory and continued to serve Republican candidates well in subsequent campaigns.
      Today, however, Trump has transformed the Grand Old Party into a party of lawlessness and disorder. Trump's lawyers were in a federal courtroom last week [Oct. 23], along with Justice Department lawyers, arguing that Trump is so far above the law that he cannot even be investigated much less prosecuted for run-of-the-mill criminal offenses.
      One day earlier, Trump had met at the White House with some of his Republican supporters in the House of Representatives to bless a plan to disrupt the ongoing impeachment inquiry being conducted by three Democratic-led House committees. Rep. Matt Gaetz, the Florida Republican and leader of the group, effectively delayed the inquiry for five hours by leading two dozen or so rule-breaking members into the secure, underground facility where the committees, with members from both parties, were to hear testimony from the next administration official called as a witness in the proceeding.
      Trump's lawyers were arguing before the federal appeals court in New York City to quash a subpoena issued by the Manhattan district attorney, Cyrus Vance Jr., for Trump's personal and corporate tax returns as part of a tax-related investigation by the state prosecutor's office. The three-judge panel in the case, Trump v. Vance, appeared to be taken aback by the extraconstitutional audacity of the argument.
      Inevitably, the arguments recalled Trump's campaign-time boast that he could shoot someone on New York's Fifth Avenue without losing a single vote from his supporters. Judge Denny Chin posed the hypothetical to Trump's lawyer, William Consovoy, to ask whether local authorities would be helpless to investigate. "Nothing could be done?" Chin asked, incredulously. "That's your position."
      Consovoy, a go-to Washington lawyer for conservative and Republican causes, stuck to the position, according to the New York Times' account. "That is correct," he said, repeating himself for emphasis. "That is correct."
      Trump's position contradicts the Supreme Court's 1974 unanimous decision in United States v. Nixon that ordered Nixon to turn over the White House tapes in a criminal proceeding in the face of a more carefully framed assertion of presidential privilege. It also contradicts the Court's decision in Clinton v. Jones (1997) that Clinton was subject to subpoena in a private civil lawsuit, a proceeding with much less public import than a criminal investigation.
      Trump's position also goes beyond the protections afforded to heads of government in other Western-style democracies. As one example, the Israeli prime minister Benjamin Netanyahu is currently facing possible indictment in a two-year long investigation for possible fraud, bribery, and breach of trust. The Israeli attorney general announced plans in February to bring indictments, but Netanyahu tried to derail the charges in a pretrial hearing earlier this month [Oct.2].
      Meanwhile, the House Republicans led by the Fox News regular Gaetz were making another argument unsupported by anything in the text or spirit of the Constitution. Gaetz, who represents part of Florida's Alabama-like western panhandle, has been one of the leading critics of the preliminary depositions that the three House committees are taking in closed-door meetings to prepare for public hearings on Trump's now all but certain impeachment.
      The closed-door evidence gathering follows the pattern that the House's Republican leadership used in the Clinton impeachment. Some of the cable news channels dramatized the Republicans' hypocrisy by digging up footage from then-Rep. Lindsey Graham, one of the House's impeachment managers, and contrasting it with Graham's denunciation of the same procedure now as a Trump-supporting Republican senator from South Carolina.
      Gaetz led some 40 House Republicans into the subterranean House room officially designated as "Sensitive Compartmented Information Facility" or SCIF that the Intelligence Committee uses to safeguard classified materials. The committee rules prohibit cell phones in the facility, but Gaetz carried his with him and sent boastful tweets from inside.
      Some of those who massed with Gaetz outside the closed doors were in fact members of one or the other of the committees in the inquiry and thus had no need to barge in. Given the blatant hypocrisy, it was easy for some Congress watchers to sneer at a political stunt stage managed for maximum effect on TV newscasts.
      However farcical, the episode was worse than a stunt, as Richard Primus, a law professor at the University of Michigan, noted in a long thread on Twitter. Primus described the demonstration as "an attempt by members of Congress to use physical disorder to block the work of Congress. That's terrifying. And completely inappropriate. Constitutional government can't function that way."
      Trump and his supporters, however, have little regard for constitutional niceties. Thus, Trump scoffed last week at what he called the "phony" Emoluments Clause, the constitutional provision that he has openly violated since his first day in office. And Trump, let it be remembered, once proclaimed that the Constitution's Article II gives him the power to do whatever he wants — separation of powers notwithstanding.
      Law and order are no help, but hindrance, as Trump's political and legal situation worsens, according to Primus. "As things come to look worse for Trump, he and his supporters will resort to increasingly desperate/destructive tactics," he tweeted. "That’s how institutions collapse."