What's next in impeachment

A version of this was published in the Winter Park Times December 6, 2019.
https://winterparktimes.com/opinion/columnists/impeachment-a-clown-show/

What’s next in Donald Trump’s impeachment?  The House Intelligence Committee and two other committees involved are reporting their inquiry results, their investigative findings, to the House Judiciary Committee. That committee will draw up the articles of impeachment, similar to prosecution or plaintiff charges or complaints in a court process, though non-statutory criminal behaviors can also be considered. So far, the White House has refused to participate, claiming this is a coup, hoax, an unfair, partisan witch hunt, and illegal act, devoid of due process. They have left their defense and representation up to House GOP loyalists who call this a “clown show”.   Is it?  The process is outlined and Congressional action is empowered by the Constitution as part of the checks and balances protections against being governed by a king, a person, instead of abiding by the rule of law.  The Constitution writers wanted Congress to hold a president accountable for” treason, bribery, or high crimes and misdemeanors” through the impeachment process. If you have watched any part of the hearings on TV  you know that both Republicans and Democrats have had equal time to cross-examine witnesses and make their political cases, even in the not so secret deposition phase. Deposition transcripts are published on the web and testimonies of fact witnesses are readily found on YouTube. Republican House members in the inquiry hearings mostly ignored facts revealed by witnesses, called three of their own witnesses, attacked the process,  and impugned witnesses. They demanded to investigate conspiracy theories already debunked or not central to the issue at hand.

 Partisan? The beginning of past impeachment processes was very partisan but by the time the process reached the Senate to hold a trial and vote, facts, evidence, and public polling also impacted the extent of party loyalty and discipline. In fact, when Richard Nixon got a forecasted vote count, he resigned before any votes were taken in the House or the Senate. Assuming the Republican-controlled Senate honors rules already in place, this should ensure the ultimate fairness of a courtroom type procedure. The Constitution requires  a vote of two-thirds of senators to find the president guilty as charged in at least one of the articles of impeachment and to remove him from office, virtually ensuring that there is bi-partisan consensus needed to reach that total. No president to date has gotten the two-thirds vote needed to be found guilty and removed, the bar is so high.

The GOP and the White House pounding the table about the unfairness of it all is a strategy that will only go so far. The White House has stonewalled all Congressional subpoenas and has now refused to participate in Judiciary Committee hearings, even with their attorneys or the President himself invited to participate.  The White House is making their case on media outlets that are friendly to them and tweets, avoiding having to swear to tell the truth while denying facts uncovered by the inquiry hearings. Eventually, they will have to deal with the facts, swear to the truth if they testify, claiming executive privilege, or take the fifth.  A judge just ruled against the Executive Branch claiming blanket immunity as grounds for ignoring Congressional subpoenas and declared, “the president is not a king.”

Some say leave it up to 2020 elections, they are so soon   If it is a given that the Senate on a party-line vote will acquit the accused president, why go through the process of impeachment?  It serves the purpose of informing voters of wrongdoing or exoneration they otherwise may not have known, and it may or may not affect the next election.  Such actions, in any case, set standards either lower or better defined for acceptable future presidential behavior.  It is at minimum a black mark on the president’s name in the history books which may be punishment enough that future presidents may want to avoid it.
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My takeaway from the Dec. 4 House Judiciary Committee hearings: : I thought the Democrats and their witnesses made a strong case for impeachment for preserving the integrity of our 2020 elections, keeping elections free from foreign influence. Therefore, speed is important before the president would do more damage. Impeachment was designed to reign in out of control presidents and not leave it up to voters in the next elections, because a president could use his techniques to determine the outcome of the next election. , Foreigners do not have our interests at heart but work to support theirs. Trump invited Russians to interfere in 2016 and he indeed pressured a vulnerable ally to help him just say they announced they were opening, not performing, investigations on his own domestic political opponent and a debunked theory in order to help him in 2020. The pressure used to get the Ukraine president to comply was comprised of restoring critical foreign aid and a White House visit as the reward for doing him some favors. It also looks that the Mueller obstruction findings will be rolled in.

https://www.nbcnews.com/politics/trump-impeachment-inquiry/read-full-text-trump-ukraine-impeachment-inquiry-report-n1095036?fbclid=IwAR0Ai0u_wVnUX_YDwkpZFF8qd92E7a5S3c_cIlMOkbt35YDedvF9lMx2C7M

https://www.yahoo.com/newsj/trump-faces-two-impeachment-deadlines-110905864.html

https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm

https://www.washingtonpost.com/opinions/its-hard-to-be-an-optimist-about-america-right-now/2019/11/27/8020e526-115b-11ea-b0fc-62cc38411ebb_story.html

https://www.govinfo.gov/content/pkg/CDOC-99sdoc33/html/CDOC-99sdoc33.htm

https://www.cnn.com/2019/11/26/politics/donald-trump-constitution-supreme-court-executive-power/index.html
https://www.nbcnews.com/politics/trump-impeachment-inquiry/democrats-impeachment-report-cites-trump-obstruction-withholding-aid-warns-grave-n1094341
https://www.cnn.com/2019/12/02/politics/house-republican-response-impeachment-inquiry/index.html
https://s2.washingtonpost.com/camp-rw/?e=ZmVsaWNpYW11ZnRpY0BnbWFpbC5jb20%3D&s=5de6e2ccfe1ff62e5b0a1ab3&linknum=4&linktot=49

Impeachment? Not so fast

A version of this was published in the Sky Hi News Dec. 11-12, 2018
https://www.skyhinews.com/news/opinion/opinion-muftic-impeachment-not-so-fast/

Immediately last Friday after Michael Cohen’s sentencing memo was filed, President Trump crowed he was cleared and the opposition media claimed there were grounds for impeachment because the President was in effect an unindicted co-conspirator of a crime, which was closer to reality. Special Counsel Robert Mueller’s court filings regarding Paul Manafort were either redacted or sealed, revealing little.

Often cited are precedents set by both the impeachment of Richard Nixon and Bill Clinton.   Neither Nixon nor Clinton was found guilty or was removed from office by Congressional votes. A simple majority in the House can vote to impeach,  but  two-thirds of the Senate must  agree to find him guilty and remove him from office.

 Impeachment is not so much a matter of law  as it is a political action. Voters’ opinions can  give members of Congress political backbones: Clinton’s public  job approval ratings polled  during the impeachment/trial remained over 70% and 66% were against removing him from office over the issue of lying and coverup of sexual misconduct.   Nixon, after release of the tapes, dropped from winning the prior election to  a 31%  job approval with 43% opposing removal from office.  During Nixon’s threatened impeachment, Democrats , the opposition party, controlled both House and Senate with significant majorities. Republican Nixon  resigned before the House could vote  to impeach because tapes were made public that confirmed his guilt. Like Nixon, Clinton's  opposition party, Republicans,  controlled both the Senate and the House though the vote even in the GOP controlled Senate fell short of the two thirds needed and he was acquitted. In Donald Trump's case, the House will be in the hands of Democrats ; the Senate's majority party is Trump's.

The current  public mood  should give the GOP shudders. It is similar to Nixon’s. The key public voter question is whether the actions of the President as charged by Congress  justifies his removal from office , which is the end result of a Senate conviction.  Trump’s  current job approval is around 40% with 42% opposed to his removal from office per a June 2018 poll.  This is  before we know much of what  Special Counsel Robert Mueller has found.

 That Democrats gained a decisive majority in the House of Representatives in  November means they have the simple majority  of votes  needed to impeach Trump  without any GOP help  At this moment it is a debatable intra party question of whether impeachment is an effective political strategy, distracting from promoting their public policy  agenda.  GOP control of the Senate would block removal of the president  at this time in any case. 

So far, public knowledge of facts implicating Trump is thin. Recently filed  court documents do indicate  business financial gain could have been his motivation to commit crimes of conspiracy/collusion and obstruction of justice.  The closest to fingering Donald Trump himself came  last week in the Michael Cohen case filings in which Cohen claimed he was instructed by the President  to break campaign finance  laws.  That  the President intended  to pay for silence of women with whom he had affairs was to protect family peace, not campaign purposes as Cohen claims, could be a reasonable  defense.   Whether the public would think lying and coverup of sexual misdeeds  alone justifies  removing  him from office is  very questionable.    It makes sense to wait for Mueller’s report and findings of Democratic dominated House  committees.
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https://www.cnn.com/2018/06/22/politics/impeach-trump-nixon-support-bill-clinton-poll/index.html
https://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton
https://en.wikipedia.org/wiki/Impeachment_process_against_Richard_Nixon
https://www.cnn.com/2018/11/29/politics/michael-cohen-guilty-plea-misleading-congress/index.html
https://www.wsj.com/articles/trump-tower-moscow-it-was-the-end-of-a-long-failed-push-to-invest-in-russia-1543532455

Footnotes: On Friday, December 7, 2018  the Southern District of New York's sentencing memo regarding Michael Cohen repeated the charge that Cohen committed a crime by arranging a method to pay off two women who knew of Trump's immoral and unfaithful conduct  for the principal purpose  that they would remain silent during the campaign. Significantly, the SDNY filing said that Cohen committed the crime under the direction of the president.  This could be very damning for the president, though he cannot be indicted for doing it. Any punishment would have to be through the impeachment process. Trump claimed immediately he was "totally cleared". .  The SDNY filings regarding Cohen said that he had been helpful, but not fully. The Mueller fillings said Coehn had been helpful on  the Russian conncection and that Cohen's jail term could be served at the same time as the judge ruled in the SDNY case.
Both the Clinton impeachment case and the Michael Cohen/Trump charges involved lying and covering up sexual misconduct.  Some Republicans voted not to convict Clinton, and all Democrats stood by their man.  Later public opinion polls showed 57% the public did not want Clinton to lose his job over the issue and they considered the impeachment harmful to the country (Gallup via Wikipedia summary)
The Mueller filings regarding Manafort pointed to lies  to the Special Counsel about his coordination with the White  House in 2018 and lies about his contacts with Konstantin Kilimnik, his associate, who had ties with Russian military intelligence, the DNC hackers.
https://www.cnn.com/2018/12/07/politics/michael-cohen-robert-mueller-donald-trump/index.html

Also see the prior blog posting 12/3/2018. The tangled web of Trump-Russian deceit.

If sexual misconduct, lying and coverup did not reach the "time does not fit the crime" in the Cllinton case , i.e. the offense was not the reason for the Senate to convict because it was not serious enough and the administration's ability to conduct business (high job approval rating), then the "high crimes" needed to be something worse.  Worse could be  treason, bribery and a serious high crime...definition is up to the House to say what it is. What would be "high" enough to warrant a Senate conviction?  Look for  proof beyond reasonable doubt of treason  (collusion, conspire) to work against US, bribery..a tit for tat like: Russia will help Trump win if he gets sanctions against Russians lifted; money lauundering, emoluments clause violations, tax evasion, and whatever else the House defines.   Another nagging problem is can a President be impeached for what he did before he took office?  The other problem: the DOJ has its own rules that a sitting president cannot be indicted for a crime, but nothing in the Constitution forbids this. If the offenses took place before the President was sworn in, he could be indicted after he left office and prosecuted, though. 

Abuse of power: another article of impeachment?

A version of this was published in the Sky Hi News, June 13-14, 2018
https://www.skyhinews.com/news/muftic-abuse-of-power-another-article-of-impeachment/

A new term is creeping into the impeachment vocabulary thanks to recent media focus.  It is abuse of power , the  second article of impeachment against Nixon in the Watergate scandal. Reminders of this are  good reasons to  take a  deeper dive into where we stand today on impeachment and what articles of impeachment could be brought  if Donald Trump were to be the subject.

 First, impeachment of Trump is unlikely but possible. What is different from Watergate  is that Democrats held the majority In both House and Senate and  controlled the House impeachment process when GOP Nixon was president.  Today, President Trump’s party is the majority in both House and Senate. Even then, it would take a vote of 2/3 of the Senate to convict even if  the  House of Representatives  turns blue in 2018 and begins the impeachment process.  Chances are slim  that Donald Trump would be impeached while the Senate is likely to be still  too closely divided to convict. The House or Senate  could gain a Democratic majority in 2018, and do damage to the GOP/Trump in 2020 by holding hearings, though.   A  damning report by Special Counsel Robert Mueller or Trump’s firing of the investigators investigating him  might even  give a GOP Congress  enough of  a backbone to proceed. So far Trump has been told by Mueller  he is a subject, but not the target of his criminal  investigations, yet. Impeachment articles are as the House defines them.  Much could  fall under the Constitution’s   high crimes and misdemeanors clause.

 Nixon resigned  before impeachment.  We still have the articles of impeachment to compare and contrast.  The  first article of impeachment against Nixon was obstruction of justice. White House tapes showed he lied about his part in the coverup.  In Trump’s case , Mueller must show  Donald Trump’s criminal intent was to obstruct the Russian investigation when he fired  FBI Director James Comey. Impeachment articles do not need  a prosecution’s criminal findings, though.  In December Trump wanted to fire Special Counsel Robert Mueller, the chief investigator investigating him, and Mueller’s boss, Rod Rosenstein, before they have made their final report. He claims often they are on a witch hunt. He has  backed off when GOP senators said that would be obvious evidence of  intent to obstruct  justice. Some witches have been found already in Trumps immediate circle and some are  Russians. Many  are under Mueller’s gun, some  already charged, indicted,  pleaded, out on bond,  or in jail

 Other possible impeachment articles authorized  in the Constitution are bribery and   treason, neither in Nixon’s articles. Treason could  be  more politely defined  as (collusion)  conspiring with a foreign government (Russia)  to help his  election and their national interests, a major focus of the Mueller investigation.  Connections between the Trump business organization and Trump himself benefiting from recent real estate loan deals with China coinciding with lifting sanctions on a Chinese telecom are raising eyebrows, not to mention violation of Constitutional emoluments clauses.

  In the Nixon case the abuse of power charge was based on his ordering  the IRS  to go after those on his enemies list, including the LA Times and their owners.  Trump’s repeated  demands  of  the semi autonomous  postmaster  to increase postal rates on Amazon, is suspected abuse  because its owner, Jeff Bezos, also owns the Washington Post, Trump’ chief media critic. Trump  has tried to argue Amazon pays   too low  postal rates which causes USPS deficits, but obvious evidence is  that deficit is caused by pension funding. Trump’s role in the denial of the Time Warner ATT merger that would have helped CNN is once again under scrutiny.  To be subject to impeachment and  prosecution,  the threat does not need to be carried out. Update June 12, 2018  Courts OK Time Warner ATT merger:https://www.politico.com/story/2018/06/12/att-time-warner-merger-approved-642333

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 To write this blog, I drew on so many source and documents, and my own research for prior posts on the impeachment procedure,  there are too many to list. However, I am particularly indebted for MSNBC’s  Rachel Maddow’s calling thoroughly documented  attention to the history of the Nixon impeachment’s article 2 in a recent broadcast and the implication of Trump’s demand on the US Postal Service

An update: Trump refuses to provide information about how he has  persoally profited during his tenure...another example of both abuse of power and thumbing his nose at the emoluments clause:
https://www.theatlantic.com/politics/archive/2017/05/trumps-company-isnt-tracking-all-the-money-it-gets-from-foreign-governments

http://money.cnn.com/2017/10/15/media/trump-jessica-rosenworcel-nbc-license/index.html

http://fortune.com/2018/05/12/rudy-giuliani-trump-att-time-warner-merger/

https://www.bloomberg.com/news/articles/2017-10-11/trump-threatens-nbc-tv-licenses-after-story-on-nuclear-buildup

BBC reports Cohen took Ukraine bribe money to arrange meeting with Trump http://www.bbc.com/news/world-us-canada-44215656

https://www.yahoo.com/news/anything-stop-foreign-government-favors-trump-043850542.html

https://www.nytimes.com/2018/04/10/us/politics/trump-sought-to-fire-mueller-in-december.html

https://criminal-law.freeadvice.com/criminal-law/violent_crimes/criminal-threats.htm

Articles of impeachment against Nixon regarding abuse of power: . ”repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice in the conduct of lawful inquiries, of contravening the law of governing agencies of the executive branch and the purposes of these agencies. ...”   

https://www.politico.com/story/2018/04/02/trump-amazon-jeff-bezos-stock-value-495803

As I noted in a prior Facebook posting that this threat against Amazon shipping rates  is really  stupid  on Trump’s part. Amazon can switch to Fed Ex and UPS with which they already have contracts avoiding the Post Office and this will spur Amazon’s stated plans to short cut all of these services by moving up the time line in establishing their own delivery service, already in the works. The only people punished by this will be us consumers and million customers of Amazon who will pay higher shipping rates or they will be absorbed by Amazon until their own service is on line or they use UPS and Fed Ex instead.  The financial loss will be USPS’.

  Full disclosure: I am the owner of a small cosmetic company which is an Amazon seller and I am a customer, too.  I live  an hour and a half way from major retailers so I depend on ecommerce.  Even when my own web ecommerce site sells the same items at a lower price also  including shipping, customers prefer to order the same ones offered  on Amazon because they trust their guarantees and policies made to Prime customers and prefer  the user friendliness  of their technology.  I imagine  Donald Trump is neither an Amazon  seller nor a customer so he has no clue other than  thinking this is a way to punish a media outlet owner by trying to damage his  other business’ investors’ stock prices. This action if implemented  is likely to end up in civil court anyway over  contract matters.

Hyping the scandals is not a game changer

The “scandals”  seem to be heaped one on top of another on the White House lately.   While there is some fire in the substance, the hyperventilated, over the top smoke  blown mightily   by the GOP   is also about the 2014 midterms. It is a political strategy that is  sound and fury likely to signify little in the end.

 The GOP seems determined to pin the problem on Pres. Obama, best if he can be found to be the actual perpetrator (and so far they have failed to do that), or at least the head of   an overreached, out of control, incompetent administration.  Therefore, the GOP hopes the President will be so wounded,  Congressional and Senatorial elections will go their way as voters become disgusted with anything tied to him.

The GOP views the  rollout of Obamacare   like a fox salivating at the possibilities of catching chipmunk in a rock garden.  They hope Obamacare will fail miserably.  They have laid the groundwork to self  fulfill their prophecy.    Whenever  some southern and Midwestern  governors and state legislatures were in  GOP control, they have refused to set up the state managed exchanges…resulting in the mistrusted feds having to do it for them and leaving a gap of millions who would not have access to expanded Medicaid or Obamacare. They have cut out funds slated  to encourage  currently uninsured into subscribe to  the subsidized exchanges,  hoping if  they built it, no one came.

Except where they have tried to sabotage the roll out, the GOP is taking a risk.  The roll out might work…because California, Colorado, and Massachusetts, and New Jersey  and Pacific Coast states are well prepared . The cost of the subsidized premiums in California have come in much lower than actuarial studies predicted.  Colorado is well ahead of the game, already testing  technology and with 17 private insurers signed on to participate.

 Where the GOP will be able to howl in protest and point to failure will be in states where they are  already  strong. All politics in electing representatives and s enators are local.  They will be preaching to their  choir,  safe  in gerrymandered non competitive  districts.    Any failures of the roll out could blowback on the GOP when the successes in other states could be contrasted with the bungling in the purposefully unprepared states.

The GOP has tried to inflate the “scandals”  by painting them as “Nixonian”.    In their zeal to try to draw  comparisons  of Obama with Nixon they  fall very flat.  Nixon himself  ordered the IRS to  audit politicians, groups and journalists on his enemies list.  It was not a case of  bungling by career service bureaucrats  and an overprotective White House staff, as it appears involved in  this current “scandal”.

 The attempt by Nixon  to hush up the Washington Post was not because the CIA or national security was  jeopardized by their reporting. The Watergate coverup was his directed attempt to cover his role in a criminal act. However, it  was AP’s and Fox’s reporting of the leak  that blew the cover off covert action against Al Qaeda in Yemen, endangering our war against terrorists, that triggered the Attorney General’s investigation.  

Nothing this year equals the Iran Contra Scandal in which the Reagan administration  skirted laws to run  Central American covert actions,  or the revenge seeking W Bush administration blowing CIA operative Valerie Plame’s cover.

As a strategy, even these more substantive  scandals have  not  changes the  party domination in the immediately following elections in the past. Economic issues were always larger factors.

So…fire away GOP.  Voters will begin asking where  is  your replacement  for Obamacare or what you will do about employment and the disappearing middle class. A GOP  blocking immigration reform will only feed  Democrats’ winning demographics.  Those are the real game changers.

For more, visit  www.mufticforumespanol.blogspot.com

This is a version of my column that will appear in the Sky Hi Daily News this week.