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Fox News Judge Warns Trump Will Soon Be Indicted -- And Explains Why

Fox News Judge Warns Trump Will Soon Be Indicted -- And Explains Why

It gives me no joy to write this piece.

Even a cursory review of the redacted version of the affidavit submitted in support of the government's application for a search warrant at the home of former President Donald Trump reveals that he will soon be indicted by a federal grand jury for three crimes: Removing and concealing national defense information (NDI), giving NDI to those not legally entitled to possess it, and obstruction of justice by failing to return NDI to those who are legally entitled to retrieve it.

When he learned from a phone call that 30 FBI agents were at the front door of his Florida residence with a search warrant and he decided to reveal this publicly, Trump assumed that the agents were looking for classified top-secret materials that they'd allege he criminally possessed. His assumptions were apparently based on his gut instinct and not on a sophisticated analysis of the law. Hence, his public boast that he declassified all the formerly classified documents he took with him.

Unbeknownst to him, the feds had anticipated such a defense and are not preparing to indict him for possessing classified materials, even though he did possess hundreds of voluntarily surrendered materials marked "top secret." It is irrelevant if the documents were declassified, as the feds will charge crimes that do not require proof of classification. They told the federal judge who signed the search warrant that Trump still had NDI in his home. It appears they were correct.

Under the law, it doesn't matter if the documents on which NDI is contained are classified or not, as it is simply and always criminal to have NDI in a non-federal facility, to have those without security clearances move it from one place to another, and to keep it from the feds when they are seeking it. Stated differently, the absence of classification — for whatever reason — is not a defense to the charges that are likely to be filed against Trump.

Yet, misreading and underestimating the feds, Trump actually did them a favor. One of the elements that they must prove for any of the three crimes is that Trump knew that he had the documents. The favor he did was admitting to that when he boasted that they were no longer classified. He committed a mortal sin in the criminal defense world by denying something for which he had not been accused.

The second element that the feds must prove is that the documents actually do contain national defense information. And the third element they must prove is that Trump put these documents into the hands of those not authorized to hold them and stored them in a non-federally secured place. Intelligence community experts have already examined the documents taken from Trump's home and are prepared to tell a jury that they contain the names of foreign agents secretly working for the U.S. This is the crown jewel of government secrets. Moreover, Trump's Florida home is not a secure federal facility designated for the deposit of NDI.

The newest aspect of the case against Trump that we learned from the redacted affidavit is the obstruction allegation. This is not the obstruction that Robert Mueller claimed he found Trump committed during the Russia investigation. This is a newer obstruction statute, signed by President George W. Bush in 2002, that places far fewer burdens on the feds to prove. The older statute is the one Mueller alleged. It characterizes any material interference with a judicial function as criminal. Thus, one who lies to a grand jury or prevents a witness from testifying commits this variant of obstruction.

But the Bush-era statute, the one the feds contemplate charging Trump with having violated, makes it a crime of obstruction by failing to return government property or by sending the FBI on a wild goose chase looking for something that belongs to the government and that you know that you have. This statute does not require the preexistence of a judicial proceeding. It only requires that the defendant has the government's property, knows that he has it and baselessly resists efforts by the government to get it back.

Where does all this leave Trump? The short answer is: in hot water. The longer answer is: He is confronting yet again the federal law enforcement and intelligence communities for which he has rightly expressed such public disdain. He had valid points of expression during the Russia investigation. He has little ground upon which to stand today.

I have often argued that many of these statutes that the feds have enacted to protect themselves are morally unjust and not grounded in the Constitution. One of my intellectual heroes, the great Murray Rothbard, taught that the government protects itself far more aggressively than it protects our natural rights.

In a monumental irony, both Julian Assange, the WikiLeaks journalist who exposed American war crimes during the Afghanistan and Iraq wars, and Edward Snowden, the former National Security Agency employee who exposed criminal mass government surveillance upon the American public, stand charged with the very same crimes that are likely to be brought against Trump. On both Assange and Snowden, Trump argued that they should be executed. Fortunately for all three, these statutes do not provide for capital punishment.

Rothbard warned that the feds aggressively protect themselves. Yet, both Assange and Snowden are heroic defenders of liberty with valid moral and legal defenses. Assange is protected by the Pentagon Papers case, which insulates the media from criminal or civil liability for revealing stolen matters of interest to the public, so long as the revealer is not the thief. Snowden is protected by the Constitution, which expressly prohibits the warrantless surveillance he revealed, which was the most massive peacetime abuse of government power.

What will Trump say is his defense to taking national defense information? I cannot think of a legally viable one.

Reprinted with permission from Creators.

freedom of speech

Fox News Judge: Trump Is Destroying Freedom In Portland

Two weeks ago, this column offered a brief history of the freedom of speech in America. The essence of the column was that all public speech is lawful when there is time for more speech to challenge it and that the remedy for hate speech is not censorship, but more speech.

Last week, this column addressed the unconstitutional behavior of federal agents in Portland, Oregon, most of whom are out among peaceful demonstrators interfering with free speech, travel and assembly.

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Fox Judge: Guilty Trump Was Acquitted, Not Exonerated

Fox Judge: Guilty Trump Was Acquitted, Not Exonerated

“The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.” — George Orwell, 1984

The Senate trial of President Donald Trump ended not with a bang but a whimper. What different outcome could one expect from a trial without so much as a single witness, a single document, any cross-examination or a defendant respectful enough to show up?

Law students are taught early on that a trial is not a grudge match or an ordeal; it is a search for the truth. Trial lawyers know that cross-examination is the most effective truth-testing tool available to them. But the search for the truth requires witnesses, and when the command from Senate Republican leaders came down that there shall be no witnesses, the truth-telling mission of Trump’s trial was radically transformed into a steamroller of political power.

And in its wake is a Congress ceding power to the presidency, almost as if the states had ratified a constitutional amendment redefining the impeachment language to permit a president to engage in high crimes and misdemeanors so long as he believes that they are in the national interest and so long as his party has an iron-clad grip on the Senate.

When the House of Representatives voted in favor of two articles of impeachment against Trump, it characterized his lawlessness as contempt of Congress and an abuse of power. The contempt of Congress consisted of Trump’s orders to subordinates to disregard congressional subpoenas. Both Republican- and Democratic-controlled Houses of Representatives have deemed such presidential instructions in an impeachment inquiry as impeachable per se.

The abuse allegations address Trump’s solicitation of assistance for his reelection campaign from a foreign government by holding up the release of $391 million in military aid to the same foreign government. These funds were congressionally appropriated and ordered to be paid by legislation that Trump had signed into law.

Federal law prohibits such solicitation as criminal and prohibits government officials from seeking personal favors in return for performing their governmental duties. The latter is bribery.

Because the solicitation that Trump committed was a crime against the government, it is among those referred to when the Constitution was written as a “high” crime. High crimes are a constitutional basis for impeachment, along with bribery and treason.

The evidence that Trump did this is overwhelming and beyond a reasonable doubt, and no one with firsthand knowledge denied it. Numerous government officials recounted that the presidential leverage of $391 million for a personal political favor did occur and the government’s own watchdog concluded that it was indisputably unlawful.

The favor Trump sought was an announcement by the Ukrainian government of the commencement of an investigation of Trump’s potential presidential foe, former Vice President Joe Biden.

While the Senate was hearing House prosecution managers argue their case, and Trump’s lawyers challenging those arguments, The New York Times revealed that John Bolton, Trump’s former national security adviser, had authored an as yet unpublished book demonstrating that the House case against Trump was true. True, because, unlike the senators who shut their eyes and ears at Trump’s trial, Bolton saw for himself the presidential tit-for-tat machinations that the House had alleged and, if proven, were criminal and impeachable.

The Times also revealed the existence of 24 emails sent by Trump aides manifesting indisputably his lawless behavior. But they are secret.

At the same time, two signal events occurred in the trial. The first was an argument by Trump’s lawyers that every president seeking reelection believes his victory will be in the national interest and thus all presidential efforts toward that victory are constitutional and lawful.

This morally bankrupt, intellectually dishonest argument — which effectively resuscitates from history’s graveyard Richard Nixon’s logic that “when the president does it, that means that it is not illegal” because the president is above the law — must have resonated with Senate Republican leaders. They coerced their Senate Republican colleagues into embracing the view that — since the president did not want Bolton to testify or White House emails to be revealed — they must bar all witnesses and documents.

The second signal event was shameful. It was the 51 to 49 Senate vote to bar witnesses and documents from the trial.

Isn’t it odd that a president who clamors for exoneration, who claimed loud and long that he committed no crime and did no wrong, who insisted that his request to the Ukrainian president to seek dirt on Biden in return for American financial assistance was “perfect,” would command the members of his own party to block testimony adverse to him — rather than hear it, cross-examine it, challenge it and thereby obtain the exoneration on the merits that he seeks?

Do innocent people behave this way?

If Trump really believes he did not commit any crimes and any impeachable offenses, why would he orchestrate blocking evidence? And who — having taken an oath to do “impartial justice” — would close their eyes to the truth? How could such a marathon of speeches possibly be considered a trial?

Trump will luxuriate in his victory. But the personal victory for him is a legal assault on the Constitution. The president has taken an oath to preserve, protect and defend the Constitution. Instead, he has trashed it. How? By manipulating Senate Republicans to bar firsthand evidence and keep it from senatorial and public scrutiny, Trump and his Senate collaborators have insulated him and future presidents from the moral and constitutional truism that no president is above the law.

Somewhere, Richard Nixon is smiling.

Fox Judge Sees ‘Ample Evidence’ To Remove Trump

Fox Judge Sees ‘Ample Evidence’ To Remove Trump

I don’t blame President Donald Trump for his angst and bitterness over his impeachment by the House of Representatives. In his mind, he has done “nothing wrong” and not acted outside the constitutional powers vested in him, and so his impeachment should not have come to pass. He believes that the president can legally extract personal concessions from the recipients of foreign aid, and he also believes that he can legally order his subordinates to ignore congressional subpoenas.

Hence, his public denunciations of his Senate trial as a charade, a joke and a hoax. His trial is not a charade or a joke or a hoax. It is deadly serious business based on well-established constitutional norms.

The House of Representatives — in proceedings in which the president chose not to participate — impeached Trump for abuse of power and contempt of Congress. The abuse consists of his efforts to extract a personal political “favor” from the president of Ukraine as a precondition to the delivery of $391 million in military aid. The favor he wanted was an announcement of a Ukrainian investigation of former Vice President Joseph R. Biden and his son Hunter.

The Government Accountability Office — a nonpartisan entity in the federal government that monitors how the feds spend tax revenue — has concluded that Trump’s request for a favor was a violation of law because only Congress can impose conditions on government expenditures. So, when the president did that, he usurped Congress’ role and acted unlawfully.

But, did he act criminally; and is it constitutionally necessary for the House to have pointed to a specific federal crime committed by the president in order to impeach him and trigger a Senate trial?

Here is the backstory.

The Constitution prescribes the bases for impeachment as treason, bribery or other high crimes and misdemeanors. However, this use of the word “crimes” does not refer to violations of federal criminal statutes. It refers to behavior that is so destructive of the constitutional order that it is the moral equivalent of statutory crimes.

For example, as others have suggested, if the president moved to Russia and ran the executive branch from there, or if he announced that Roman Catholics were unfit for office, he would not have committed any crimes. Yet, surely, these acts would be impeachable because, when done by the president, they are the moral equivalent of crimes and are so far removed from constitutional norms as to be impeachable.

In Trump’s case, though the House chose delicately not to accuse the president of specific crimes, there is enough evidence here to do so. Federal election laws proscribe as criminal the mere solicitation of help for a political campaign from a foreign national or government. There is no dispute that Trump did this. In fact, the case for this is stronger now than it was when the House impeached him last year. Since then, more evidence, which Trump tried to suppress, has come to light.

That evidence consists of administration officials’ emails that were obtained by the media pursuant to the Freedom of Information Act. Those emails demonstrate conclusively that Trump ordered a halt on the release of the $391 million within minutes of his favor request, and the aid sat undistributed until congressional pressure became too much for Trump to bear.

This implicates two other crimes. One is bribery — the refusal to perform a government obligation until a thing of value is delivered, whether the thing of value — here, the announcement of a Ukrainian investigation of the Bidens — arrives or not. The other is contempt of Congress.

If the request for the announcement of an investigation of the Bidens manifested “nothing wrong” as Trump has claimed, why did he whisper it in secret, rather than order it of the Department of Justice?

When the House Select Committee on Intelligence sought the emails unearthed by the press and then sought testimony from their authors, Trump thumbed his nose at the House. Instead of complying with House subpoenas or challenging them in court, Trump’s folks threw them in a drawer. Earlier this week, his lawyers argued that those actions were lawful and that they imposed a burden on the House to seek the aid of the courts in enforcing House subpoenas.

Such an argument puts the cart before the horse. Under the Constitution, the House has “the sole power of impeachment.” The House does not need the approval of the judiciary to obtain evidence of impeachable offenses from executive branch officials.

We know that obstruction of Congress is a crime. Just ask former New York Yankees pitching great Roger Clemens, who was tried for it and acquitted. We also know that obstruction of Congress — by ordering subordinates not to comply with House impeachment subpoenas — is an impeachable offense. We know that because the House Judiciary Committee voted to charge President Richard Nixon with obstruction of Congress when he refused to comply with subpoenas. And the full House voted for an article of impeachment against President Bill Clinton when he refused to surrender subpoenaed evidence.

Where does all this leave us at the outset of Trump’s Senate trial?

It leaves us with valid, lawful, constitutional arguments for Trump’s impeachment that he ought to take seriously. That is, unless he knows he will be acquitted because Republican senators have told him so. Whoever may have whispered that into his ear is unworthy of sitting as a juror and has violated the oath of “impartial justice” and fidelity to the Constitution and the law.

What is required for removal of the president? A demonstration of presidential commission of high crimes and misdemeanors, of which in Trump’s case the evidence is ample and uncontradicted.

Fox News Judge: Why Trump Must Be Impeached

Fox News Judge: Why Trump Must Be Impeached

The rule of law is a cornerstone of American democracy and is integral to the Constitution. It stands for the principles that no person is beneath the laws’ protections. No person is above the laws’ requirements. And the laws apply equally to all people. That is the theory of the rule of law.

In practice, as the power of the federal government has grown almost exponentially since 1789 and the power of the presidency has grown with it, presidents have claimed immunity from the need to comply with the law while in office. They have also claimed immunity from the consequences of the failure to comply with the law.

That immunity claim is predicated upon the belief that if the president committed a criminal offense and was charged and prosecuted while in office, the diversion of his energies to his defense would interfere substantially with his ability to do his job, which could jeopardize national security.

When the Department of Justice looked at the law of presidential prosecutions, it produced three scholarly reports during the Richard Nixon and Bill Clinton impeachment investigations. Two of those reports concluded that no president could be charged or prosecuted while in office.

Those two reports were relied upon by Attorney General William Barr when he brushed aside the findings of special counsel Robert Mueller, who found enough evidence to charge President Donald Trump with obstruction of justice after Trump repeatedly attempted to interfere with Mueller’s investigation by ordering subordinates to lie to FBI investigators or to falsify government documents that investigators sought.

Barr did not address the merits of Mueller’s findings. In Barr’s view, no matter what the president did — even if anyone else who did the same would have been prosecuted — the disruption to the government would not be worth the benefits of a presidential prosecution.

The third scholarly DOJ report concluded that the president is not above the law and that if sufficient evidence of presidential lawbreaking does exist, he ought to be charged. However, the prosecution should be deferred until he leaves office.

All three DOJ reports agreed that if the president’s behavior, though uncharged, nevertheless amounted to “high crimes and misdemeanors,” he should be impeached.

High crimes and misdemeanors is a basis for impeachment, the constitutional remedy for presidential behavior that subverts our democratic institutions. In Trump’s case, we have undisputed evidence that he abused his power by inviting a foreign government to interfere in the 2020 presidential election and then compounded this by directing subordinates to refrain from giving congressionally commanded evidence of his behavior.

It is undisputed that Trump withheld the delivery of the $391 million in military aid to Ukraine that Congress authorized and ordered and that Trump himself signed into law. He said he withheld that aid because he first wanted “a favor” from the president of Ukraine. The favor, requested by others on Trump’s behalf, was the announcement of a Ukrainian government criminal investigation of Trump’s potential political adversary, former Vice President Joe Biden. In the language of the streets, this is a shakedown; it sought to enhance Trump’s personal political needs and bears no relationship to American foreign policy.

That presidential behavior implicates two crimes. One is the federal prohibition on soliciting campaign aid from a foreign government — whether the aid arrives or not. It did not.

The other crime is bribery, which is the exploitation of public duties for personal gain. Bribery consists of the intentional refusal to perform a required public duty — here, releasing the $391 million to Ukraine — until a personal thing of value — here, the announcement of the Ukrainian investigation of Biden — arrives. The crime of bribery is complete when the thing of value is solicited, whether it arrives or not. It did not.

The other crimes implicated by Trump’s behavior took place after he was accused of the first two. Then, he directed his subordinates to disregard congressional subpoenas, lawfully issued and validly served, which sought testimony, documents and electronic records of the president’s behavior.

We know from the impeachment charges recommended by the House Judiciary Committee against Nixon and voted by the House of Representatives against Clinton that obstructing the constitutional duty of Congress is impeachable. We also know from the Roger Clemens case, in which he was prosecuted, and acquitted, for obstruction of Congress by allegedly lying to a House committee, that obstruction can be criminal.

Because Trump declined to participate in the House investigation that resulted in the construction of the articles of impeachment against him — except for his tweets and bluster and the Republicans’ personal attacks on House Democratic committee chairs — the facts underlying the charges against Trump are essentially uncontested.

Everyone who believes in the rule of law should be terrified of a president who thinks and behaves as if it does not apply to him. As the DOJ has stated repeatedly, impeachment is the proper constitutional remedy for that.

James Madison, the author of the Constitution and the Bill of Rights, feared a government that was strong enough to protect the people would become too strong for the people to control. It would use its powers not for the nation’s betterment but its own. When the government fails to control itself, he argued, when the president becomes a law unto himself by violating the laws that pertain to all others, the remedy is impeachment.

The framers’ greatest fear was a president who would unlawfully put his own needs above the nation’s or who would drag a foreign government into our domestic affairs. Trump has tried to do both and threatened to repeat those attempts. That’s why the remedy of impeachment is acutely needed.

Fox Judge Shreds Trump Defenders’ Arguments

Fox Judge Shreds Trump Defenders’ Arguments

“Well, when the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-1994)

As public hearings on impeachment begin this week, we will see the case for and the case against impeaching President Donald Trump. The facts are largely undisputed, but each side has its version of them.

The Democrats will argue that in his July 25, 2019 telephone call with his Ukrainian counterpart, seen in the context of months of negotiations between American and Ukrainian diplomats, Trump made it known that if the Ukrainian government wanted the $391 million in military and financial aid that Congress authorized and ordered, it first must offer, or announce that it was seeking, dirt on his likely 2020 political opponent, former Vice President Joe Biden or his son Hunter. That implicates a presidential violation of two federal statutes: One is the prohibition of solicitation of campaign help from a foreign government, and the other is the prohibition of bribery.

Federal election laws prohibit as criminal the mere solicitation of foreign help for a federal political campaign, whether the aid arrives or not. Federal law also prohibits and defines as bribery the intentional withholding or offering to withhold the performance of an official duty until a thing of value arrives, whether the thing of value arrives or not. Solicitation of foreign campaign assistance and bribery are the rare federal crimes that are defined by an attempt or an offer to commit them, even if they are never consummated.

All this is magnified, the Democrats will argue, by the immediacy of Ukraine’s financial and military needs. Since 2014, Ukraine has been fighting a bloody war with Russia, resulting in the deaths of 13,000 Ukrainians. In that year, Russia invaded the Ukrainian province of Crimea, which Russia continues to occupy. Since the end of World War II, the stated American policy toward Russia has been to resist and to help allies resist its territorial expansion.

The Democrats will also argue that Trump’s orders to executive branch employees to dishonor congressional subpoenas constitute the crime of obstruction of Congress. This is what New York Yankees pitching great Roger Clemens was tried for when he was acquitted of lying to Congress about the contents of his urine. All of these crimes — solicitation, bribery and obstruction — are subsumed under the constitutional rubric of high crimes and misdemeanors or bribery. These constitute two of the three permissible bases for impeachment.

None of these crimes requires pressure, coercion or success. Congress considers them so odious to our system that merely offering to commit them constitutes guilt. Presidents Richard Nixon and Bill Clinton both were charged with obstruction of Congress by ordering subordinates to refuse to cooperate with congressional investigators — even though many of them did cooperate.

The Republicans will argue that under the Constitution, the president — not Congress — sets the foreign policy of the nation. In foreign relations, the Supreme Court has ruled, Congress is limited to declaring war, appropriating funds, ratifying treaties and confirming ambassadors. All else foreign is presidential. Thus, whatever Trump wanted of the Ukrainian government, unless there is proof of evil intent, he was free to ask for. They will argue that there is no evidence of evil intent such as self-dealing or harming an ally or frustrating a congressional purpose.

Republicans will also argue that the impeachment process is irretrievably compromised by the personal involvement, partisan advocacy and secretive methods of the chairman of the House Select Committee on Intelligence, Rep. Adam Schiff, D-Calif. From this, they will argue that Schiff, and the evidence he developed, should be excluded from the proceedings. As well, to House Republicans, the crimes of illegal solicitation, bribery and obstruction of Congress require proof of Trump’s guilty state of mind, and such proofs are lacking.

Stated differently, Republicans will contend that because the president was ignorant of federal law and ignorant of his constitutional obligations to spend money as and when Congress directed, he cannot be punished for what he did not know.

This is dangerously close to the Nixonian view of the American presidency — that the president can do no wrong. Of course, Republicans will not state this plainly, as the lessons of Watergate and Nixon’s resignation have soundly and universally repudiated that view.

Finally, Republicans will argue that impeachment cheats democracy. Here they are correct. However, that is not an argument against impeachment. It is an argument against history. James Madison — the scrivener of the Constitution — intentionally included anti-democratic features in the Constitution to preserve personal liberty from the tyranny of a congressional majority and the tyranny of presidential ignorance. The whole purpose of an independent judiciary, for example, is to be anti-democratic — to preserve the life, liberty and property of the minority from the tyranny of popular laws. And the whole purpose of impeachment is to correct an election after the elected person has demonstrated that he is unfit for office.

The House is operating under rules adopted in 2015, when Republicans ran the House. Schiff is no more secretive about or partisan against the president than my old boss, then-Judiciary chair Rep. Peter Rodino, was toward Nixon or then-Judiciary chair Rep. Henry Hyde was toward Clinton. Both acquired evidence from secret proceedings and both decided to impeach before any public hearings were held.

Impeachment is political, not juridical. Former President Gerald R. Ford was essentially right when he argued that under the Constitution impeachable offenses are whatever a majority of the House says they are — for Nixon, covering up a break-in; for Clinton, lying about consensual sex; for Trump, solicitation, bribery and obstruction.

Whose behavior was arguably the gravest?

Fox News Judge: Impeachment Is Lawful, Unlike Soliciting Foreign Election Help

Fox News Judge: Impeachment Is Lawful, Unlike Soliciting Foreign Election Help

Things are seldom what they seem,

Skim milk masquerades as cream…

—Gilbert and Sullivan, “HMS Pinafore”

 

Last week found Republicans in Congress complaining loud and long that the House Permanent Select Committee on Intelligence, along with the House Oversight and Foreign Affairs committees, all bipartisan and under the leadership of Rep. Adam Schiff, were violating the rules of the House of Representatives by interviewing witnesses about impeachment behind closed doors. They derided Schiff’s hearings as a “secret impeachment.”

President Donald Trump called the hearings a hoax. When some pointed out that the initial round of government interviews of witnesses is always conducted behind closed doors to facilitate candor, Senate Republicans supported the president and condemned the House process. Nevertheless, the House rules, which were adopted in 2015, when Republicans had the majority, clearly authorize the process Schiff is utilizing.

Not to be overshadowed by their Senate counterparts in their anger over this process, about 30 House Republicans, not on the interviewing committees, physically stormed the Intelligence Committee hearing room last Wednesday morning and occupied it so as to bar the scheduled interviews. By midafternoon, they had tired of their stunt and peacefully departed.

Last Friday, in response to a rejected subpoena the House Judiciary Committee sent to the Department of Justice, a federal court ruled that the House committees’ preliminary impeachment inquiries are lawful and constitutional, and ordered the DOJ to comply with the congressional subpoena it received and turn over secret grand jury transcripts to House investigators. This is a delicious irony since the DOJ serves more subpoenas on Americans than any government entity, and here it got a dose of its own medicine.

The White House continued to argue that the impeachment investigation is illegitimate and unconstitutional because it has not been authorized by the full House. The president called Republicans who support impeachment “human scum.” On Sunday evening, the president invited the ringleader of the disruption of the House committee interviews to his box at the fifth game of the World Series.

Early this week, Speaker of the House Nancy Pelosi, giving Republicans what they asked for, announced that the full House will vote on initiating an impeachment investigation of the president by the end of this week.

What’s going on here?

Congressional Republicans should be careful what they ask for. Their defense of the president has addressed process, not proof. The proof is largely undisputed, except by the president himself. It consists of admissions, testimony and documents, which show that Trump sought to induce the government of Ukraine to become involved in the 2020 presidential election.

Specifically, Trump held up $391 million in American military hardware and financial aid to Ukraine — which is at war with Russia after the Russian seizure and continual occupation of what was until 2014 a Ukrainian province — until Ukrainian prosecutors commenced a criminal investigation of former Vice President Joe Biden and his son, Hunter.

That is a mouthful of facts to swallow in one bite, but the legal implications are straightforward and profound. Whether one agrees with federal law or not, it is a crime to solicit assistance for a federal campaign from a foreign government. As well, the crime of bribery consists of a government official refraining from performing a legal duty until a thing of value is delivered to him.

Trump admits he held up the $391 million. He admits he asked for a favor from the Ukrainian president. And he admits that the favor was to dig up dirt on Joe Biden and his son. He even gilded the lily by publicly asking the Chinese government to investigate Biden.

Enter Attorney General William Barr. After knowledge of the presidential holdup of the $391 million in aid to Ukraine became public, the president asked Barr for a formal legal opinion that dirt on a political opponent is not a thing of value.

Barr had his researchers and writers in the Office of Legal Counsel oblige. That legal opinion, which Trump has touted as a form of exoneration, has been so widely mocked in legal and political circles — because dirt on an opponent is the most valuable commodity for a political campaign, and candidates pay dearly for it — that congressional Republicans have stopped referring to it. They know better.

The president was just investigated by Robert Mueller and his crew upon the allegation that he and his campaign unlawfully collaborated with the government of Russia to help him win the 2016 election. That investigation found some evidence of collaboration but not enough to indict. And now, incredibly, Trump has admitted seeking to involve the government of Ukraine in the 2020 presidential election.

One can see that the reason Republicans have been attacking the process of impeachment is largely because there is no credible defense to the proof of impeachment. That proof has been hiding in plain sight — in the president’s public words and the context to be provided by witnesses — and will soon be revealed.

Why and how will all this be revealed? Enter Nancy Pelosi. The “why” will be answered this week by the House vote to commence an impeachment investigation formally; it’s legally unnecessary but politically devastating to the Republicans’ process arguments. The “how” will be answered when all this — the testimony of now interviewed and debriefed witnesses — goes public.

With the process soon to be as Republicans have demanded, and with the proof of impeachable offenses plain to see, to what will the president’s allies resort as a defense? They will claim that that the federal crimes of soliciting campaign assistance from foreign governments and bribery aren’t impeachable offenses and that Trump was misunderstood because he exaggerates all the time and often doesn’t mean what he says.

And then the American public will decide if all this is skim milk or cream.

Fox Judge: Mocking Constitution Makes Trump Unfit For Office

Fox Judge: Mocking Constitution Makes Trump Unfit For Office

In nearly three years in office, President Donald Trump has spent federal dollars not authorized by Congress, separated families and incarcerated children at the Texas/Mexico border in defiance of a federal court order, pulled 1,000 American troops out of Syria ignoring a commitment to allies and facilitating war against civilians, and sent 2,000 troops to Saudi Arabia without a congressional declaration of war.

He has also criminally obstructed a Department of Justice investigation of himself but escaped prosecution because of the intercession of an attorney general more loyal to him than to the Constitution.

At the outset of his presidency, Trump took the presidential oath of office promising that he would faithfully execute his obligation to preserve, protect and defend the Constitution. James Madison, the scrivener of the Constitution, insisted that the word “faithfully” be in the presidential oath and that the oath itself be in the Constitution to remind presidents to enforce laws and comply with constitutional provisions, whether or not they agree with them, and to immunize the oath from congressional alteration.

Earlier this week, Trump referred to a clause in the Constitution as “phony,” and he thereby implied that he need not abide it nor enforce it, notwithstanding his oath.

Here is the backstory.

The Constitution was written in Philadelphia during the summer of 1787. The framers — the 55 state delegates to the Constitutional Convention who authored the Constitution — had just completed fighting the Revolutionary War, which had ended six years earlier.

While Americans universally revere the American Revolution today, that was not the case at the time it was fought. Professor Bernard Bailyn of Harvard, whose 75 years of professional study of the colonial mindset is without peer, has argued that in the 1780s about one-third of the colonists supported the revolution, while around the same number favored staying in the British empire, and about the same number were indifferent.

By 1787, according to Bailyn, there were substantial groups of wealthy persons in America who retained their loyalty to the British king, and there were government officials here who had originally obtained their jobs by royal appointment. Bailyn has documented fatal violence occurring on American soil between Americans loyal to the king and Americans loyal to the principles of the Declaration of Independence, after the British surrender in 1781 and even after the signing of the Treaty of Paris in 1783.

All of this was known to the framers, who feared the resurgence of British influence in the American government. Their fears centered around the corruption induced by titles of nobility — which in those days were often accompanied by lands and income — and gifts of money or real estate. In order to allay those fears and assure Americans that officials in the new federal government would be immune from foreign seduction, the framers included the Emoluments Clause in the Constitution.

That clause prohibits all federal officials from receiving titles of nobility and any gift, income or fee “of any kind whatever” from a foreign government. The Constitution is known for phrases of generality and elasticity, the meanings of which are often capable of reinterpretation by modern standards. This is not so for the Emoluments Clause. It originally presented and continues to present an absolute prohibition of the receipt of anything of value by a federal government officeholder from a foreign government.

Last week, Mick Mulvaney, the president’s acting chief of staff, announced a novel interpretation of this clause contending that it only prohibited “profits” to federal officeholders from foreign governments. By that interpretation, Mulvaney announced, Trump was able to offer a resort in south Florida owned substantially by a family corporation he controls as the host of his next meeting of G-7 — a group that includes heads of government from six foreign countries — so long as the resort did not earn a profit from the gathering.

After a weekend of torrential criticism, Trump announced that he had changed his mind and said he would not host the G-7 meeting at the Miami area resort. Yet, in the process of doing so, he characterized the Emoluments Clause as “phony.”

Who knows what he meant by phony? The clause is in the Constitution and it means what it says. Yet, whatever Trump meant by phony, it constituted at least a disparagement of the Constitution he has sworn to uphold and at worst a threat to ignore clauses he can disparage.

This is most unusual and potentially dangerous, and it raises the question: Can the president lawfully enforce only the clauses of the Constitution with which he agrees and ignore those with which he disagrees? In a word: No.

The doctrine of the separation of powers — which is the backbone of the Constitution — states that Congress writes the laws, the president enforces them, and the courts interpret them. It also offers that the governmental roles of the three branches cannot be intermingled or traded without doing violence to the personal liberties that the separation was intended to secure.

If the president could pick and choose which laws to enforce and which parts of the Constitution to ignore, he effectively would be deciding what the laws mean — a judicial function — and which laws have vitality and which do not — a congressional function.

Trump has become known for forceful and often tasteless banter. He publicly calls people crude names, uses foul language and sends dog whistles of lawless behavior to much of his base. All that is a question of free speech, personal taste and political risk.

But threats to ignore parts of the Constitution are not matters of speech, taste or risk. They reveal character traits that question Trump’s fitness for office.

Fox Judge Deems Impeachment Process To Be Fair And Constitutional

Fox Judge Deems Impeachment Process To Be Fair And Constitutional

Last week, the White House legal counsel wrote to congressional leaders stating President Donald Trump’s legal views of the impeachment investigation now being conducted by the House of Representatives. The essence of Pat Cipollone’s letter argued that the impeachment investigation is illegitimate, unconstitutional and unfair.

The illegitimacy argument contended that since the House has yet to vote to authorize an investigation of the president, its committees lack subpoena power. The unconstitutional argument offered that since impeachment seeks to overturn a valid election, it is a thinly veiled coup and thus is in violation of the Constitution. And his unfairness argument states that the president is entitled to due process at every stage of the impeachment proceedings.

These are valid political arguments. But as legal offerings, they are profoundly misguided. Here is the backstory.

The Constitution gives the “sole power of impeachment” to the House of Representatives. Because this is an unambiguous delegation of power emanating directly from the Constitution, no person or other branch of government may constitutionally interfere with or frustrate it. Thus, witnesses who testify before any House inquiry on impeachment — such as the one now being conducted by the House Permanent Select Committee on Intelligence — cannot claim any privilege, other than those that also come directly from the Constitution.

So, if former New York City Mayor Rudy Giuliani, who has been conducting a secret shadow foreign policy with Ukraine at the president’s request — during which it appears he has represented Trump’s personal interests to the government of Ukraine and Ukrainian interests to the Trump administration — were to reject a House subpoena or claim the attorney-client privilege, he would fail.

The attorney-client privilege is grounded in a court rule, adopted by Congress, and thus it has the force of legislation. It permits clients to silence their lawyers about communications between them. Its sister privilege — the work product doctrine — also comes from a court rule, and it permits clients to keep secret certain documents prepared in furtherance of those legal communications.

But all legislation is subject to the Constitution and is subordinate to it. Thus, given the House’s “sole power,” any legislation interfering with the exercise of that power would become moot. Stated differently, Giuliani cannot constitutionally avoid a subpoena or assert the attorney-client privilege before a House committee, and could be jailed for doing so.

Can a House committee on its own issue a valid and enforceable subpoena? Yes, it can. House rules permit that and the Constitution provides that the House — just like the Senate — writes its own rules. The president may not care for the House rules, but there is no appeal from them. The particular rule in question — the committee power to issue subpoenas without a full House vote — came about when Republicans controlled the House.

Impeachment is always constitutional if it originates in the House and if its basis is arguably for treason, bribery or other high crimes and misdemeanors. The “sole power” language enables the House to use the legal tools available to it — subpoenas, compelled testimony and other investigatory tools — to decide if the president has committed impeachable offenses and, if so, whether a case against him can or should be proven.

The manner of making such decisions — what is the quality of the evidence, does it come from credible witnesses, does it constitute impeachable behavior — are law enforcement-like decisions that are always made in secret. When a prosecutor and investigators interrogate a witness or listen to a victim, this is never done in public to enhance privacy, encourage candor and permit prosecutors to exclude witnesses who bring more baggage than evidence.

Stated differently, House rules permit inquiries in secret of witnesses who have knowledge of alleged impeachable offenses, and no one may interfere with the inquiry or refuse to comply with a lawful demand from it.

None of what I have written above is novel and all of it is based on the Nixon and Clinton models and a fair reading of the Constitution. Impeachment is no more a coup than a reelection defeat is. Elections — when conducted according to law, like impeachments conducted according to House rules — are lawful, no matter the outcome. A coup is never lawful, no matter the outcome.

All of this leads to the question: Is the impeachment process fair? The short answer is: The impeachment process is whatever the House says it is. The Constitution guarantees due process when one’s life, liberty or property are at stake. None of those is at risk to Trump in the present impeachment inquiry. Hence the demands of the White House legal counsel for the traditional adversarial system presided over by a neutral judge are based on the president’s wishes, not on any due process or other known constitutional standard.

The due process Trump seeks — notice, hearing, fairness, counsel, cross-examination, confrontation, neutral judges — is only relevant during a trial. The House does not conduct trials; the Senate does. There and only there — if we get there — will the president have his due process rights.

The whole purpose of impeachment is to undo an election because of a strong national and congressional consensus that the president’s mental state or official behavior is the literal, moral, or legal equivalent of high crimes and misdemeanors; and thus he is utterly unfit for office.

The president refused to deliver congressionally authorized and ordered military and financial aid to an ally threatened with Russian invasion until the ally’s government performed a presidentially requested favor for his reelection campaign — a favor that is unlawful to ask for. Is it an impeachable offense?

Under the Constitution, it is if the House says it is.

Fox Judge: Trump Attacks His Own Presidency

Fox Judge: Trump Attacks His Own Presidency

The House of Representatives has begun to gather evidence in an effort to determine if President Donald Trump has committed impeachable offenses. The Constitution defines an impeachable offense as “treason, bribery, or other high crimes and misdemeanors.” The president need not have committed a crime in order to be impeached, but he needs to have engaged in behavior that threatens the constitutional stability of the United States or the rule of law as we have come to know it.

Has Trump committed any impeachable offenses?

A CIA agent formerly assigned to the White House — and presently referred to as the whistleblower — has brought to the attention of the Director of National Intelligence a July 25, 2019, telephone conversation that Trump had with Ukraine’s President Volodymyr Zelensky. That conversation manifested both criminal and impeachable behavior.

The criminal behavior to which Trump has admitted is much more grave than anything alleged or unearthed by Special Counsel Robert Mueller, and much of what Mueller revealed was impeachable.

What has Trump admitted to?

The whistleblower’s revelation caused the White House to release a near-verbatim summary of the conversation between the two presidents. By releasing it, Trump has admitted to its accuracy. In it, Trump asked Zelensky for dirt on former Vice President Joe Biden, who at this writing is Trump’s likely Democratic opponent in the 2020 presidential election.

Trump also admits to holding up $391 million in aid to Ukraine — $250 million in the purchase of already approved and built military hardware and $141 million in a congressionally authorized grant. This is aid that Trump’s own secretaries of state and defense, his own director of national intelligence and director of the CIA, and his own national security council unanimously asked him to release.

He has also admitted to accusing the as yet publicly unnamed whistleblower of treason, and suggesting that he and those who have helped him are spies and ought to be treated as spies were in “the old days” (his phrase) — that is, by hanging.

His allusions to violence are palpably dangerous. They will give cover to crazies who crave violence, as other intemperate words of his have done. His words have already produced offers of “bounties” in return for outing and finding the whistleblower. Earlier this week, he suggested that his impeachment would produce a second American Civil War. This language is a dog whistle to the deranged.

All of Trump’s admissions need to be taken in context. In 2014 and 2015, Russian troops invaded Crimea, then a province of Ukraine. They took over government buildings and held a sham referendum, which had been declared unconstitutional under Ukrainian law by Ukrainian courts. The troops dispersed the courts, and the Russian government annexed Crimea. What was a part of Ukraine five years ago today houses Russian troops and Russian tanks eyeing Kiev, Ukraine’s capital.

It is easy to see why all of the senior members of the Trump administration involved in security — all of them — advised the president to release the military hardware, which was ready to be shipped, and the foreign aid, which Congress had appropriated. He rejected that advice. Instead, in the Zelensky phone call, he told the Ukrainian president that he needed a personal “favor.” The clear unmistakable inference is that the $391 million in aid would be held up until the favor was delivered. The favor he sought was dirt on Joe Biden.

Now, back to impeachment.

Federal law defines as criminal the solicitation of aid — anything of value — for a political campaign from a foreign national or foreign government, whether the thing of value arrives or not. It also prohibits bribery and attempted bribery, which is defined as withholding the performance of an official duty conditioned upon the personal receipt of a thing of value, whether the thing of value arrives or not. It further prohibits intimidating witnesses, which is defined as the use of language designed to deter witnesses from giving testimony, whether the intimidation is successful or not.

The whistleblower has also alleged that senior administration officials attempted to dissuade Trump from asking for the favor from Zelensky. His sources relate and reporting now reveals that a debate took place in the White House before the telephone call was made. Should the aid be held up? Should the president ask for dirt about Biden from his Ukrainian counterpart? If Biden did anything criminal, shouldn’t the DOJ get involved? Should the transcript of the Trump/Zelensky phone call be hidden? Was the president warned in advance that asking Zelensky for a personal campaign benefit could be criminal or impeachable? Does anyone in the White House tell the president what he doesn’t want to hear?

Can the president put his own needs and wants above the nation’s? In a word: No.

He has taken an oath to enforce federal law, not break it. He cannot lawfully impose conditions — conditions that benefit him alone — as a prerequisite to compliance with the law. Is violating campaign finance law by involving a foreign government in an American presidential campaign an impeachable offense? Yes, it is. The expressed intention of those who wrote the Constitution and those who wrote the campaign finance laws 200 years later — and the lesson of the post-2016 election and Mueller-investigated angst in America — was to keep foreign governments out of the American political system.

For heaven’s sake, Trump was just investigated by Mueller for two and a half tumultuous years for allegedly using 127 campaign telephone calls to bring the Russian government into the 2016 election and now he has attempted in one phone call to bring the Ukrainian government into the 2020 election! Does he understand the laws he has sworn to uphold?

It was to remedy just such reckless, constitutionally destructive behavior that impeachment was intended.

Fox News Judge Blasts Trump’s ‘Brazen Acts Of Corruption’

Fox News Judge Blasts Trump’s ‘Brazen Acts Of Corruption’

Last week, media outlets reported the existence of a whistleblower complaint filed with the inspector general of the intelligence community against President Donald Trump. The IC encompasses all civilian and military employees and contractors who work for the federal government gathering domestic and foreign intelligence.

The inspector general — a position appointed by the president and confirmed by the Senate — exists in all parts of the executive branch of the government, except for the White House, to examine and determine if officials are following the law.

A whistleblower refers to a person who works for the government and who believes that her or his colleagues and bosses are engaged in unconstitutional or unlawful or dangerous behavior. A federal statute expressly provides procedures for federal employees to follow in order to make known to an inspector general the potentially unlawful or dangerous behavior.

In the case of the IC, since the subject of a whistleblower complaint can be so serious — often involving classified materials that affect national security — the rules provide for an immediate review of the complaint.

The complaint against Trump alleged that he offered a “promise” to a foreign head of state that was unlawful or threatening to national security. The IC inspector general — a Trump appointee — evaluated the complaint, interviewed the whistleblower, examined documents that the whistleblower provided and concluded that the complaint was “urgent and credible.”

The complaint related that Trump held up the sale of $250 million worth of military equipment and the delivery of $140 million in congressionally mandated foreign aid until the government of Ukraine opened a criminal investigation against the son of former Vice President Joe Biden, the leading Democratic contender to oppose Trump in the 2020 presidential election.

Can the president of the United States legally ask a foreign government to provide assistance to his reelection? In a word: No.

Here is the backstory.

After special counsel Robert Mueller delivered his report of the relationship between the Trump campaign and Russian agents to the Department of Justice, and then testified about what he discovered, Trump claimed exoneration. Mueller’s report found some evidence of a conspiracy — 127 telephone calls and numerous meetings — between Trump’s campaign and Russian agents, but not enough to charge the crime of conspiracy to solicit foreign assistance in a domestic political campaign.

Mueller also found 10 instances in which Trump had committed the criminal offense of obstruction of justice by his personal efforts to derail the Mueller investigation. Mueller did not seek an indictment of Trump for behavior that would have gotten any other person in America indicted because Mueller knew that his boss, Attorney General William Barr, who needed to sign off on such an indictment, would not do so.

Trump felt exonerated and emboldened. At the same time that the country was debating publicly what the Mueller report revealed about his behavior, the president instructed the Treasury Department to hold off on the licenses it had provisionally granted to American arms manufacturers to sell a quarter of a billion dollars in arms to Ukraine. He also instructed the State Department to hold off on the delivery of $140 million in direct aid to Ukraine that Congress told him to deliver.

Also at the same time, he began his conversations with his Ukrainian counterpart, during which he urged a criminal investigation of the younger Biden, even though Biden’s commercial activities in Ukraine while his father was vice president have produced no credible evidence of criminal behavior.

Yet, as if to flaunt the Mueller findings, Trump apparently personally and directly committed the crime for which he claimed Mueller exonerated him.

What was that crime? It was the attempt to solicit foreign assistance for his campaign. It was the manipulation of American foreign and military policy for a corrupt purpose. A corrupt purpose puts the president personally above the needs of the nation.

In short, the whistleblower alleges that Trump offered a bribe to his Ukrainian counterpart: Go after my likely opponent’s son and you will get the $390 million in goods and cash that we are holding up.

If demonstrable, this behavior is far worse than anything alleged or uncovered by Mueller. The acts of obstruction that Mueller found arguably constitute impeachable offenses. That’s because the constitutional language of “high crimes and misdemeanors” as one of the three bases for impeachment has been found by the House of Representatives, in three different generations, to include obstruction. Yet there is still wiggle room as to how much personal presidential obstruction and underlying criminality is needed to constitute an impeachable offense.

There is no such wiggle room for bribery. The Constitution is quite clear that “treason, bribery, or other high crimes and misdemeanors” shall constitute a basis for impeachment.

Was Trump offering to bribe the Ukrainian president? The circumstantial evidence is: Yes. The transcript of Trump’s critical conversation with the Ukrainian president shows he asked his counterpart to coordinate with American authorities to prosecute the son of his likely political opponent in 2020. That is the solicitation of something of value from a foreign government — a felony.

Within a week of that conversation, Trump put his hold on the $390 million in aid. That’s when the Ukrainian president got the message.

Where does this leave us? We are at the precipice of a constitutional crisis. We have a president whose apparent corruption is palpable. We have a Constitution that prescribes a remedy. We have an attorney general who acts as if he were the president’s personal lawyer. We have Republicans in Congress who see and hear no evil from this president. And we have congressional Democrats hesitant to do their constitutional duty.

We have a mess.

Why My Friend Trump’s Hate Speech Is So Toxic

Why My Friend Trump’s Hate Speech Is So Toxic

“Now hatred is by far the Longest pleasure;

“Men love in haste, but they detest at leisure.”

— George Gordon, Lord Byron

When I was an undergraduate at Princeton University during the height of the Vietnam War, surrounded by fellow students who condemned it and even some who left the country to avoid fighting in it, the mantra used by its supporters was, “America, love it or leave it.” In my misguided “Bomb Hanoi” youth, I uttered this phrase, which I now detest.

The phrase itself — with its command of the government’s way or the highway — admits of no dissenting opinions, suggests that all is well and proper here and insinuates that moral norms and cultural values cannot be improved. The phrase itself is un-American.

That era also produced such hate-filled catchphrases as: “Hey, hey, LBJ; how many kids did you kill today?” Those post-JFK and pre-Watergate times were harsh and bitter as the nation was deeply divided over a war we now all know was useless and based on deception and fraud.

We know from the publication of the Pentagon Papers that the incidents President Lyndon B. Johnson claimed justified the war never occurred, and the president and some of his generals regularly lied to the American public about the war.

The lies and deceptions — combined with the military draft and the deaths of 58,000 Americans — produced much hatred. The hatred was for people, rather than ideas. It was generational and ideological. Youth hated age. Long hair hated short hair. Conservatives hated liberals. Many people hated LBJ personally. When President Gerald R. Ford ended the war — though in a colossal defeat — the end produced a great national relief because the national hatred of people was over.

Now, that hatred is back.

I have known President Donald Trump personally since 1986. The private Trump I have known is funny, charming and embracing. That is not the public Trump of today. When he loudly called for four members of Congress — women of color who oppose nearly all his initiatives and who have questioned his fitness for office — to go back to the places from which they came, he unleashed a torrent of hatred.

The “Go back” trope was used by white racists toward African Americans for 100 years, from Reconstruction to the civil rights era, suggesting repulsively that they should go “back” to Africa; never mind their American births. It was uttered by the establishment at my grandfathers and many others who came here from southern Europe as children in the early days of the last century.

“Go back” is a rejection of the nation as a melting pot; a condemnation of one of America’s founding values — E Pluribus Unum (Out of many, one). It implicates a racial or nativist superiority: We were here before you; this is our land, not yours; get out. Nativist hatred is an implication of moral or even legal superiority that has no constitutional justification in American government.

All working in government in America have taken an oath to support the Constitution. The Constitution commands equal protection of the laws by government at all levels. No one is above the laws’ obligations and no one is beneath the laws’ protections. The Constitution not only commands of government both racial neutrality and color blindness, it generally prohibits government officials from making distinctions among people on the basis of immutable characteristics.

So, when the president defies these moral and constitutional norms and tells women of color to “Go back,” he raises a terrifying specter.

The specter is hatred not for ideas he despises but for the people who embrace those ideas. The specter is also a dog whistle to groups around the country that hatred is back in fashion and is acceptable to articulate publicly. Don’t get me wrong. Even though hate speech — speech which expresses hatred for people, as opposed to hatred for ideas — stings and hurts, it is constitutionally protected. The remedy for hate speech is not to silence the hater but to shame him. And the most effective way to do that is with more speech.

But when the hate speech comes from a shameless president, we have a problem.

The problem is that presidential hatred produces division among people and destroys peaceful dialogue. When thousands of people at a Trump rally in North Carolina recently chanted, “Send her back” — a reference to the four congresswomen to whom Trump stated “Go back” — the inescapable image was of a president trying to divide rather than unite.

At first, he welcomed the chants. Then, two days later, he distanced himself from those who chanted. Then, three days after that, he praised the chanters. When a Louisiana police officer tweeted that one of the congresswomen Trump targeted deserved a round — he was referring to a bullet — he and a supportive colleague were fired. And in New York City, hatred for cops has led to group assaults on them, along racial lines.

Hatred is so volatile and destructive that, once unleashed, it takes on a life of its own. It is cover for our deepest and darkest instincts. And it is a cousin to violence, as those Louisiana and Manhattan cops know.

It also captivates our attention. Could that be the president’s wish — that we think about hatred of his targets rather than the testimony of Robert Mueller, who spent two years investigating the president and now has beans to spill?

This business of the hatred of people is so dangerous because to some, as Lord Byron wrote, hatred is perversely pleasing. It gives them shelter in a mob, it lets them hurl venom with anonymity, and it regenerates itself. It must be rejected loudly in all its forms — especially when it comes from the president.

Fox News Judge: Yes, Trump’s Misconduct Is Impeachable

Fox News Judge: Yes, Trump’s Misconduct Is Impeachable

The revelation last weekend by Michigan Republican Congressman Justin Amash that he believes the Mueller Report accuses President Donald Trump of impeachable offenses has ignited firestorms in both major political parties on Capitol Hill. Amash’s argument is simple and essentially unassailable, though his fellow congressional Republicans don’t want to hear it and Democrats don’t know what to do with it.

Here is the backstory.

When special counsel Robert Mueller delivered his report to Attorney General William Barr, it was a 448-page tome that effectively summarized nearly two years of work and nearly two million pages of documents in an effort to establish whether elements of the Russian government interfered with the 2016 presidential election, and, if so, whether the Russians had any American collaborators in the Trump campaign.

The investigation of Russians and potential American collaborators expanded because of personal behavior of President Trump, which was aimed at delaying or derailing Mueller’s investigation. Thus, when the Mueller Report reached Barr’s desk, it was in two volumes — the first was about the Russians and the second was about the president.

Mueller found 127 communications between Trump campaign officials and Russian agentsbetween June 2015 and November 2016 — Trump publicly said there were none — and as a result of those communications, the campaign came to expect to receive “dirt” on Trump’s principal opponent, Hillary Clinton, from the Russians. The dirt arrived in the form of hacked emails, but Mueller and his team were unable to “establish” the existence of a criminal conspiracy between the Russians and the Trump campaign.

Mueller indicted Russians for interference, and he found evidence of a criminal conspiracy, but not enough evidence to prove the conspiracy case to a jury beyond a reasonable doubt.

The second volume of the report addressed 10 instances in which the president himself attempted to interfere with Mueller’s work. Such attempted interference, when done for a corrupt purpose — such as protecting himself or his friends from the reach of the FBI — constitutes obstruction of justice. Here is where the Mueller Report and Barr’s response to it get a bit dicey.

The more serious and clearly criminal of these obstruction events consists in Trump instructing those who worked for him in the White House to put documents containing material falsehoods into government files that were about to be subpoenaed, and instructing the same folks to lie to FBI agents. Mueller did not seek an indictment of the president on these crimes because he knew that Barr, his boss, would not permit one. The reasons Barr has given for not permitting the indictment are legally troublesome; they constitute a very narrow reading of the obstruction of justice statute and a misapplication of Department of Justice policy.

Barr has not permitted Mueller to seek an indictment of Trump because Barr reads the obstruction statute as letting Trump off the hook because he was not charged with conspiracy to collaborate with the Russians — the original crime Mueller was investigating. That view of obstruction — an innocent person cannot legally obstruct an FBI investigation of himself — has been rejected by nearly all law enforcement, including by Barr’s own DOJ prosecutors.

Barr also would not permit an indictment of Trump because of what he says is the general DOJ policy against indicting an incumbent president. But the DOJ policy barring the prosecution of a president allows a sealed and secret indictment of the president and post-presidential prosecution because, contrary to what President Richard Nixon believed, the president is not above the law.

We know that Mueller’s obstruction allegations — which have not been effectively contradicted by the White House — constitute not only crimes but also impeachable offenses. We know that because when Nixon asked John Ehrlichman and H.R. Haldeman, his principal aides, to lie to a grand jury, and when President Bill Clinton asked Betty Currie, his White House personal secretary, to lie to FBI agents, the House of Representatives — either through the House Judiciary Committee by direct vote — approved articles of impeachment against both of them for obstruction of justice.

This is Amash’s argument: The special counsel found evidence of obstruction of justice by the president, and historically presidential obstruction of justice is an impeachable offense. This is a legal narrative, not a political one. But it has heretofore not been articulated publicly by any Republican officeholder, until Amash courageously did so last weekend.

The Nixonian argument that the president can do no wrong was soundly rejected by the lessons of Watergate and Nixon’s reluctant resignation, but it has reared its head again. No serious legal thinker — not even an attorney general bent on protecting the president — can make it with intellectual honesty or a straight face.

On the other side of the congressional aisle are bitterly divided House Democrats. Some of them see Trump’s obstruction of justice as criminal and impeachable, and they add to that his refusal to abide lawful congressional subpoenas. Presidential rejection of congressional subpoenas was also an article of impeachment voted against Nixon.

Most Democratic congressional leadership thinks impeaching a popular president would be fruitless, and might even help Trump solidify his base. These folks have argued that impeachment should not be undertaken, no matter how criminal or impeachable his documented behavior, without a broad bipartisan consensus in support of it.

Has Donald Trump committed impeachable offenses? Even if he has, should the House move toward impeachment? Is the failure to consider impeachment a tacit ratification of Trump’s criminal behavior? Is there a duty to impeach? Is temporary presidential popularity a free pass to avoid the legal consequences of presidential criminal behavior?

Who beside Justin Amash will effectively address these questions?

IMAGE: Rep. Justin Amash (R-MI), the first Republican member of Congress to call for Trump’s impeachment.

Fox News Judge: Barr Shouldn’t Defend Trump’s Obstruction

Fox News Judge: Barr Shouldn’t Defend Trump’s Obstruction

We know from Special Counsel Robert Mueller’s report that Russian intelligence agents engaged in sophisticated cyber warfare against the United States, and we did very little to resist them. The Russians were physically here. They engaged via email and text with many Americans. They ran popular political rallies. They attempted to alter vote tallies. They received internal polling data from the Trump campaign, with which they communicated 127 times in 16 months.

None of this seems to be causing outrage. Instead, the outrage is around the efforts President Donald Trump personally undertook to interfere with the challenging work of finding out who the Russians were and what they did. Why would he attempt to derail such an investigation? Did then-President Barack Obama know what the Russians were up to? That seems unlikely, since he ardently wished to be succeeded in office by Hillary Clinton, and the Russian efforts were aimed at helping Trump.

But the American intelligence community should have known. It captures all the fiber optic communications of all people in America. This mass suspicionless surveillance is unlawful and unconstitutional, but the leadership of our 60,000-person strong domestic spying apparatus has persuaded every president since George H.W. Bush that all this spying keeps America safe. We now know that it doesn’t. It didn’t find a single Russian spy bent on influencing the election.

Former American spies have been complaining for years that capturing the keystrokes of all people in America 24/7 produces information overload — too much data to sift through when searching for those trying to harm our way of life.

From the Mueller Report, we also know the determination of the attorney general to prevent any criminal charges — no matter the evidence — from being brought against the president for his attempts to impede the investigation.

The credible evidence that Mueller found of Trump’s obstruction was rejected by Barr based on a unique legal theory of the obstruction of justice statute, a theory that even Barr’s own prosecutors have rejected.

The Barr argument goes thusly: In order for a person to obstruct justice, there must be some justice to obstruct. Hence, if the alleged obstructer did not commit the underlying crime being investigated, then his so-called obstruction did not impair justice; it just impaired a fruitless investigation. This sophistry would make the Jesuits proud.

As well, this argument goes, so long as presidential interference in an investigation is grounded in the Constitution and is not “corrupt” — the word in the federal obstruction of justice statute — it is not prosecutable.

The nearly universal view of law enforcement, however, rejects Barr’s narrow view of obstruction and interprets the plain meaning of the federal statute as it was written. Thus, under this view, all corrupt interference or attempted interference with an investigation or judicial proceeding constitutes obstruction. A corrupt purpose is one that seeks personal gain for the obstructer, such as shielding him from the revelation of unpleasant truths.

So, if Trump fired FBI Director James Comey because Trump wanted to be the tallest person in the room or because he had a better director candidate in mind, there is no corrupt purpose. But if he fired Comey to delay or stop the FBI’s acquisition of painful truths about Russia, as he told NBC’s Lester Holt was his purpose, then whether the truths he wants to hide are about unlawful behavior or not, Trump’s purpose is corrupt and his behavior is prosecutable.

As well, if the pre-presidential Trump instructed retired Lt. Gen. Michael Flynn to tell the Russian ambassador that Trump would relax sanctions on Russian banks and oligarchs once in office — as Flynn told Mueller was the case — Trump’s efforts to hide that truth from FBI investigators constitute obstruction. And, if Trump lied to the public about the communications between his campaign and the Trump Organization and the Russians — he said there were none — and he tried to prevent the FBI from learning about the 127 communications, Trump’s purpose is corrupt.

Asking Deputy National Security Adviser K.T. McFarland to put an untruthful document about Flynn’s conversation with the Russian ambassador into a government file that is likely to be subpoenaed and asking White House Counsel Don McGahn to lie to FBI agents are acts of obstruction. They constituted ordering subordinates to commit crimes for a corrupt purpose — shielding Trump from the revelation of unpleasant truths about his behavior.

We know that Attorney General Barr’s own DOJ rejects its boss’ narrow view of obstruction because of an indictment it announced just last week. A federal grand jury in Boston indicted a sitting judge of the Superior Court of Massachusetts for obstruction of justice. Her crime? She allegedly told the ICE agents in her courtroom to arrest a defendant appearing in front of her that the defendant would be released from her custody in the courthouse lobby.

When sheriff’s officers instead released him to the courthouse parking lot, and the defendant escaped, the judge was accused of obstructing justice even though it is legally impossible for her to have committed the underlying crime that ICE was prosecuting — illegal reentry into the U.S. by a once-deported and undocumented immigrant.

 

Fox News Judge Condemns Trump For Obstructions Of Justice

Fox News Judge Condemns Trump For Obstructions Of Justice

When the Department of Justice designated Robert Mueller as special counsel to take over the FBI investigation of the Trump campaign in May 2017, Mueller’s initial task was to determine if there had been a conspiracy — an illegal agreement — between the campaign and any Russians to receive anything of value.

When former FBI Director James Comey informed Mueller that he believed Trump fired him because he had declined Trump’s order to shut down the investigation of Trump’s campaign and of his former national security advisor, retired Lt. Gen. Michael Flynn, Mueller began to investigate whether the president had unlawfully attempted to obstruct those investigations.

We now know why Trump was so anxious for the FBI to leave Flynn alone.

Flynn was charged and pleaded guilty to lying to the FBI about whether he discussed sanctions in a telephone call with then-Russian ambassador to the United States Sergey Kislyak, before Trump became president. Such a communication could have been unlawful if it interfered with American foreign policy.

So, when Trump learned of the lie, he fired Flynn. Yet in his plea negotiations with Mueller, Flynn revealed why he discussed sanctions with Kislyak — because the pre-presidential Trump asked him to do so. An honest revelation by Trump could have negated Flynn’s prosecution. But the revelation never came.

Last week, Attorney General William Barr released publicly a redacted version of Mueller’s final report. That report concluded that notwithstanding 127 confirmed communications between the campaign and Russians from July 2015 to November 2016 (Trump said there were none), the government could not prove the existence of a conspiracy.

On obstruction, the report concluded that notwithstanding numerous obstructive events engaged in by the president personally, the special counsel would not charge the president and would leave the resolution of obstruction of justice to Congress. Congress, of course, cannot bring criminal charges, but it can impeach.

Trump initially claimed that he had been completely exonerated by Mueller — even though the word “exoneration” and the concept of DOJ exoneration are alien to our legal system. Then, after he learned of the dozen or so documented events of obstruction described in the report, Trump used a barnyard epithet to describe it.

The Constitution prescribes treason, bribery or other high crimes and misdemeanors as the sole bases for impeachment. We know that obstruction of justice constitutes an impeachable offense under the “high crimes and misdemeanors” rubric because both presidents in the modern era who were subject to impeachment proceedings — Richard Nixon and Bill Clinton — were charged with obstructing justice.

Obstruction is the rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That’s because the statute itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.

Thus, if my neighbor tackles me on my way into a courthouse in order to impede a jury from hearing my testimony, and, though delayed, I still make it to the courthouse and testify, then the neighbor is guilty of obstruction because he attempted to impede the work of the jury that was waiting to hear me.

Mueller laid out at least a half-dozen crimes of obstruction committed by Trump — from asking K.T. McFarland to write an untruthful letter about the reason for Flynn’s chat with Kislyak, to asking Corey Lewandowski and then Don McGahn to fire Mueller and McGahn to lie about it, to firing Comey to impede the FBI’s investigations, to dangling a pardon in front of Michael Cohen to stay silent, to ordering his aides to hide and delete records.

The essence of obstruction is deception or diversion — to prevent the government from finding the truth. To Mueller, the issue was not if Trump committed crimes of obstruction. Rather, it was if Trump could be charged successfully with those crimes.

Mueller knew that Barr would block an indictment of Trump because Barr has a personal view of obstruction at odds with the statute itself. Barr’s view requires that the obstructer have done his obstructing in order to impede the investigation or prosecution of a crime that the obstructer himself has committed. Thus, in this narrow view, because Trump did not commit the crime of conspiracy with the Russians, it was legally impossible for Trump to have obstructed the FBI investigation of that crime.

The nearly universal view of law enforcement, however, is that the obstruction statute prohibits all attempted self-serving interference with government investigations or proceedings. Thus, as Georgetown Professor Neal Katyal recently pointed out, former Detroit Mayor Kwame Kilpatrick was convicted of obstruction for interfering with an investigation of his extramarital affair, even though the affair was lawful.

Famously, Martha Stewart was convicted of obstruction of an investigation into her alleged insider trading, even though the insider trading charges against her had been dismissed. And a federal appeals court recently upheld the obstruction conviction of a defendant who suborned perjury in order to impede the prosecution of the sister of a childhood friend.

On obstruction, Barr is wrong.

So, the dilemma for House Democrats now is whether to utilize Mueller’s evidence of obstruction for impeachment. They know from history that impeachment only succeeds if there is a broad, national, bipartisan consensus behind it, no matter the weight of the evidence or presence of sophisticated legal theories.

They might try to generate that consensus by parading Mueller’s witnesses to public hearings, as House Democrats did to Nixon. Yet, when House Republicans did that to Clinton, and then impeached him, they suffered politically.

The president’s job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, indefensible, and condemnable.

IMAGE: A combination photo shows President Donald Trump (L), on February 28, 2017, former White House National Security Advisor Michael Flynn (C), February 13, 2017 and former FBI Director James Comey in Washington U.S. on July 7, 2016. REUTERS/Jim Lo Scalzo/Pool, Carlos Barria, Gary Cameron/File Photo

 

Fox News Judge: Barr’s Four-Page Memo Didn’t ‘Exonerate’ Trump

Fox News Judge: Barr’s Four-Page Memo Didn’t ‘Exonerate’ Trump

When Attorney General William Barr released his four-page assessment of Special Counsel Robert Mueller’s 400-page report, I was disappointed at many of my colleagues who immediately jumped on board the “no collusion” and “no obstruction” and “presidential exoneration” bandwagons.

As I write, Barr and his team are scrutinizing the Mueller report for legally required redactions. These include grand jury testimony about people not indicted — referred to by lawyers as 6(e) materials — as well as evidence that is classified, pertains to ongoing investigations or the revelation of which might harm national security.

Mueller impaneled two grand juries, one in Washington, D.C., and the other in Arlington, Virginia. Together they indicted 37 people and entities for violating a variety of federal crimes. Most of those indicted are Russian agents in Russia who have been charged with computer hacking and related crimes in an effort to affect the 2016 presidential election. They will never be tried.

Some of the Americans indicted have pleaded guilty to lying to FBI agents, such as retired Lt. Gen Michael Flynn, Rick Gates and George Papadopoulos. Papadopoulos told me personally that even though he pleaded guilty to lying to the FBI, he did not in fact lie to them. Do the innocent ever plead guilty? Answer: Yes, they do.

This is a dirty little secret of the American justice system. Often, the cost of defending oneself is so burdensome that a guilty plea — if not disabling to one’s profession, such as law or medicine — offers a tolerable and far less expensive way out. In my years as a trial judge in New Jersey, I accepted more than 1,000 guilty pleas. I always asked if the defendant was truly guilty, and the defendants always replied affirmatively. But the guilt of those pleading guilty is often a legal fiction, practiced every day in courthouses around the United States.

Paul Manafort was convicted of financial crimes by a jury and also pleaded guilty to other financial crimes. Roger Stone was indicted for lying to Congress and is scheduled for trial in the fall. Dr. Jerome Corsi, who was interrogated extensively by Mueller’s FBI agents, was threatened with indictment, revealed the threat and was never indicted.

I recount this thumbnail history to remind readers that Mueller delved into many more areas than President Donald Trump’s behavior. Knowing federal prosecutors as I do, I am comfortable suggesting that more people were swept up into this investigation and were not charged with any crimes. Under the law, Barr and his team must be told of all this, but the public has no right to know who these folks are or what they discussed with the FBI.

Now back to Barr’s four-page assessment. The Department of Justice is in the business of investigating crimes and determining if it has sufficient, lawfully acquired evidence to prosecute and to prove guilt beyond a reasonable doubt. The DOJ is not in the business of exoneration. In fact, the word “exoneration” and the concept appear nowhere in the U.S. Code or the Federal Rules of Criminal Procedure. To offer, as Barr has in his letter, that Mueller exonerated Trump is to offer nonsense. Jay Sekulow, one of Trump’s personal lawyers, acknowledged as much publicly last weekend.

In his letter, Barr did not write that Mueller found no evidence of a conspiracy. Conspiracy is an agreement to commit a crime, whether or not that crime is actually committed. This is what the media and the president have been calling collusion. “Collusion” also does not appear in the U.S. Code and does not describe criminal behavior. It was insinuated into our vocabulary by Trump’s television lawyer, former New York City Mayor Rudy Giuliani, after a successful but deceptive word game campaign.

As well, Barr did not write that Mueller found no evidence of obstruction of justice. Obstruction is not a crime that requires completion, only a serious attempt. If I tackle you on your way into a courthouse where you plan to testify against me, so as to impede your testimony, then I have committed obstruction, even if you subsequently give the intended testimony.

The reason for my criticism of the no collusion and no obstruction bandwagon riders is because we know that Mueller must have found some evidence of conspiracy and some evidence of obstruction — just not enough to prove guilt beyond a reasonable doubt. Barr tipped his hand to this when he wrote in his letter that the DOJ could not “establish” these crimes. That’s lawyer-speak for “could not prove them beyond a reasonable doubt.”

If Mueller had found no evidence whatsoever of conspiracy and obstruction, Barr would have said so in his letter. He didn’t. So, will we see whatever evidence Mueller did find?

We also know that, according to some on the Mueller team, the flavor of whatever Mueller found did not come through in Barr’s four-page letter, and some have voiced privately to the media their displeasure. This has caused the president to accuse Mueller’s team of unlawful leaking. That is not necessarily so.

Voicing displeasure is one thing — “wait for the full report to come out and decide for yourself if the Attorney General fairly characterized it” — revealing 6(e) materials is another. The former is protected free speech. The latter could be career-ending.

Where does all this leave us? In the hands of Bill Barr. The House Judiciary Committee wants to see the evidence, which Barr will argue the law requires him to keep secret. Yet, did the president waive his privacy rights when he called for the public revelation of the full Mueller report? A federal judge will soon answer that question, as well as this one: With respect to the president, which is the higher value — privacy or truth?

Fox News Judge: How We Know Mueller Found Evidence Of Conspiracy

Fox News Judge: How We Know Mueller Found Evidence Of Conspiracy

Last Sunday afternoon, U.S. Attorney General William Barr released a letter, which he said summarized the report he had received from special counsel Robert Mueller about alleged crimes committed by President Donald Trump. Barr wrote that the president’s exoneration is complete with respect to any conspiracy between the Trump campaign and Russian intelligence to affect the outcome of the 2016 presidential election. He also wrote that though Trump will not be prosecuted by the Department of Justice for obstruction of justice, the special counsel did not exonerate him.This is a head-scratcher.

The head-scratcher is why Barr revealed any ambivalence on the part of anyone in the DOJ on the issue of obstruction of justice when he needn’t have. As well, under the Federal Rules of Criminal Procedure, he shouldn’t have. Those rules, which prohibit the revelation of evidence for and against prosecution of people not actually prosecuted, also prohibit the revelation of the existence of such evidence, as well as any disagreements among prosecutors over the legal significance of the evidence.

The Barr revelation constitutes the same violation of federal rules and DOJ policy that FBI Director James Comey committed when he announced in the summer of 2016 that Hillary Clinton would not be prosecuted for using private email servers to communicate about classified materials and then revealed that the FBI had convincing evidence against her and then revealed what that evidence was.

When the president learned of the Barr summary of the Mueller report, he naturally rejoiced, and then he thoughtlessly asked for the full Mueller report to be made public. That was a mistake.

Here is the back story.

Barr’s four-page summary of Mueller’s 700-page report claims to have characterized fairly Mueller’s principal conclusions. Yet a careful reading between the lines of those four pages reveals lawyerly language that the president does not want to hear analyzed. Though the president will not be charged with conspiracy to receive something of value from the Russians in order to affect the outcome of a political campaign (a felony), Mueller clearly found some evidence of a conspiracy between the Trump campaign and Russian intelligence (probably the 100-plus communications, some in person, between them), but not enough evidence “to establish” the conspiracy — that is, not enough evidence to prove the existence of the conspiracy beyond a reasonable doubt.

We know Mueller found some evidence of such a conspiracy because if he failed to find any evidence, Barr would have said so. He didn’t.

The second conclusion related by Barr is that Mueller found the evidence against Trump of obstruction of justice (interfering, or attempting to interfere, with an FBI investigation for a self-serving purpose) to be equivocal. That means Mueller found there is evidence that the president obstructed or attempted to obstruct justice and there is equally as strong exculpatory evidence or public policy or credibility reasons for not prosecuting, as well.

Both of these conclusions were made known to Barr three weeks ago, but he revealed them last Sunday.

Why would Mueller punt on the obstruction charge? It is not uncommon for prosecutors to view the same facts and the same law and come to different conclusions about whether a crime can be proven beyond a reasonable doubt. In the conspiracy charge, Mueller concluded he could not prove the case beyond a reasonable doubt. On the obstruction charge, he allowed his boss, Barr, to make the decision about whether to prosecute the president. Such a “kicking the case upstairs” is not uncommon in high-profile cases.

Why Barr revealed all this is a mystery, as it will beat the drum for the release of Mueller’s full report and perhaps the evidence on which that report is based so that members of Congress who want to second-guess Mueller or examine for themselves what evidence of conspiracy and obstruction he found may do so.

What’s next? The Barr letter is a summary of the Mueller report. The Mueller report is itself a summary of the millions of pages of raw evidence Mueller and his team accumulated. That raw evidence consists of grand jury transcripts; FBI notes of interrogations of witnesses; transcripts of wiretaps, emails and text messages; prosecutors’ impressions of the quality of their evidence; and more than 1 million pages of campaign and White House documents voluntarily surrendered to Mueller.

If the 700-page summary of the evidence or the trove of raw evidence on which the summary is based are revealed, there will be much in there for Trump’s adversaries to feast upon. It’s a mistake for the president to call for the revelation of anything that he or his lawyers have not seen.

While the political focus shifts to the House Democrats, the legal focus shifts to Manhattan, where federal prosecutors have an ongoing investigation of the president for election finance fraud. And they have a finding by a federal judge that the criminal conspiracy to evade election finance reporting — to which Michael Cohen pleaded guilty and for which the owner of the National Enquirer received a deal — was orchestrated by the president himself.

And the Senate Republicans now want to investigate who in the FBI or the CIA abused their legal authority and started all this. But the intelligence community will do its best to stifle them, just as that community stifled Trump from revealing what materials were seen by the secret Foreign Intelligence Surveillance Court. That is another can of worms the contents of which Trump should not want to be seen.