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.