Monday, May 27, 2019

Why should a liberal waive the Stars and Stripes?

 As long as I remember and wherever I lived, I have always had an American flag proudly hanging in front of my house on Memorial Day.  What? Me, a professed liberal?  So divided are we as a nation, that we assume that anyone who shows their colors must be a right-wing, hyper-patriot who considers themselves the only true patriots; their country right or wrong.  Yes,  it is for the country and its form of government, the republic for which the flag stands,  to which I pledge allegiance, but I do not swear allegiance to the individual occupying a high office. I reserve my Constitutionally given right to support or to criticize and object, especially if I fear those leaders are undermining the very reasons for which our country was founded.

 I am of the silent generation, a child during  World War II,  shaped by the Cold War,  a student in Berlin before the Wall, married to a refugee from a Communist country ruled by a dictator (Yugoslavia), and I remember once upon a time when all saluted the flag. That was before Viet Nam when many were disillusioned with lies and miscalculations of those who were in the White House. It became unfashionable for many who considered themselves ideologically to the left to display our flag. Patriotism was not the solely owned symbol of a certain ideology before Viet Nam and it should not be now. What I am saluting by raising my flag are those who died to keep our democracy free, an uncle after whom I am named, who fought for America in three wars and lies in Ft. Hood's cemetery and for others like him.

 Being a first-hand witness of the alternatives to American democracy, my concept of freedom is about those freedoms protected in our Constitution and a government established by those who did not want us to be governed ever again by a king, an autocrat, or a dictator.  We are a  country with a bill of rights amended to the Constitution and a structure of government to give those who did want ever again to be governed by a king a method and a voice to keep any wannabe autocrat checked, balanced, and subject to the same rule of law as those governed.

It was not by accident my college major was political science. I have been actively engaged in politics my whole adult life, and I have never been silent. Civics to me was not a boring subject; it affected my life in concrete ways, as it still does.  It is not by accident I write from a viewpoint that honors and respects what commentators and scientists call a liberal democracy because of its protections of civil rights and free speech that permit the people to have a say in its governance.  It is also not by accident that I treasure and exercise the right of a journalist who may differ with the president to be published in media, free of retaliation and retribution from an imperial executive who calls the press "the enemy of the people".  It is not by accident that I object to a president who summons and benefits from an adversary of our country to help him win an election and then ignores, denies, and lies about it as he admires and embraces the foreign policy of that same foreign power. We did not fight World War II and the Cold War to become some other country's satellite.  So I am showing the colors today because I am a liberal, not in spite of it.

Footnote: My uncle was Col. Felix Halstead, US Army, who fought in the Spanish American War, First World War, and World War II.  Felicia is the feminine form of Felix

Saturday, May 25, 2019

Impeachment: are we there yet?

Here is why Pelosi is putting the brakes on impeachment. From the article:

"As the drumbeat for impeachment grows within her caucus, she can argue that what they’re doing is already working. Trump clearly doesn’t know how to respond to the barrage of Democratic investigations; they’re winning in the courts and he’s throwing fits. So why bother with impeachment, especially when Democrats know that a GOP-run Senate isn’t going to remove him from office?"

Updated: June 1 2019
 Per 900 bipartisan prosecuting attorneys, there was plenty of probable cause for criminal charging obstruction of justice...except as Mueller said, DOJ rules precluded going the criminal route and he referred the matter to Congress. However, much of Trump's wrongdoing may have been aiding and abetting Russian interference in the election..not a crime but certainly, a possible article of impeachment since Congress can define whatever that is. However, I am inclined not to proceed with impeachment inquiries so long as the courts uphold the subpoenas for Mueller and McGahn are upheld.

Updated June 2, 2019: Two arguments against impeachment from the right are indeed worthy of a response. Here was mine. "One was what is the big deal of obstruction of justice, which Mueller addressed as being fundamental for law enforcement to be able to investigate and prosecute, and the other is, so what was so wrong about Russians interfering in our elections.both obstruction of justice was the main article of impeachment against Nixon and it was another article against Clinton. It is in the federal criminal statutes. The definition of conspiracy is a narrow one requiring the parties to get together and plan and plot together. To convict takes proof of intent and the proof has to be beyond a reasonable doubt. There is no term or word of collusion in the federal criminal statutes, and Mueller did not investigate that That Trump and his campaign staff did aid, abet, permit, and encourage is not disputed by the Mueller report. He identified Well over 100 contacts with Russian officials and GRU and friends of Putin, "Russia if you are listening, find the emails", a sharing of secret polling data with the Russians, 3 secret meetings with Putin, a foreign policy that support's Russian national interests are not in American interests. If it is OK with you that the Russian propaganda machine was widespread and actively involved hurting Clinton so Trump would be elected, it is not OK with me..nor should it be even if it helps your guy get elected.. ..Elections should be determined by Americans, not by Russian psychological warfare nor by being able to get into voting machines to 1) change the outcome and 2) destroy American confidence in the accuracy of the vote. The latter. Russians have demonstrated their capability, though they have not executed actually changing voter outcome in 2016."

Continuing with the original message:

There are two reasons for putting on the brakes on impeachment: while Democrats are chomping at the bits to impeach, the rest of the country is not: A recent poll, Harvard/Harris found 60% of the country opposes it and the group Democrats need to win in 2020 are the swing voters, who opposed impeachment.  The other reason: what is the purpose of impeachment? It certainly is not to remove the president from office since it requires 2/3 of the Senate to do that. If the purpose is to damage the president enough to pave the way for his defeat in 2020, impeachment may not be the only way to do it. If the purpose is to dramatize the Mueller report to those who have been confused by the distortions put out by AG Barr, and who have not read the report themselves, then if at least Mueller or Don McGahn can testify publicly and the bank records and tax returns can be exposed, then public opinion may swing the Democrat's way.  Mueller has agreed to testify but only in private. That is better than nothing if the transcripts are released, but it is not nearly good enough to hit the voters in the eye. Compelling former White House counsel Don McGahn to testify is in the courts.  It appears that one way or the other, courts will support the House getting Trump's tax returns and they are already compelling Trump's banking and accounting firms to provide information.   

Here are the questions and demands the House committees should put to witnesses bluntly.
To McGahn: repeat what was in the Mueller report about your witnessing Trump obstructing justice. Was what Mueller reported correct?

To Mueller: Did you or did you not exonerate Trump of obstruction of justice? Why did you come to that conclusion?  Caution flag:: even then, obstruction of justice may not be the factor that moves voters, even though it was the main article of impeachment against Nixon.  It is a difficult legal concept for voters to grasp and there may not be a smoking gun as there was in the Nixon tapes.  
To Mueller: did you investigate "collusion"? Is collusion a crime?  What is the difference between "conspiracy" and "collusion"; Why did you exonerate Trump of conspiracy. Did you exonerate him of "collusion".. Caution flag:  Even this distinction seems like a nitpicking technical issue, one of semantics, to voters.  It assumes they understand the criminal code, burden of proof, and the fine points of determining intent needed to convict someone of a crime. 
Here is where the Democrats may be on to something:  Trump's financial records and potential financial crimes were not included in the Mueller report.  The House committees may uncover some damning information.  How to frame this is the challenge, but Trump's attempt to stonewall these findings are some indication of the guilt of something he knows and we do not. Pelosi was brilliant in bringing the phrase of "coverup" to public attention since it implies Trump has committed a crime and he does not want voters to know about it; therefore he is stonewalling disclosure of his finances. 

Essential questions the House need to be answered about the banking and finance documents:  Did Trump engage in money laundering through Deutsche Bank? To whom does Trump owe money?  Is there evidence the Russians know dirt about Trump's financial maneuvers that they could or can now blackmail him to dance to their tunes?

So long as the courts keep ruling against the Trump stonewalling and the House committees are able to get witnesses to testify and documents produced, so the inquiries paint Trump in a bad light before the 2020 elections, this strategy will work to cause Trump to lose in 2020. This also assumes the Democrats do not blow it by nominating a candidate who cannot win.

Are the Democrats winning in the courts? 

Yes,  at least in two cases so far, judges have ruled against  Trump stonewalling to keep records from the House.: All of these are rulings are subject to appeal. If the President hopes the process will drag out until after 2020, he may be in for a disappointment since, given the importance of the cases for public information, judges so far have given their hearing and decisions fast tracks.  Yet to be decided in the courts if Trump can be compelled to turn over his tax returns.
One ruling was requiring Deutsche Bank to turn over their records to the House. Another was requiring Trump's accounting firm Mazars to turn over their records to the House. The one regarding Mazars is setting the tone and arguments for all other judges to consider in other cases of stonewalling.

Friday, May 24, 2019

GOP and Democrats switch roles in the Trump era

A version of this was published in the Sky Hi News, June 5, 2019

Watching an interview with the new Democratic Congressman Jason Crow from Colorado's 6th, a Denver suburban district that flipped from red to blue in 2018, brought home how strange life has become in the Trump era. The Democrats and the GOP have reversed their traditional roles in many ways.

  Crow,  an army ranger combat veteran who rose from a private to a captain with multi tours of duty in Iraq and Afghanistan is no oddity in the Democratic House caucus. Now, Congress has many Democrats, ten of the 67 elected in 2018,  men and women, who have had combat experience or who were intelligence officers, and who have brought their views to Congress of respect of the military and wisdom about war.  Once respect for the military was a GOP patriotic thing, salute the flag, patriotism,  and honoring those who sacrificed their lives to keep America free. All of those traits were a  guaranteed flag waiver.  Democrats after Viet Nam were less supportive of the military and were skeptical of sentiments hyper-patriotism.   The generals who had joined the administration's White House staff are long gone after daring to advise the President in ways that were contrary to his misconceptions.   However, Democrats have been the ones who now have their ranks including military veterans and who often cite departing, disillusioned military advisors like the ones who represented forces keeping the President's worst impulses in check.   How times have changed as Democrats view military brass and veterans as forces for good as Trump sheds or fires his military White House advisers.

Once upon a time not so long ago Conservatives and the GOP were seen as defenders of the original intent of our founders in writing the constitution. The executive powers were checked and balanced by the legislature and the Supreme Court in sheer fear some future politician would rise to be King not subject to the same laws as those he governed, free to undermine and trample and interpret laws to promote his retaining power.  Now the Trump administration is the one advocating a "strong" leader and stonewalling and subverting the attempts of Congress to hold him accountable. Through appointments of federal and supreme court judges and an attorney general who has a record of advocating the supremacy of the presidency, the Trump administration is proclaiming its power to be above the law and above the ability of Congress to hold the president accountable. On the other hand, it is the Democrats who have become the champion of the original intent of our founders and the constraints on the executive branch as they interpret the meaning of the provisions of the Constitution. It is the Democrats who are supporting the mantra that no one is above the law and upholding the separation of powers as they rail against Trump's tendency to act like an imperial president.

Once upon a time, the FBI was seen as the ultimate law and order enforcer in the US, admired as macho heroes who went after terrorists and mob bosses with dogged devotion to acting on behalf of the rule of law and order, saving our freedom from the USSR aggression. Now, the integrity of the FBI is under attack by the President, who is engineering a special counsel to investigate the investigators, claiming their Republican-affiliated staff leaders were out to get him. The FBI was the GOP's good guys in the months leading up to the 2016 campaign when they announced on again and off again criminal investigations into Clinton's alleged misuse of emails and possibly disclosing classified information.  Their actions may have been the ultimate factors in her defeat though Russian interference that painted Clinton in a bad light via bots and disinformation may have played an equal role. That GOP love affair with the FBI went south in 2017 when it became common knowledge the FBI was looking into the Russian connections of Trump and his campaign associated and Donald Trump fired James Comey, the former admired FBI chief whose actions helped Trump get elected.  The Democrats emerged as the champion of the FBI and US intelligence services and the rule of law.

Upside down and changing places are partisan attitudes toward Russia. The FBI and our intelligence services kept us safe from the Soviets in the Cold War, when Russians were viewed as our sworn enemies.  The Democrats are now the ones viewing Russia as an enemy and the GOP is either in denial the Russians interfered with the 2016 elections or asking, so what is wrong with that?  In spite of the post-Soviet era thaw, the rise of former KGB operative Vladimir Putin to near dictatorial control of Russia and looking to reassemble the former Soviet influence in East European border states, has resulted in the US intelligence agencies considering Russia an adversary. On the other hand,  Donald Trump sees Russians as a trusted ally with their foreign policy goals worthy of his support. Trump in Helsinki publicly has proclaimed he trusted Putin and Russian intelligence services over our own and after other secret meetings with Putin, he took Putin's word for it that denied Russians interfered in the 2016 elections. Trump has taken actions to lift sanctions on Russians for their expansion into Ukraine, Crimea, and interference in the 2016 elections and advocated measures to weaken NATO's mutual defense function that is keeping Russians from advancing their control of NATO members. Turning a blind eye to any evidence of Russian interference presented by Mueller, the GOP seems not to care that Russians attempted to twist the minds of US voters with their use of social media and advertising, subverting US democracy's purpose of our freedom to reflect the will of our own citizens and to destroy our trust in democratic processes.


Donald Trump's strategy to protect his presidential power is to investigate the investigators.  His goal is to destroy the credibility of the Mueller report without having to provide evidence refuting its findings. He wants voters to consider the motivation of the investigators as disloyal to him and to ignore the facts and conclusions. To rationalize his goal, his view is that law and order mean whether the enforcers and the intelligence services are loyal to him instead of whether they are loyal to the United States and to the Constitution to which they swore to defend when they took office. These intelligence and law enforcement agents did not pledge allegiance to the president,  or the institution of the presidency.  A dictator demands loyalty to himself, not to the impartial rule of law.  Once the GOP were the law, order, and strict  Constitution folks. How times have changed with Democrats as the ones citing the original intent of the Constitution, assuming the mantle of defenders of the rule of law, and opposing the expansion of executive powers over the legislative branch.

 Last week Trump accused those investigating him as committing "treason" against him.  He has claimed the FBI was engineering a coup against his presidency.  He believes he is the person to whom we pledge allegiance, not the United States and the democracy for which it stands. He is above the law, he thinks. Those are the words and thoughts worthy of a dictator. Treason is an accusation Trump has recently been throwing around as a way to charge his enemies with not pledging allegiance to him. Treason has two elements: working with a foreign enemy against the interests of the United States with a foreign power with which we are at war. .That definition does not include working against the interests of the president in power.

 Even more frightening, Trump is ordering all of the US intelligence services and federal law enforcement to cooperate with an investigation to see if "treason" was committed against him by beginning the investigation into Russian interference in 2016. Trump's loyal Attorney General Bill Barr has appointed a special counsel to investigate the investigators and the president granted him powers to declassify classified information, possibly exposing to our adversaries sources and methods. At the same time, the Trump administration is stonewalling sharing with Congress all of Mueller's underlying evidence and the unredacted version of the redacted report and forbidding across the board any of his administration testifying before House committees.  Last week two separate federal judges ruled against Trump's stonewalling tactics, as the conflict between Trump and the House now moves to the courts.

 Since Mueller found no evidence beyond a reasonable doubt the Trump campaign intentionally coordinated or conspired with the Russians to fix the 2016 campaign, Trump himself was exonerated of criminal conspiracy. The service to US security the Mueller report and the text of indictments provided was to lay out measures the Russians conducted to shape the 2016 election to serve their national interests, not ours.

  However, Robert Mueller cited ten examples with evidence Trump endeavored to obstruct justice ( aka the investigation) including ordering his subordinates to lie and cover-up.  Mueller also wrote he could not indict a sitting president of a crime per department rules and he plainly wrote he did not exonerate him of those violations. Trump's lawyers tried to contend that Trump failed in executing obstruction so he committed not a crime, but federal statutes only require that he ""endeavored, not that he had to succeed.   Trump's loyal AG Barr tried to deceive the public by claiming Trump was exonerated of "collusion". Mueller never looked at the more passive campaign actions of publicly encouraging, ignoring or denying, aiding and abetting,  and receiving information and intelligence, popularly called "collusion", because there is no such term in the criminal code or a provision to prosecute collusion as a crime.

More on treason From the US Federal code: "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason".  If there were suspicions anyone was working on behalf of a foreign government, it was Trump himself and the over one hundred contacts of his campaign and White House associates had with the Russians.  Little did Donald Trump know until later that the FBI had launched a  secret counterintelligence investigation a July 31, 2016, alarmed by the frequent contacts Trump's campaign staff had with Russian operatives and evidence of advance information a campaign official had of Russian hacking.   All of the upper echelons of the FBI were registered  Republicans and of the law and order traditions, and many were veterans of the Cold War, aware that Russia was an adversary, not a friend, of the United States. In early January 2017, US intelligence agencies warned Trump of Russian activities in the 2016 election, which he questioned and then ignored. That was even before Trump demanded loyalty from FBI Director Comey and fired him over "this Russian thing", later firing Flynn.  Trump even fired Sally Yates, the acting attorney general who warned him of the  Russian connections of Mike Flynn, his national security advisor, who was vulnerable of blackmail. Flynn later "resigned" and pled guilty of lying to the FBI. That was even before Trump demanded loyalty from FBI Director Comey and fired him over "this Russian thing".


18 U.S. Code § 2381.Treason "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.(June 25, 1948, ch. 645, 62 Stat. 807Pub. L. 103–322, title XXXIII, § 330016(2)(J), Sept. 13, 1994108 Stat. 2148.)



Tuesday, May 21, 2019

AG Bill Barr's slick lawyer's tricks on collusion will haunt him.

Updated May 26, 2019, to include comments on treason.
A version of this was published in  the May 30, 2019

AG Bill Barr's slick lawyer's tricks on collusion will haunt him. Trump's loyal Attorney General Bill Barr was very deceptive and fooling the American public when he screened the Mueller Report before it was released to the public, giving him a chance to spin his tale and trick the voters. 

Now, the President has granted the same Bill Barr access to all classified findings of any US intelligence agency, the FBI and the CIA,  and the power to declassify them if he wishes,  as his newly appointed special counsel conducts an investigation of the investigators. So now we are supposed to believe the same AG Barr in the future who now has a proven track record of deception. Barr will now be able to screen any classified findings by any of our intelligence agencies, the CIA, and the FBI and then cherry pick which phrases that make his point, regardless of the context or the qualifiers and once again spin another tale.

Barr has lost his credibility. We have been down that road with his slick lawyer trick of claiming his client, the president, is exonerated of" collusion" which Mueller did not even investigate. Mueller exonerated Trump of conspiracy, which is quite a different thing, requiring much more convincing proof and, unlike collusion, is a crime named in the criminal statutes. Conspiracy and collusion are not the same. Conspiracy  is the same as intentionally getting together,  planning actively with Russians. Proof beyond a reasonable doubt is required in convicting someone of a crime. Collusion is .just aiding and abetting and receiving information. without actively conspiring and planning. Collusion could still be an article of impeachment since the House can define what is meant by high crimes and misdemeanors. To be impeached, the president does not have to have been indicted or found guilty of a crime first.

 Here is Mueller from the report:
"In evaluating whether evidence about the collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]”…has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law."

Barr's client, the President, has his own view of the investigators who investigated him. Barr will have a heck of a time trying to defend and spin Trump's newest charge that those who investigated him committed treason or that the Mueller investigation was an illegitimate "coup".  Last week Trump accused those investigating him of committing "treason" against him and he called them out by name. Those are the words and thoughts worthy of the dictators Trump so admires. Treason laws are designed to protect his power and longevity in office, he thinks. 

Trump has charged the FBI with engineering a coup against himself. As he claimed in his angry and defiant rant last week,  the FBI was working against the "wrong person". This is the same person who meets Putin in secret with whom he shares classified information,  and whose campaign associates had over 200 contacts with Russians, eight of whom have been indicted and some in jail,. This is a person whose fondest dream before and while a candidate is to do the biggest business deal of his life in Russia.  He believes he is the person to whom we pledge allegiance, not to the United States and the democracy, its laws, and national security interests. 

Here is why Donald Trump's bluster and threats against those on his enemy list will go nowhere. Treason has two elements in the Constitution and federal statutes. : 1.working against the interests of the United States 2.with a foreign power with which we are at war. .That definition does not include working against the interests of the president himself.   We have not declared war against Russia, though we consider them our adversary working actively to undermine our democracy and to shape our foreign policy to suit their national interests which are contrary to ours.

 Barr has appointed a special counsel to investigate the investigators to discover whatt led to the Mueller investigation. His challenges are this new investigation.  If claiming the Mueller report and investigation was a "coup", a hoax,  and an illegal witch hunt undertaken by  FBI agents  "out to get him" and not loyal to the president  (other Trump attack lines),   a federal appeals court  in the Roger Stone trial already ruled that the special counsel's appointment was legitimate.  If there was smoke, fire was found. Russian interference in the 2016 election was laid out in vivid detail in the Mueller Report, resulting in numerous indictments of spies and GRU operatives. Five of Trump's campaign associates and three others have already pleaded guilty, mostly for lies and cover-ups of Russian and foreign contacts (including national security advisor Lt.Gen. Mike Flynn),  but also for witness tampering.and bank fraud ( Trump's campaign manager Paul Manafort) and a Russian operative Maria Butina for spying.. Trump himself was conspirator person number one in another case of election finance violations which landed his personal attorney, Michael Cohen, in prison for three years.

18 U.S. Code § 2381. Treason "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

Sunday, May 19, 2019

Barking up the wrong tree

Update: evening May 20 2019

Link to Judge Mehta's opinion text

The House demanding the Trump records from an accounting firm landed in court and the Trump argument that it was for political purposes was tossed out by the judge as he ruled against the White House.  This is important because it reaffirms the oversight function of Congress and its subpoena powers, implying that impeachment is not necessary for Congress to get subpoenas obeyed. The ruling was also very quick as such process goes and the Trump strategy to try to drag out the court process until after 2020 may not work. Chances are further court cases like this may meet the same fate. This is a victory for the rule of law and the oversight powers of Congress with or without having to begin impeachment. Trump hopes to keep away from voters any evidence of wrongdoing, piously saying leave it up to the voters in 2020. How can either voters or Congress make a decision if the facts are hidden from them?

A version of the following was published in the Sky Hi News, 5 22 2019

The Special Counsel's report into Russian interference in the 2016 elections is continuing to dog President Trump in spite of proclamations by his cohorts in the Senate and himself that the case was closed. See, he says,  it was all a hoax and a witch hunt anyway.  This is in spite of five of Trump's campaign and White House associates, and three others pleading guilty of Mueller's findings, two of which are already sitting in jail.The Trump administration's real feelings expressed in their actions suggest otherwise.  The Trump administration is diverting voters' attention away from the Mueller findings and instead is urging them to bark up another tree: investigate the investigators.

 So afraid of House hearings and talks of beginning the impeachment process, Trump and his Senate supporters are acting as if they fear the voters might get a more vivid picture of the report by Special Counsel Robert Mueller when witnesses testify before the House committees and the words they speak themselves are carried on national TV. The bulkiness of the  448 pages of the report makes it nearly impossible for the public to sort the most important trees from such a dense forest of words just by reading it.  In response, the Trump strategy is to keep as many key witnesses from responding to subpoenas to testify, using executive privilege and excuses politics are being played and to keep any underlying evidence or an unredacted report from seeing the light of day. Trump is now refusing to let the former White House Counsel, Don Mcgahn, appear, telling him to ignore the subpoena.  Barr is already facing contempt of Congress charges for refusing to release the full unredacted Mueller report.

 AG Bill Barr last week appointed a special prosecutor to determine if the investigators spied on the Administration or were politically motivated. The administration had already tried to argue that the appointment of  Mueller was illegal but that argument was shot down by a federal appeals court earlier in a case involving Roger Stone. This new special counsel investigation is a sideshow to the main event. It is obviously designed to divert voters' attention from the more consequential tree, the substance, and veracity of the Mueller Report, and discovery of more damning information not included in the redacted report itself.  The pressure to appoint this new counsel came from Trump supporters.  The Administration has not offered an effective counter-response to the detailed evidence, sworn testimony, and substance of the Mueller report.  Instead, the administration is trying to attack the whole report's credibility based on its origins and motivations of the investigators.

There was no hoax when it came to what the Russians did in 2016. The Russian witches were flying in full regalia on the broomstick of modern media throughout  Volume I of the Mueller report.  The Russians were not exonerated of their active measures to try to twist the minds of voters. In fact, their spies and GRU operatives were indicted.  That is a different finding when it came to the President, who was exonerated of conspiring, coordinating and plotting with the Russians. Trump was not exonerated of obstruction of justice but the Department of Justice rules kept him from being indicted. The Trump appointed Attorney General Bill Barr deceived the public when he asserted the President was exonerated by Mueller for "collusion".  In his redacted report, Mueller wrote he did not even investigate the President for "collusion"; he investigated the criminal charge of conspiring which requires evidence of intent and active coordination with the Russians. There was not enough evidence to prove a conspiracy. They may have welcomed Russian actions, provided polling data, and encouraged Russia to act ("Russia if you are listening, find Hillary's missing emails"), tried to establish back-channel communications, and met with Russian officials and operatives more than a hundred times,  and promoted Russian foreign policy regarding Ukraine and sanctions,  but that was not enough  evidence of  "conspiracy" as defined by criminal statutes.

What is at stake in the House investigations is more than just educating the public, embarrassing the President,  and impacting public opinion for 2020 presidential elections. It is about recommending changes to the Special Counsel legislation and shaping and funding elections to be protected from foreign interference in the future. The legislation is already in the works to limit the President's power to dangle pardons to influence testifiers and giving greater access to tax returns.

 Yet to be discovered by the House is whatever happened to the counterintelligence investigation that was launched July 31, 2016,  and to learn if the Russians had evidence that they could hold over the President to force him to act in Russia's interest.  These findings were not included in the Mueller report and they still need to be pursued.  The House is hoping Trump's tax reports release could shed light on to whom he owed money and the Administration is fighting that release of tax reports tooth and nail.

Also at issue is even more than just a power struggle between two branches of government. It is getting at the truth by seeing the entire unredacted version of the Mueller report, its underlying evidence, and the grand jury findings.  Some of this cannot be discovered unless formal impeachment proceedings are begun, a process that empowers Congress greater ability to access the information. In the meantime, the action or slow action moves to the courts, which Trump hopes will draw out any decisions until after 2020. Congress can only fine (and unlikely imprison) those who refuse to honor subpoenas.  Charging contempt of Congress carries no real penalties other than to expose to the public bad behavior by officials.

 The only branch with any power to force the Administration to abide by the subpoenas is the Courts, which is where the real fight will now take place. The Courts do have power to jail and fine for contempt of their orders. The argument the Administration gives for stonewalling Congressional subpoenas is that Congress wants the information for political reasons only.   If case law coming from the Nixon impeachment era stand,  those arguments will not hold water. Two articles of impeachment charged against Nixon were stonewalling subpoenas from Congress and by endeavoring to obstruct justice. Similar charges could be at play in any Trump impeachment process.


Saturday, May 11, 2019

Getting into the weeds in impeachment

This is a companion piece to a posting on the same day: Crisis in American democracy: Time to impeach?

Here are the realities. To understand it means getting into some weeds.  There are some fundamental protections of American democracy hanging in the balance. The White House getting away with stonewalling Congressional subpoenas undermine guardrails our founders designed to protect us from an autocratic ruler, whether we call them a King, a strong man, a dictator, or an autocrat.  A White House who proclaims they are not subject to the law or to Congress is a near and present danger to democracy.  We now have an Attorney General, Trump's appointee,  Bill Barr, Trump's appointed attorney general, comes equipped with existing views that firing those investigating the President is not a conspiracy to obstruct, even if the act has a corrupt intent to protect his hold on power. Trump's  Barr believes the executive branch is the one to sit in judgment of  possible criminal activities of  their head, the  President, as he declares the Special Counsel Robert Mueller 'sReport  exonerates Donald Trump of obstruction of justice in spite of the report that provides evidence of at least ten attempts, or endeavors, to obstruct the  investigation into widespread  Russian interference in the 2016 elections.   The Justice Department's own manual based on numerous court decisions is that the accused does not need to succeed in obstructing justice, but only needs to "endeavor" to do it, but both Barr and the president's own attorney, Rudy Guiliani choose to ignore that fine point.   The techniques they are using are ignoring all House committee subpoenas and/or claiming executive privilege.

 We have seen this scene before. It is the Richard  Nixon anti-impeachment strategy all over again and we know how that turned out.  Legal experts say case law favors the Democrats. Unlike the Nixon history when Democrats controlled both the Senate and the House,, the Trump administration is counting on a GOP Senate majority and a more friendly Supreme Court to help them out.  Trump on other issues has viewed the Supreme Court as his ally since he appointed two of the justices with many views similar to his. Furthermore, since both Clinton and Watergate impeachment attempts, the rules have changed, putting the Department of Justice in charge of the special counsel investigation.

  Last week the issue came to a head in Congressional scrutiny of  Attorney General Barr and the dawning by those who read the latently released Mueller report that the president was not exonerated of obstruction of justice crimes as Barr had deceptively argued in his infamous March 24 “summary” of the report findings. Barr failed to appear before the House judiciary committee May 2 and has so far failed to turn over the unredacted the version of the Mueller report and the underlying evidence.  Wednesday, May 7,  Barr was to be charged with obstruction of Congress and the White House is claiming executive privilege on subpoenas as they play keep away of the full Mueller report from Congress. They are expected to use the same delay, obstruction tactic for the key witness in the obstruction of justice, White House Council Don McGahn, and testimony by Robert Mueller himself who thought his report would be going to Congress for the appropriate remedy. The Trump administration vows to fight every subpoena issued by the House of Representatives for administration witnesses to appear or documents to be produced. They fear above all TV coverage of witnesses testifying would give voters their own chance to decide for themselves who was lying.  Richard Nixon tried that same strategy, with the articles of impeachment including a charge of abuse of power as well as obstruction of justice. Regarding the crime of conspiracy,   Trump was indeed exonerated by Mueller.

 Impeachment is similar to a criminal indictment and the Senate holds a trial and sits in judgment with the power to send the President packing. The process does differ than a criminal indictment and requirements.  In impeachment, the articles (charges) the burden of proof is whatever the House says it is and it defines high crimes and misdemeanors. This is in contrast with a criminal investigation and prosecution.   The Mueller findings look for "proof beyond a reasonable doubt' to justify criminal indictments, but the Department of Justice and a ruling by their legal counsel do not permit the indictment of a sitting president. The remedy lies with Congress, the impeachment process, and indictment after the President leaves the office.

The key to much of this is the judiciary and how much their members honor the oath to support and protect the Constitution as opposed to swearing allegiance to Donald Trump.  An independent judiciary is the fundamental requirement of a democracy. The first step any modern-day wannabe dictator has used to make his once democratic country a rule by a person is to replace the judiciary with loyalists, thereby destroying the ability of courts to hold the strong man to existing laws of the land that are supposed to be applied equally to political friend and foe.  In democracies, an independent judiciary and the rule of law are entwined. In dictatorships, judges can be counted on to rule in favor of the great leader and against dissident voices. In spite of Trump and the Senate fellow travelers trying to fast track stuffing the courts with loyalists to Donald Trump, the only power still standing in the way of whether we are ruled by law or by a  self-serving person who decides what the law means, is an independent judiciary that we hope still exists.  Having successfully appointed two justices, Neil Gorsuch and Brett Kavanaugh, to the highest court, Donald Trump seems to view the Court as his ally. He recently indicated he would expect them to protect him from impeachment or unfavorable rulings by lower courts and Congress. (The Constitution carefully excluded the Court from the impeachment process, except to chair Senate deliberations).

 Even so, the evidence in the Mueller report was there for all to read of multiple examples of how President Trump had obstructed the investigation into the Russian meddling in the 2016 campaign. Mueller carefully stated in his report the reason why the president was not indicted was because of a Department of Justice rules and a Department of Legal Counsel that a sitting president could not be indicted.  That left impeachment, a Congressional action, or prosecution after leaving the office to resolve.

Damning last week was an open letter by a bipartisan group of over 500  former prosecutors who not only said the evidence was there in the redacted Mueller Report for a criminal conviction. From the letter:
“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felonies charges for obstruction of justice..”

The friends of Trump have made some counter legal arguments that Trump cannot be accused of obstruction of justice because he was not obstructing an underlying crime and that, though he may have tried to obstruct the FBI investigation by firing the heads of the investigation, Comey and Mueller, he did not succeed.  The Department of Justice manual asserts that the accused only needs to have “endeavored” to obstruct justice, not that he succeeded, and that the obstruction of a criminal investigation alone is sufficient. The Mueller investigation was a criminal investigation.

Wednesday, May 8, 2019

Crisis in American democracy. Time for impeachment?

A version of this was published in the Sky-Hi News May 15, 2019

We are now at a crisis time in American democracy with a president who believes he is above the law.  Above the law is a phrase that means that a person fails to follow the law and does not obeys it, claiming it does not apply to him/her personally. A Justice Department rule forbids indicting a sitting President. That same President Donald Trump and his lawyers contend he and members of his administration can ignore the House and Senate subpoenas and are thus can deny the legislative branch its Constitutionally granted powers of oversight.  The principles involved and the exposure Congressional hearings will provide of the Mueller findings are moving me to support opening an impeachment inquiry.  How long that inquiry lasts can be managed. Whether that leads to a  House vote to impeach may or may not happen. That the  GOP dominated Senate would remove the President most likely will not happen,  but for the sake of democracy, it is worth starting it.   Democracy dies in this electronic era when TV cameras are turned off because that is how voters learn who is telling the truth and get a sense of the seriousness of the issues. 

Trump hopes to keep away from voters any evidence of wrongdoing, piously saying leave it up to the voters in 2020. How can either voters or Congress make a decision if the facts are hidden from them?

The strongest argument for impeaching the President is protecting the future of our American democracy that depends on adherence to the rule of law, not pledges of allegiance to the rule of a person. Congress needs to begin impeachment proceedings in order to live up to their obligations to protect us from the rule of a wannabe king, autocrat, or dictator,   who determines for himself what the law means to which he is bound.   Like it or not, politically expedient or not,  Donald Trump is pushing and shoving a reluctant House of Representatives to begin the first step in the impeachment process, an impeachment inquiry.  It is the most effective way to speed up and get favorable court judgments against the administration's stonewalling methods. If the courts rule against the Trump administration, and the Trump administration refuses to abide by the decision, then we have a full-blown Constitutional crisis that only an impeachment process or the next election can resolve.

Here is what is going on: The White House is trying to stop present and past members of the administration to show up to testify at televised Congressional hearings.  They are making a case evoking executive privilege to stop White House and Department of Justice past and present personnel to explain in greater detail verbally to the public what is already a matter of public record the Mueller Report and why and how they reached their conclusions. They are also refusing to provide the unredacted version and underlying evidence to the House, even if the House provides necessary secrecy protections required by law. Their strategy is to hope this all lands in court in order to drag out the power struggle until after the 2020 elections.  There is another way to speed up and obtain court judgments. It is to begin an impeachment inquiry. 

House Speaker  Nancy Pelosi, cooling talk of impeachment, has been making the argument that Donald Trump wants the House to begin impeachment so he can paint himself as a victim of his opposing political party that is engineering a "coup" to oust him from power. He is already asserting that argument, anyway, but beginning impeachment would only dramatize that ploy that appeals to his base who seem to believe and support everything the great leader says. However, their argument also appeals to those moderates and swing voters of the electorate who are not so much Trump hero worshippers, but who are sick and tired of the Washington games and would rather hear about health care, the economy, and immigration. 

 Yes, launching the first step in impeachment, a formal inquiry, is risky business.  The risks threaten both Democrats and Republicans. In fact, polls show impeachment approval splits along party lines. Even in the midst of impeachment rumblings, Bill Clinton's approval rating soared and Nixon was elected to a second term. There is a political risk involved, indeed.  On the other hand,  not to act risks setting precedents for the future that could destroy our democracy as we have known it and taken it for granted. The risk Trump takes is that more public exposure could also lead to greater approval by voters for impeachment. 

In the past  Courts have shied away from being involved in power struggles between the executive branch and Congress,  and they might do so in this current conflict if they are to rule on current subpoenas. If the House now dominated by Democrats, begin an impeachment inquiry,  the courts may then take the administration's refusal to adhere to subpoenas much more seriously as a Constitutional issue,  an attack on a Constitutionally permitted process.  What the Supreme Court will do is a question, as well, since Trump has added two loyalists to the bench and considers it "his" court.  By stonewalling subpoenas as they are now to drag out the court decision process past 2020 elections, the White House may force Congress to launch the impeachment process just to get the testimony they need to do their job of oversight so voters will have a clearer picture of Trump than they have now. 

These are inside the ballgame kinds of concerns, boring civics, and history lessons of why America came into being long forgotten since middle school and high school. Falling on deaf ears of most Americans is the constant beat of Democrats and a few independents that the president is not above the law or that balance of powers between the three branches of government is essential to protect us from rule by a person instead rule by the laws. Those who want to give all power to the President hope you, the voters, do not care or do not get it or owe it all to partisan politicians squabbling over power and control.  Trump's gamble is that if he loses the subpoena issue and administration witnesses are forced to repeat what they told Mueller before TV cameras, the public may "get the picture" and public opinion may become much more supportive of impeachment or will at least deny him his second term. The principles involved and the exposure Congressional hearings will provide of the Mueller findings are moving me to support opening an impeachment inquiry. Whether that leads to a vote to impeach may or may not happen, but for the sake of democracy, it is worth it. 

Monday, May 6, 2019

Barr's Mayday distress sparks a bigger mess

A version of this was published in the Sky Hi News on line 5/7/19

Update: May 8, 2019, Barr was charged with Contempt of Congress by House committee

The grilling Attorney General William Barr got from Senate Democrats in his appearance May 1 in Senate hearings must have been enough for him. Attorney General William Barr bailed out, failing to appear for a House  Judiciary Committee hearing the next day on the same subject,  special counsel Robert Mueller’s report about Russia's interference in the 2016 elections. Barr was accused by Senate Democrats of splitting hairs in semantic wranglings, and even outright lying to Congress in his testimonies May 1. Some  Democrats called for impeaching Barr for lying.

 Barr had objected to the House appearance May 2 because he did not want to be cross-examined.  Follow up questions by staff attorneys are a jeopardy he was not willing to face.  Barr objected to being cross-examined by House counsel that was not bound by a five-minute rule for questioning imposed on House members themselves. .Having House staff attorneys do the questioning is not an uncommon procedure when points of law are being argued or there is suspicion of someone lying.  Just ask Dr. Blasey Ford who got cross-examined by the Senate committee’s specially hired attorney in the Kavanaugh Supreme Court Senate confirmation hearings.

 Will any of this lead to President  Trump’s or Barr’s impeachment?  Speaker Pelosi is putting on the brakes for now even as she accused Barr of outright lying to Congress, as well as telling her caucus not to proceed for the impeachment of the President.  She has her eye on 2020 election strategy and impeachment would play into Trump’s hands in portraying himself as a victim.
Instead, the strategy of House Democrats is getting key players quoted in the Mueller Report to testify to repeat in a public hearing the same findings published in the report. This has a far more public impact than just hearing excerpts or reading a 448-page report.  Barr and Trump's media have spun and distorted the findings so effectively, public broadcast of hearings of testimony by the major players would dramatically inform a public of what the findings really were or meant. Today’s voters are more attuned to hearing it themselves than reading it in print and may get a better picture of who is telling the truth about Russian intervention in the 2016 election and whether the President obstructed justice by seeing and hearing those testifying. Polls show increasing public perception already damaging to President Trump.   58 to 60% of the public believe Trump has lied about the Mueller Report.   Another poll finds an even split over whether Trump committed crimes while in the White House and two-thirds of those polled are still not in favor of impeachment. Dramatic House hearings could tilt future polls, just as public testimony turned public views against Nixon in Watergate.

 Robert Mueller is scheduled to testify before the House Judiciary Committee meeting May 15 and Trump says he will not allow it.   Another key player is White House Counsel Don McGahn, who had spent hours testifying to the FBI. He is the key witness to some of Trump’s alleged obstruction of justice evidence.. Trump and his administration are trying to prevent them from answering a subpoena to testify in person, just as they have made it clear they will try to block any subpoenas to present documents and testimony before Congress Richard Nixon in Watergate tried the same tactic, but court decisions were ruled against him. We know how that saga ended.

  In questioning by Sen. Chris Van Hollen (D-Md) and Rep. Charlie Crist (D-F) April 9, 10, 18 Barr had testified Mueller had not objected to his April 24 exoneration letter. Barr lied. He knew better. May 1 his lie was exposed. Barr had received a telephone call and two letters of record from Mueller, one made March 25, and with the March 27 letter later released by the Justice Department May 1, the morning of the Senate hearings. Special Counsel Robert Mueller wrote in the letter to Barr March 27 complaining on record about Barr’s March 24 statement characterizing Mueller’s report. He wrote:  "The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions. We communicated that concern to the Department on the morning of March 25. “
So, what can the Democrats do short of impeachment and besides holding public hearings?

Democrats can craft an amendment to the special counsel legislation to require a special counsel’s report to be released to the Attorney General and to Congress simultaneously in order to call out a misleading spin and reinstate a better balance of power between the Executive and Legislative branches..  They can charge Barr with Contempt of Congress, if not for lying, for failing to turn over the unredacted version of the Mueller report. A House vote on contempt charges is scheduled for Wednesday  Democrats can pursue by filing suits in the courts.  Whenever this makes it through the courts is anyone’s guess, but it is not out of the question it might be decided in the middle of the 2020 campaign.  No, Mr. President. This is not over.
.____________________________________________________________________________ Later in the May 1 Senate  hearings , Sen. Kamala Harris ’s masterful questioning  got Barr to admit that he had written his infamous March 24 letter, in which he ruled Trump was exonerated on both collision and obstructions of justice,  without reading the underlying evidence and that there had indeed  been a discussion by Trump of opening investigations into Hillary Clinton and other Democrats.
There is even a question if Barr had even read the report because under grilling he either feigned ignorance or was ignorant of Mueller’s finding that the Trump campaign chair Paul Manafort shared the campaign polling data with a suspected Russian operative, Konstantin Kilimnik. No wonder we observers of Russian interference in the 2016 campaign marveled at how the Russians understood American politics so well they could target their advertising and propaganda to key swing voters in rust belt states. We suspect we know now.
 Barr has made the claim that since Mueller did not indict the president for obstruction of justice, he, therefore, was exonerated, permitting Trump to claim he was exonerated on all counts. Not true. The reason stated clearly in Mueller’s report was that Mueller was bound by Department of Justice rules and opinion of the Office of Legal Counsel that a sitting president could not be indicted. Mueller indicated in his report that the remedy was impeachment or indictment after leaving office.

There is even a question if Barr  had  even read the report because  under grilling he either feigned ignorance or was ignorant of Mueller’s finding that  the Trump campaign chair Paul Manafort shared the campaign polling data with a suspected Russian operative, Konstantin Kilimnik. No wonder we observers of Russian interference in the 2016 campaign marveled at how the Russians understood American politics so well they could target their advertising and propaganda to key swing voters in rust belt states. We suspect we know now.