Sunday, January 19, 2020

Roberts' Role in Impeachment Trial Debated

      Chief Justice William Rehnquist had a famous quip to explain his hands-off role in presiding over President Clinton's Senate impeachment trial in January 1999. "I did nothing in particular," Rehnquist remarked after leaving the Senate chamber for the last time, "and I did it very well."
      In advance of President Trump's impeachment trial, most Supreme Court watchers were expecting Chief Justice John Roberts, Rehnquist's former law clerk decades earlier, to follow Rehnquist's lead in minimizing his constitutionally assigned role to preside over a presidential impeachment trial.
      With the Senate trial about to begin, however, two leading figures from the legal left publicly called for Roberts to take a more active role by supporting Senate Democrats' efforts to call witnesses once the trial gets underway. For their part, Senate Republicans are flatly rejecting the Democrats' insistence on the need for witnesses in Trump's impeachment trial.
      Democrats have logic and precedent on their side. "I don't know how you have a trial if you don't have witnesses," Minnesota's Democratic senator Amy Klobuchar, herself a former prosecutor, remarked on MSNBC last week [Jan. 14]. In fact, witnesses testified in the two previous presidential impeachment trials — Andrew Johnson's in 1868 and Clinton's in 1999 — and witnesses were called in the 15 Senate impeachment trials through history that resulted in convictions and removals of federal judges.
      Working hand-in-glove with the White House by his own admission, the Senate's Republican leader, Mitch McConnell, has ruled out any need for additional witnesses by blaming House Democrats for an incomplete job of gathering evidence before voting the articles of impeachment against Trump. 
      The partisan divide on the issue creates a dilemma for Roberts in his presumed goal of steering clear of politics or limiting himself to the minimalist role for judges that he described his Senate confirmation hearing in 2005. Back then, Roberts likened judges to baseball umpires, their role limited to calling balls and strikes according to an agreed-upon strike zone.
      In this trial, however, the opposing sides flatly disagree on the underlying rules: Roberts may be forced to choose one side or the other. In an op-ed written for The Washington Post [Jan. 15], Caroline Frederickson, former president of the progressive American Constitution Society, suggested that Roberts' stated ideals called for him to take "a more assertive role" at the trial.
      "Now more than ever," Frederickson wrote, "Roberts must live up to his own vision of dispensing justice by ruling to admit evidence that will advance the goal of seeking the truth." Roberts, she went on to argue, should simply follow well established judicial standards for determining any claims of privilege by Trump's legal team or weighing the relevance of proposed testimony sought by Democratic senators.
      Anticipating Frederickson's position, the nationally prominent Harvard law professor Laurence Tribe predicted in an appearance on MSNBC [Jan. 14] that Roberts, his one-time student at Harvard, in fact would use his power, if asked, to issue subpoenas for witnesses sought by Democrats. "I would hope," Tribe remarked, "that his inclination would be to seek the truth."
      A leading impeachment expert appeared to dash Tribe's and Frederickson's hopes at week's end, however, with an op-ed in The Washington Post that envisions the Senate itself, not the chief justice, as the rule-making authority for the trial. "The Senate’s rules and history make clear the Senate makes all important decisions in the trial," according to Michael Gerhardt, a law professor at the University of North Carolina and author of Impeachment: What Everyone Needs to Know.
      Gerhardt acknowledged that Chief Justice Salmon Chase played a more active role in presiding over Johnson's trial, but he noted that the Senate stopped just short of stripping Chase of any decision-making role and later overruled him on two of his evidentiary rulings. Rehnquist was "a model of restraint" in Clinton's trial, Gerhardt added by contrast, and "was never overruled--because he rarely ruled."
      "Temperamentally, Roberts is likely to follow the example of Rehnquist," Gerhardt predicted by recalling Roberts' famous balls-and-strikes analogy. "That does not sound like someone planning to become the center of attention in Trump's trial," Gerhardt concluded.
      Roberts made his first appearance at the trial by taking his own oath of office on Tuesday [Jan. 14] from the Senate's president pro tem, Iowa's Charles Grassley, and then administering the same oath to do "impartial justice" for all 100 senators. The ceremonial opening followed the presentation of the two articles of impeachment against Trump by the seven designated House managers, brought in the name of "the people of the United States and the House of Representatives."
      The 10-minute recitation of the charges by the House's Intelligence Committee chairman Adam Schiff provided a valuable reminder, for anyone willing to listen, that this is more than a partisan food-fight. The impeachment trial is a veritable constitutional crisis brought about by Trump's brazen effort to enlist a foreign government's help to influence the 2020 election to his advantage.
      Trump's scheme, Schiff intoned, "ignored and injured the interests of the nation." In the words of the first article, Trump "abused the powers of the presidency . . . to obtain an improper personal benefit." Compounding the abuse, Trump engaged in "an unprecedented defiance of congressional subpoenas," according to the second article. Impartial justice demands that those accusations be seriously considered, but Republican senators have yet to indicate that they will take their oaths seriously. Even in a limited role, Roberts can at least remind senators of that oath as the trial proceeds.

Sunday, January 12, 2020

Electoral College: Reform or Chaos?

      The electoral college system for electing the president and vice president of the United States would not be adopted today if put up to a public vote. Public opinion polls dating from the 1960s have registered majority support for amending the Constitution to elect the president by direct popular vote instead of by the indirect electoral system that Hamilton and the other Founders created because they distrusted popular democracy.
      The goal of reforming or replacing the electoral college still lies in the distance. Two reform proposals currently under consideration include the so-called interstate popular vote compact; under this plan, signatory states would agree to cast electoral votes for the nationwide popular vote winner regardless of the vote in their individual states.
      A second proposal, advocated by among others Harvard law professor Lawrence Lessig, would replace the current winner-take-all allocation of electoral votes with a system of awarding electoral votes proportionally based on the popular vote in the state. Under that system, Hillary Clinton would have won five of Wisconsin's 10 electoral votes in 2016; Donald Trump would have won 16 of California's 55 electoral votes on the basis of winning 31 percent of the state's popular vote.
      Lessig argues, in part, that proportional allocation of electoral votes would mean that every vote counts: Republicans in Massachusetts and other blue states; Democrats in Tennessee and other red states. He also argues that the reform would make it less likely that the popular vote loser wins the presidency, as has happened in two of the last five presidential elections: George Bush in 2000, Trump in 2016.,
      One or the other of these changes, maybe even direct popular election, might be hastened by two pending cases at the Supreme Court that threaten to turn the current system into constitutional anarchy. Faithless electors from two states, Colorado and Washington, are hoping the Court will rule that states have no power to penalize them for voting contrary to their pledges to vote according to the popular vote in their states.
      Lessig is representing the faithless electors in the two cases, Chiafalo v. Washington and Colorado Department of State v. Baca: four Democratic electors in Washington, three of whom were fined $1,000 for casting their votes for Republican Colin Powell; and a Democratic elector in Colorado, whose vote for Republican John Kasich was nullified. The justices considered the cases at their conference on Friday [Jan. 10] and, if they grant review, could schedule briefing and oral arguments in time for a decision by the end of the term in late June.
      Lessig was trying to organize a sufficient number of what he called "Hamilton electors" to deny Trump the electoral college majority he appeared to have won on Election Night. Lessign believed that some Republican electors might defect if Democratic electors cast their ballots not for Clinton but for some Republican alternative to Trump. The effort bore some fruit: two Republican electors in Texas voted for Kasich and Powell, reducing Trump's actual count to 304 from his election night total of 306; Clinton's count was reduced to 227 from 232.
      Faithless electors have been part of the system at least since 1800. Federalist electors who refused to vote for John Adams' running mate threw the vice presidency to Adams' political rival, Thomas Jefferson. Through history, at least 179 faithless electors have voted contrary to their stated pledges, but never since with any actual impact on an election.
      Most of the defecting electors were making political statements: for example, the Washington elector who voted for Ronald Reagan in 1976 instead of the actual Republican nominee, President Gerald Ford. Washington passed its law penalizing faithless electors the next year. Other faithless electors cast purely symbolic votes, like the Democratic elector from the District of Columbia who withheld her vote from Al Gore in 2000 to protest what she called the District's "colonial status."
      At the Supreme Court, attorneys for the two states argue that presidential electors can be required to cast their votes as pledged and penalized for not complying with state law. But Lessig argues, in effect, that presidential electors have a constitutional office beyond a state's control.
      In an extreme case, broad discretion for presidential electors could transform the post-Election Night transition period into bare-knuckle political combat until the electors' votes are opened in Washington in January. Imagine, for example, what might have happened if Gore had concentrated in 2000 not on getting a recount in Florida but on shaking loose four Republican electors from Bush's apparent total.
      The 2020 presidential election between Trump and the eventual Democratic nominee could be that close. With the election still a year away, one political handicapper drew a completely plausible Election Night map with electoral votes tied dead-even at 269 apiece. In that hypothetical outcome, one faithless presidential elector could decide who wins the presidency.   
      In their briefs, Colorado and Washington argue that the faithless electors' real aims are to abolish the electoral college system. Lessig, through a self-styled organization Equal Citizens, argues to reform rather than replace. He goes so far as to argue that the Supreme Court could declare the "winner take all" allocation of electoral votes as unconstitutional under the Equal Protection Clause's mandate to treat all votes equally.

Sunday, January 5, 2020

Roberts Naive, Clueless in Combating Political, Social Ills

      Chief Justice John Roberts apparently thinks that federal courts can help counteract the disinformation and dystopia that spreads virally on the Internet these days. Bless his heart, as they might say with bemused condescension back where I come from.
      Roberts' heart may be in the right place, but his head is up in the clouds. He has been well ensconced at the top of the judicial monastery for 16 years now and in the rarefied world of Supreme Court advocacy for 15 years before that. He seems to have no idea of the hard work that would be required from federal courts to counteract what he calls the "rumor and false information" spread by social media "on a grand scale."
report on the state of the federal judiciary, Roberts praises federal courts' increased attention to civic education. He cited as a prime example the decade-plus that the retired justice Sandra Day O'Connor devoted to civic education after leaving the Court in 2005. As other examples, he noted that the Federal Judicial Center has prepared online and in-print materials to help educate judges and the public about our constitutional system and that several federal circuits now have civic education forums at their courthouses.
      Roberts notes all these worthy endeavors as he laments the unhealthy role that social media play in 21st century America. "In our age," Roberts writes, "when social media can instantly spread rumor and false information on a grand scale, the public's need to understand our government, and the protections it provides, is ever more vital."
      True enough, but Roberts also opines, without substantiation, that in the years since the founding, "we have come to take democracy for granted, and civic education has fallen by the wayside." This drive-by slur on the American public is a bit much coming from a Supreme Court justice who led the Court in legally dubious decisions that struck down two important federal laws aimed at strengthening democracy by safeguarding voting rights and by limiting the influence of money in politics.
      In both of those decisions, Roberts showed that he was both naive and clueless about the realities of politics in present-day America. He led a 5-4 conservative majority in Shelby County v. Holder (2013) in striking down the most effective enforcement tool in the federal Voting Rights Act after concluding, contrary to Congress, that racial discrimination in voting practices was a thing of the past.
      Congress had repeatedly re-enacted the law along with the so-called preclearance provision that required states and local jurisdictions with a history of discrimination in voting to get federal approval before making any changes in election and voting procedures. Roberts concluded that Congress should have revised the formula used in extending the preclearance requirement based on updated voting statistics. The decision nullified the preclearance requirement and gave states the opening that several took to change voting procedures in ways that made it harder for minority voters to cast ballots.
      A year later, Roberts led the same conservative majority in the 5-4 decision in McCutcheon v. Federal Election Commission (2014) to strike down the aggregate cap on campaign contributions to congressional candidates. That provision, enacted as part of the post-Watergate Federal Election Campaign Amendments of 1974 and later re-enacted, established an overall limit of $46,000 as of 2011-12 on contributions by an individual to congressional candidates even if contributions to individual candidates were within the $2,500 limit.
      Defending the law, the Obama administration and various campaign finance groups argued that the limit on piling up within-the-limit contributions served the legitimate purpose of preventing corruption or the appearance of corruption. Roberts saw no danger and rejected the argument with a nonsensical retort. "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse," he wrote.
      Needless to say, Roberts did not acknowledge these decisions in his lament about taking democracy for granted, nor did he address important issues of Supreme Court ethics and transparency. He said nothing about the calls from Supreme Court reformers such as Fix the Court to require justices to comply with the same Code of Judicial Conduct that federal judges from magistrates to circuit court judges have to follow.
      All the while touting the importance of public visibility, Roberts had nothing to say about cameras in the Supreme Court courtroom or same-day posting of audio recordings of oral arguments. And, as to ethics issues, he had nothing to say about the decision by two justices, Alito and Kavanaugh, to meet and appear in a photograph with the leaders of an anti-gay group that had filed an amicus brief in the important LGBT rights cases pending at the Court since October.
      As for counteracting rumor and false information, this journalist dares to imagine that Roberts might have made a real contribution by putting in a word or two for the free press. He might have highlighted the importance of the free press in holding public officials at every level of government accountable  from the president down to mayors and city councilors in every city, town, and village in the country. He might have said that baseless attacks on "fake news" undermine the press and give aid and comfort to the groups and individuals spreading false information. Instead, what we got to borrow a phrase from the Carter era was "more mush from the wimp."

Sunday, December 29, 2019

Trump Remaking Federal Bench in His Own Image

      President Trump rubbed Chief Justice Roberts the wrong way late last year by blaming what was then the most recent of the president's setbacks in federal courts on a well regarded jurist that he labeled as "an Obama judge." Roberts responded by putting in not merely a word, but an entire paragraph, in defense of the federal judiciary.
       “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a written statement issued by the Court's public information office just before Thanksgiving. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
       Roberts is likely to extol the virtues of an ostensibly nonpartisan federal judiciary again this week when he releases his annual report on the state of the federal judiciary on Tuesday [Dec. 31].  But Roberts is likely to ignore the elephant in the room: Trump's overt politicization of the federal judiciary with a record-setting number of confirmed federal judges after three years in office, many of them without a shred of bipartisan support.
       In New York, the state's Democratic governor, Andrew Cuomo, cited the reality of Trump's judicial appointments rather than Roberts' idealized image when he vetoed a seemingly uncontroversial bill to allow federal judges to officiate weddings in the Empire State. " I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration,” Cuomo said in a veto message issued Dec. 27.
      In effect, Cuomo signaled his view that the handful of judges Trump has named to the federal bench in New York have ruined the good name for the others. “President Trump does not embody who we are as New Yorkers," Cuomo said in the veto message. "The cornerstones that built our great state are diversity, tolerance, and inclusion.”
       In fact, Trump's judicial appointments openly flout diversity, tolerance, and inclusion as goals, according to a study by the gay rights organization, Lambda Legal.  Out of 50 judges named to federal courts of appeals through fall 2019, white males comprise the overwhelming majority: 40 men and 10 women; 42 white judges, seven Asians, one Latinx, and no one of African American ancestry.
      With a Senate calendar driven by the hyperpartisan majority leader, Mitch McConnell, Trump has won confirmation for more circuit court judges in three years than any of the previous five presidents in their first three years in office: 25 for Obama, 30 for Bush43, 28 for Clinton, 31 for Bush41, and 23 for Reagan. Trump has almost equaled in just three years Obama's total of 55 for eight years: a number reduced by McConnell's refusal to act on Obama's nominations in the Democrat's final two years in the White House.
       Trump's record also has this distinction: the confirmed circuit court judges include three who were rated "not qualified" by the American Bar Association: Steven Grasz  and Jonathan Kobes for the Eighth Circuit and Lawrence Van Dyke for the Ninth Circuit. They are the first nominees deemed unqualified by the ABA to win confirmation to federal circuit courts in more than 30 years, according to the study. All three won Senate confirmation on party-line votes after strong opposition from traditional civil rights groups.
       Among Trump's 50 circuit court judges, 43 were or are members of the conservative-libertarian Federalist Society, according to Lambda Legal's compilation. No ideological interest group has ever enjoyed similar success in getting its members named to federal judgeships, not the progressive American Constitution Society under Obama and not the American Civil Liberties Union under any president.
       Given its mission, Lambda Legal naturally stressed the anti-LGBT records of many Trump judges: by its count, more than one-third of Trump's circuit court appointees. Van Dyke, for one, espoused the unproven claim that marriage equality for gays and lesbians harms children and society. Steven Menashi, confirmed for one of the New York seats on the Second Circuit, "denigrated" the Supreme Court's marriage equality ruling, according to Lambda Legal, and supported banning gays and lesbians from the military. Eric Murphy, a former Ohio state's attorney confirmed for the Sixth Circuit, argued against marriage equality in the case that reached the Supreme Court as Obergefell v. Hodges. Unmentioned in the report are the several Trump nominees who could not bring themselves to endorse the Supreme Court's landmark ruling in Brown v. Board of Education to outlaw racial segregation in public schools.
      The report also underscores the overall impact of Trump's appointments on the federal courts immediately below the Supreme Court. On eight of the 12 geographically-based circuit courts, Trump judges comprise at least one-fourth of the active membership —  all but the First, Fourth, Tenth, and D.C. circuits. In all, Republican-appointed judges comprise a majority in seven of the twelve.
      McConnell has enabled Trump's transformation of the federal judiciary, the study notes, by discarding procedural safeguards aimed at promoting a measure of bipartisanship in appointments to the federal bench. In addition to the 50 judges confirmed for federal courts of appeals —  more than one-fourth of the total number —  the Senate has confirmed 133 Trump nominees to federal district court, including 80 in 2019. With federal courts one of the few institutions willing and able to stand up to Trump, the stakes are high in his remaining year in office and even higher in a potential second term.

Sunday, December 22, 2019

For "Partisan" Impeachment, Republicans to Blame

       From start to the likely end, the present-day Republicans in Congress have flatly refused to take as serious the impeachment of President Donald Trump for "high crimes and misdemeanors." Instead, to a man and woman, every Republican in Congress is treating this true constitutional crisis as another political wrestling match, with nothing more at stake than one more year of Trump's presidency or the next election.
      Republicans simply deny Trump's proven guilt: his abuse of office by inviting a foreign government's interference in the 2020 election and his obstruction of Congress by refusing to provide information and instructing his aides to refuse to testify.
       To be sure, the three previous presidential impeachments — Andrew Johnson, Richard Nixon, and Bill Clinton — were each partisan in their origins and partisan in the political stakes for both parties. Yet the Nixon impeachment, left incomplete with his resignation, and Clinton's, with its eventual acquittal, both included faint traces of bipartisanship as seen in party line-crossing votes by a handful of House Republicans in 1974 and a few House Democrats in 1998.
      In the Nixon case, newly uncovered information shows that House Republican leaders were seriously considering the possible need to force Nixon from office as early as January 1974. In an article for The Atlantic, presidential historian Tim Naftali details information newly released from diaries of a key House Republican of the Nixon era, New York's Barber Conable.
      Naftali recalls that in the wake of Nixon's "Saturday Night Massacre" in October 1973, House Republicans joined with the Democratic majority in supporting an impeachment inquiry and, in contrast to the Trump-era Republicans, made no effort to thwart or stymie the inquiry. The vote to open the inquiry on February 6, 1974, was not merely bipartisan but, at 410-4, just short of unanimous.
      Conable's diary entries include his description of an overture from the House Republican leader, Arizona's John Rhodes, asking whether Conable,  then the fourth-ranking House GOP leader, would be open to demanding Nixon's resignation if the evidence warranted such a drastic step. Conable recalled in his diary that he agreed to Rhodes' request. “I said to him,” Conable wrote in the diary,  “that if he was asking me if I would be willing to stand up and be counted among those who would go to the President and demand such a resignation, that he could count on me.”
       When the House Judiciary Committee eventually drafted articles of impeachment against Nixon, several House Republicans in fact put constitutional law-and-order ahead of partisanship. Six Republicans voted on July 27, 1974, in favor of Article I (obstruction of justice), seven in favor of Article II two days later, (abuse of power), and two in favor of Article III on July 30 (contempt of Congress).
       Even earlier, the Senate's Republican leader, Pennsylvania's Hugh Scott, had turned on Nixon after realizing that Nixon had duped him by sharing a heavily edited transcript of Nixon's damning conversation with his principal accuser, the former White House counsel John Dean. Today, no Republican in Congress has been heard to object to Trump's analogous effort to protect himself by squirreling away the full transcript of his July 25 telephone call with the Ukrainian president, Volodymyr Zelensky.
       With the full extent of Nixon's criminality finally disclosed, Scott, Rhodes, and Arizona's Barry Goldwater went to the White House to tell Nixon directly that he faced certain impeachment in the House and certain conviction in an eventual Senate trial. Nixon, in an act of self-sacrifice unimaginable from Trump, decided on the night of Aug. 8 to resign and spare the country further turmoil. He even expressed a measure of contrition — a step also unimaginable from Trump.
       With the House under GOP control a quarter century later, congressional Democrats took Clinton's conduct seriously enough for 31 Democratic representatives to join in the House's 258-176 vote on Oct. 8, 1998, to initiate an impeachment inquiry. In the House Judiciary Committee two months later, five Democrats voted for three of the four articles of impeachment against Clinton. In the present-day impeachment, however, no Republican voted in favor of initiating the impeachment inquiry against Trump or in favor of impeachment in the Judiciary Committee or on the House floor.
      T he Senate's two party leaders at the time of the Clinton impeachment, Mississippi's Trent Lott for the Republicans and South Dakota's Tom Daschle for the Democrats, worked collegially and cooperatively to develop agreed-to rules for the Senate trials. By contrast, the present-day Senate Republican leader, Kentucky's Mitch McConnell, is spurning any and all suggestions from his Democratic counterpart, New York's Chuck Schumer.
       McConnell goes even further in raw partisanship by disclaiming any pretense of impartiality even though the oath he must take in an eventual Senate trial requires a promise to "do impartial justice according to the Constitution and laws, so help me God." By week's end, the course of future events was uncertain as the Democrats' speaker of the House, California's Nancy Pelosi, was delaying the formal submission of the articles of impeachment to the Senate while pressuring McConnell, with no luck so far, to call witnesses for the Senate trial, as was done in the Clinton impeachment.
       A lone voice for constitutional principle over partisanship emerged by week's end, however, in the form of an op-ed by Arizona's former Republican senator, Jeff Flake, urging his former colleagues to stop echoing the House Republicans in wrongly claiming that Trump has done nothing wrong. "If there ever was a time to put country over party, it is now," Flake wrote in the  article, published in The Washington Post [Dec. 20]. As Trump is wont to say, "We'll see what happens."

Sunday, December 15, 2019

As Attorney General, Barr Is Trump's Roy Cohn

      President Trump has been obsessed for the past three years by the belief that the FBI tried to sabotage his 2016 presidential campaign by opening an investigation of the campaign's links to Russian operatives. Now, the Justice Department's inspector general has published a massive, 448-page report [Dec. 9] that absolved the FBI of any political bias in opening the investigation and thoroughly debunked Trump's continued insistence that the FBI was out to get him.
       Political motives were in plain view, however, when Attorney General William Barr reacted to the inspector general's report not by embracing the refutation of Trump's narrative but by emphasizing the now documented errors that FBI agents and officials made in the eventual course of the investigation.
       Barr, appointed by President Trump after his first attorney general, Jeff Sessions, refused to do his bidding, is continuing in his comments to play the role of Trump's protector-in-chief at Main Justice. Barr, it will be recalled, responded to the Mueller Report on the Russia investigation first by withholding it and then by claiming, wrongly, that it exonerated Trump. Now, Barr is trashing the Russia investigation even though the thorough review shows that the FBI had sufficient grounds to open the investigation and did so without political bias or motive.
       Admittedly, the inspector general, Michael Horowitz, told a Senate committee last week in a prepared statement that the investigation did not amount to "vindication" for the FBI in conducting the investigation officially dubbed "Operation Crossfire Hurricane." And James Comey, the FBI director at the time who was later fired by Trump to try to thwart the Russia investigation, acknowledged his responsibility for the mistakes in an appearance on Fox News on Sunday [Dec. 15]. "I was wrong," Comey told the Fox anchor Chris Wallace.
      The 17 major errors cited in the report included confirmation of one of Trump's major talking points: misplaced reliance on inaccurate or unsupported assertions in the report on Trump prepared by the British intelligence agent Christopher Steele. The IG's report found that unsubstantiated representations from the so-called Steele Dossier were cited in three of the applications to the Foreign Intelligence Surveillance Act (FISA) Court for warrants to wiretap the one-time Trump foreign policy adviser Carter Page.
      Barr went much further than errors such as those, however, in criticizing the FBI investigation in contradiction to the IG report's finding that the launch of the investigation was proper and untainted by "political bias or improper motivation." In FBI-speak, the report found that FBI agents and the various signing-off supervisors had sufficient "predictation" for opening the investigation.
      Specifically, the report relates, the investigation stemmed from a report by an intelligence agency from a Friendly Foreign Government (FFG) — Australia, but unnamed in the report — reporting on communications between Page and Russian operatives. The report contradicts one of the Trump talking points — specifically, that Page was planted into the Trump campaign as part of a politically motivated political sting.
      In blatant disregard of actual facts, Barr responded to the report by saying, among other things, that the FBI "launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions . . . ." Contrary to the FISA court's decisions, Barr contended that those suspicions were "insufficient to justify the steps taken."
      Barr went on to describe the investigation as consisting of "spying" on the Trump campaign. In FBI-speak, "spying" would consist of placing a confidential informant inside a suspect organization; the term would not be used to describe court-authorized electronic surveillance, as occurred in Crossfire Hurricane. In a further rant, Barr contended that the country was "turned on its head for three years" because of the Russia investigation — in apparent preference for no investigation of Russian interference in the 2016 election.
      For Barr, his good deeds for the president did not go unpunished. Instead, Barr himself became the main story by week's end as critics emerged to contend that he had politicized the department in blatant disregard of its traditional if idealized independence from the White House. Among the critics was one of Barr's predecessors: Eric Holder, who served for eight years as President Obama's attorney general.
      In an op-ed article written for The Washington Post, Holder contended forthrightly that Holder was "unfit" to continue as attorney general. Barr's most recent remarks, Holder argued, continued "a series of public statements and . . .  actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official that they demand a response from someone who held the same office."
      Others with lesser credentials made similar complaints. On MSNBC, Chuck Rosenberg, a former FBI official, called Barr's description of the IG report "absolutely false." Rosenberg said he was "disheartened" and "mystified" by Barr's statements. Appearing on the same newscast, John Heilemann, the veteran Washington political journalist, called Barr "a relentless political hack and a thug."
      Some on the political and legal left have gone so far as to suggest that Barr deserves to be impeached and removed from office. The Republican-majority Senate that confirmed Barr by a near party-line vote of 54-45 would never convict Barr even if the Democratic-majority House wanted to spend the time and political capital on impeaching him.
      Thus, Barr depends for office solely on the president, whose political bidding he gladly obliges. For Trump, it appears that his quoted wish has been fulfilled: "Where's my Roy Cohn?"

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.