FBI Director Pressured to Remove Deputy Director

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FBI Director, Christopher Wray threatened to resign if Deputy FBI Director, Andrew McCabe, was removed from his post. Attorney General Jeff Session apparently pressured Wray to remove both McCabe and the FBI’s lawyer James Baker from their posts (though it is unclear whether that meant firing or transfering the two). Baker was reassigned last year. President Trump has also made his distaste for the Deputy Director known via twitter, apparently for the way he handled Hillary Clinton’s email scandal.

The pressures Wray is facing remind me of the firing of former FBI Director James Comey, who was in the midst of investigating Trump’s connections with Russia when his position was terminated. Commentators feel that the firing of James Comey could constitute obstruction of justice, a potentially impeachable offense. The pressure to remove to McCabe would likely not constitute further obstruction of justice, as it unclear that McCabe is currently involved in the investigation of Russian collusion. However, the pressure put on Wray does show a pattern of interference with the FBI which paints the President in a negative light. One would think that after the firing of Comey, the White House would take a hands off approach.

1512667702968.jpgAP Photo

Impeachment in the states: Missouri governor edition, Part 2

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By Frank Bowman

In yesterday’s post, I discussed the basics of the impeachment provisions of the Missouri state constitution and how they compare with federal practice.  Today I turn to how Missouri’s rules intersect with the publicly reported facts of Governor Eric Greitens’ sex scandal.

The Basics

To recap, under the Missouri constitution the procedure for impeaching state judges and all elective officials is as follows:

The official must first be impeached by the state House of Representatives. Curiously, the state constitution does not specify a minimum vote threshold for approving articles of impeachment, but presumably, as with federal impeachment, approval requires a majority vote.

Once articles of impeachment are approved by the House, the trial of the allegations is held, not in the state senate, but by judges.  For all officials except members of the supreme court and the governor, impeachments are tried before the supreme court.  Impeachment of the governor or a member of the supreme court is tried to “a special commission of seven eminent jurists to be elected by the senate.”

Article VII, Section 1 of the Missouri constitution lists as impeachable conduct “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”  As I discussed in detail in my last post, this apparently very broad standard has been interpreted by the Missouri Supreme Court in Matter of Impeachment of Judith K. Moriarty, 902 S.W.2d 273 (1994), to include only conduct that is a violation of some other law, i.e., some law other than Article VII, Section 1.

The legal violation need not be criminal. Nor does there seem to be a requirement like that in the federal constitution that the impeachable behavior be a “high” or great offense.  Even, as was the case in Moriarty, a minor civil regulatory infraction could apparently suffice. Moreover, it does not appear that the impeached official must have been previously found guilty or adjudged liable by any tribunal other than the impeachment court.

[NOTE: After this article was first posted, an astute reader who worked in the statehouse at the time of the Moriarty impeachment e-mailed me to point out that, prior to her impeachment, Ms. Moriarty was indicted and convicted in Cole County for a misdemeanor election law violation in connection with the same transactions that led to her impeachment. Curiously, however, in its opinion convicting Ms. Moriarty of the articles of impeachment, the Supreme Court never mentions the prior conviction or any criminal infraction.  It merely finds that she knowingly violated the civil election statutes, as alleged by the House.]

Finally, the Missouri Supreme Court held in Moriarty that judges sitting as a court of impeachment should not make political judgments about whether the charged conduct is serious enough to merit removal.  The practical effect of this limitation is that, while judges should not convict in an impeachment case unless the charged conduct violates state law, any proven violation of any state law, however minor, should result in conviction and removal so long as the Missouri House of Representatives deemed the conduct worthy of inclusion in an article of impeachment in the first place.

Is Governor Greitens impeachable?

These ground rules have significant implications for any effort to impeach Governor Greitens.

First, because the governor cannot be impeached unless he somehow violated the law, we must begin by determining whether any of his reported conduct did so.  Here’s a rundown of the major possibilities:

  • Adultery: A surprising number of states still make adultery illegal.  But Missouri is not among them.
  • Sexual offenses or false imprisonment:  Media accounts of the sexual contact between Mr. Greitens and his former hairdresser suggest that it was consensual.  In an interview today, Mr. Greitens resolutely insisted that this was the case. However, the woman’s account of the relationship includes at least one sexual encounter in which she was bound, a point Mr. Greitens has not so far denied. So long as the woman consented to the binding and all sexual contact occurring while she was bound, there would be no crime.  That said, if either the binding or any of the particular kinds of sexual contact that occurred while the woman was bound was non-consensual, the non-consensual behavior could be criminal.  Sexual contact without consent can constitute a series of crimes, ranging in seriousness from the misdemeanor of Sexual Abuse, RSMo 566.101, to felony Second Degree Rape, RSMo 566.031.  Either binding the woman without consent or declining to release her after she withdrew consent could in theory amount to false imprisonment (now known as third degree kidnapping), RSMo 565.130.  It must be emphasized that at this point there is no evidence of anything other than a consensual sexual encounter with somewhat unusual, shall we say, rules of engagement.  And that’s not a crime.
  • Blackmail or extortion: During a conversation with her husband in which she confessed to the affair with Mr. Greitens, the woman asserted that while she was bound, unclothed, and blindfolded, she saw a flash, which she interpreted as Mr. Greitens photographing her. She also said that Greitens threatened to release the photo to the public if she revealed the affair.  Mr. Greitens has denied that he took a picture or threatened to release it. There has been widespread media speculation that this conduct, if proven, might amount to “blackmail.”  The legal difficulty with this speculation is that there is no Missouri crime of blackmail.  If a person threatens public release of embarrassing material unless the victim turns over money or something else of economic value, that constitutes “stealing” by “coercion” – which includes a threat “to expose any person to hatred, contempt or ridicule.”  But there is no allegation here that Mr. Greitens sought money or anything else of economic value. Similarly, Missouri has no extortion statute.
  • “Revenge porn”: Some jurisdictions make it an offense to release publicly indecent images of another person without consent.  But Missouri has no such statute. And Mr. Greitens released nothing.
  • Invasion of privacy (the alleged picture):  Regardless of whether Mr. Greitens committed any crime akin to blackmail, if he simply took a picture, without the woman’s consent and while she was fully or partially unclothed, that would be a plain violation of Missouri’s invasion of privacy statute, RSMo 565.252.
  • Tampering with physical evidence: If the alleged photograph was ever taken, it has not surfaced, and the woman in the case says that Mr. Greitens told her he erased / destroyed the picture. However, if there was a picture and Mr. Greitens erased it for the purpose of preventing its disclosure in any “official proceeding or investigation,” that would be the crime of tampering with physical evidence, RSMo 575.100. Of course, if such a picture once existed, but Mr. Greitens destroyed it either out of remorse for his bad behavior or to prevent its discovery by, say, his wife, that would be no crime.

The bottom line here is that, if the woman is telling the truth, Mr. Greitens committed at least one crime under Missouri law – invasion of privacy for taking a non-consensual nude photograph.  The offense is only a misdemeanor, but as noted above, Missouri’s impeachment provisions set no minimum level of severity for impeachable offenses.

The most obvious impediment to proving conclusively that Mr. Greitens violated the invasion of privacy statute is the absence of the alleged photograph.  That said, even in ordinary criminal cases, physical evidence is not necessary to establish contested facts.  In criminal court, Mr. Greitens could be charged with and convicted of invasion of privacy purely on the testimony of the woman in the case.  As a practical matter, this would require her cooperation (trying to prove the case with only her taped statement to her husband would probably run afoul of the rules of evidence). But if she testified consistently with her taped statement, nothing would prevent a judge or jury from convicting Mr. Greitens because they believed her story and not his denials.

The same is true of an impeachment proceeding.  The Missouri House of Representatives could frame an article of impeachment based on violation of the invasion of privacy statute and the panel of judges appointed to hear the matter could convict the governor because they found her more credible than him. That said, without some corroboration that a photo ever existed, it seems somewhat improbable that either a prosecutor or the House of Representatives would proceed.

The most interesting legal question an impeachment case for invasion of privacy would present is whether a state official can be impeached for conduct that occurred before he took office.  The Missouri constitution doesn’t address this issue.  And the final intriguing twist on the matter is that we cannot be sure that the issue is what lawyers call “justiciable.”  In other words, the Missouri constitution delegates the task of trying impeachment of a governor to a special commission of judges appointed by the state senate.  In the federal system, the decision of the U.S. Senate on whether or not to convict an impeached officer is generally understood not to be reviewable by the courts. The Missouri constitution certainly implies that the decision of the special commission is final, but inasmuch as no such commission has ever been convened, we cannot know whether its decision would be deemed final by the regular courts.

As a final note, I have not discussed here the fact that the FBI is also apparently taking a preliminary look at this case.  I may return in a later post to consider whether any federal statute could possibly have been violated and whether a violation of federal law would be grounds for impeachment under the Missouri constitution.

Frank Bowman

 

Impeachment in the states: Missouri governor edition, Part I

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By Frank Bowman

Here in the Show-Me State, we have been granted a temporary reprieve from the feverish national focus on all things Trump by news of the sexual peccadillos of our recently-elected governor, Eric Greitens. As has now been reported across the nation, on Wednesday, January 10, shortly after his State of the State address, Governor Greitens released a statement admitting to a extramarital sexual affair with his former hairdresser back in 2015.

The admission came in anticipation of impending media reports alleging not only that there were one or more sexual encounters between the hairdresser and Mr. Greitens, but that on one occasion Mr. Greitens took a picture of the woman while she was bound and in a state of full or partial undress and then threatened to release the picture publicly if she were ever to speak about the affair. The reports were made all the juicier by the fact that the woman’s former husband secretly recorded her tearful confession to the affair and released the recording to the media.

In his statement, Mr. Greitens admitted the sex, but denied that he had either taken a picture of the woman en déshabillé or threatened to release such a picture to maintain her silence.

Political reaction to these revelations has been swift and somewhat surprisingly severe given that Mr. Greitens is a first-term Republican governor often touted as a rising political star in a state where Republicans hold all but one state-wide office and supermajorities in both houses of the legislature. Democrats immediately called for Mr. Greitens’ resignation, as have multiple Republican legislators. Even Republicans who haven’t gone that far seem, at best, to be withholding judgment pending the outcome of a criminal investigation by the St. Louis Circuit Attorney (and possibly one by the FBI).  One Republican state senator, Gary Romine, said that if investigations into Mr. Greitens’ behavior do not exonerate him, he should “resign or face impeachment.”

Naturally, as soon as I read the word “impeachment,” I perked up like a foxhound when the Master of the Hunt yells “Talley Ho!”  What follows is a two-part look at the law governing impeachment of Missouri state officials, a comparison of Missouri law to federal practice, and a preview of the particular issues an effort to impeach Mr. Greitens would present given the current state of the evidence.

Impeachment in Missouri

Article VII, Sections 1 and 2 of the Missouri constitution state:

Section 1. All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.

Section 2. The house of representatives shall have the sole power of impeachment. All impeachments shall be tried before the supreme court, except that the governor or a member of the supreme court shall be tried by a special commission of seven eminent jurists to be elected by the senate. The supreme court or special commission shall take an oath to try impartially the person impeached, and no person shall be convicted without the concurrence of five-sevenths of the court or special commission.

The most obvious difference between federal and state impeachment procedure is that, while in both systems the house of representatives impeaches the officer, i.e., specifies the charges against the accused, in Missouri the state supreme court, rather than the senate, tries the case. That is, the Missouri Supreme Court, not the Missouri senate, decides whether the allegations in the bill of impeachment are proven and thus whether the officer ought to be removed.  The way the Missouri Supreme Court has interpreted its function materially alters the Missouri impeachment process.

In the federal system, the president may be impeached for serious crimes (although there is disagreement about which ones) and for very serious non-criminal misconduct either in relation to the office or of a personal sort that undermines the president’s legitimacy. Most scholars would agree that, under the federal constitution, the president ought not be impeached for minor crimes (and perhaps not even for serious crimes like perjury if unrelated to his official duties) or for laziness, ineptitude, or pursuing political objectives contrary to those of the legislative majority.

Critically, all informed observers of the federal impeachment process agree that both the decision by the House about which behavior is impeachable and the subsequent decision by Senate about whether to convict and remove the accused are to a significant degree “political.”  As Alexander Hamilton famously said in Federalist #65, impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

The concededly political character of the federal impeachment process shapes the essential nature of the decision-making process.  Both the House and Senate are called upon not merely to decide the truth of factual allegations against the president, but to judge whether the conduct is of a nature that merits removal of the nation’s chief executive officer.  The second choice is a political judgment which the Framers consciously placed in the hands of two political bodies.

The Missouri constitution originally consigned the trial of impeachments to the state senate.  But in the 1940’s (perhaps in response to a case where the senate refused to convict a former senator whose factual guilt was patent), the constitution was amended to institute the present arrangement assigning impeachment trials to the state supreme court. The apparent purpose of the change was to eliminate politics from the last stage of the impeachment process, but as is so often true, this benevolent-sounding objective created a new complication.

In theory, courts are not supposed to be political bodies.  In theory, they are limited to deciding what the law is, whether facts are proven, and whether proven facts fall within the ambit of the law. Of course, any serious student of courts realizes that politics in the broad sense affects judicial decisions at every level. Judges unavoidably bring their own philosophical predilections to deciding both law and facts, and perhaps more importantly, common law judging has always had a public policy component.  Nonetheless, judges traditionally shun explicitly political judgments – such as whether removal of a particular executive branch official would or would not be beneficial to the commonweal.

This judicial discomfort manifested itself in the only Missouri impeachment case to arise after the constitution was amended to give the responsibility of trying impeachments to the supreme court. The case, Matter of Impeachment of Judith K. Moriarty, 902 S.W.2d 273 (1994), arose from the impeachment of the Missouri Secretary of State for “knowingly allow[ing] the signature of her son as candidate or of her administrative aide or both to be placed on an unsigned declaration of candidacy [for public office] so that declaration falsely declared that the son had appeared in presence of aide to declare for office within the time provided for by statute.”

The Missouri Supreme Court found that Ms. Moriarty did what the articles of impeachment charged, thus removing her from office. The interesting part is the court’s explanation of its role in the impeachment process. The court began by contrasting the traditional impeachment system in which the house impeaches and the senate tries the accused with the Missouri system of trial by supreme court:

An impeachment is thus a judgment by the House of Representatives—one of the popularly-elected, representative bodies of the people’s General Assembly—that an officer of the state has committed acts such that, were an election held, the people would not permit the impeached officeholder to remain in office. When a Senate determines whether to convict under articles of impeachment, the vote affirms or rejects the judgment of the House. Under this system, the possibility exists that the House may impeach and the Senate may convict an official for purely political reasons, though they clothe their charges with constitutional language like “misconduct.”

Missouri’s constitutional provision is a clear acknowledgment that the trial of impeachment charges is essentially judicial in character and is not a political function. This Court can convict only where there is actual misconduct as the law defines it. “Misconduct” means doing an unlawful act, doing a lawful act in an unlawful manner, or failing to perform an act required by law. It does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.

This passage is remarkable in several respects.

First, it offers a distorted interpretation of the standard for defining an impeachable offense in federal and state systems in which legislators both formulate and try the articles of impeachment. The court opines that in such systems legislators are supposed to engage in a sort of mass mind-reading exercise assessing the probable electoral reaction of the public to the charged conduct. I confess to thinking this assessment misguided. In the federal system, at least, it is quite clear that senators are intended to exercise independent judgment, and that they should not decline to convict an office holder merely because they think the public might re-elect him despite constitutionally obnoxious conduct.  Were that the case, no demagogue could ever be impeached so long as he retained the probable support of the mob.

Moreover, when the Missouri court disparages senate impeachment trials on the ground that an officeholder may be convicted “for purely political reasons,” it betrays a crabbed and historically inaccurate view of what Founders like Hamilton meant by “political.”  For Hamilton and others of his generation, the term “political” ran far beyond narrowly partisan considerations to broad considerations of constitutional balance and societal good.  For them, impeachment was “political” because it demanded the exercise of sound judgment about whether removing a particular officer for particular conduct protected or disserved republican government.

More important from Governor Greitens’ standpoint is the court’s holding that, because judges and not legislators try Missouri impeachments, there can be a conviction only:

… where there is actual misconduct as the law defines it. ‘Misconduct’ means doing an unlawful act, doing a lawful act in an unlawful manner, or failing to perform an act required by law. It does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.

This is huge because it markedly narrows the definition of impeachable conduct.  Indeed, the result is to judicially amend the Missouri constitution.  Recall that Article VII, Section 1 of the Missouri constitution says that officials may be impeached for “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”

Some of the items on this list obviously do refer to illegal conduct, notably “crimes … corruption in office, [and] any offense involving moral turpitude or oppression in office.” On the other hand, the constitutional text pretty plainly contemplates impeachment for lots of behavior that violates no other law. For example, neither “habitual drunkenness” nor “incompetency” is illegal.  Nor is either “willful neglect of duty” or “misconduct” necessarily a legal infraction.

To maintain its preferred self-conception of non-political arbiter of facts, the Missouri Supreme Court imposed a limiting construction on the constitutional term “misconduct” that requires the impeached official to have violated some other law.  (For you law geeks in the audience, it does so by the extremely dubious expedient of adopting its definition of “misconduct” from a Tennessee case construing the common law crime of “official misconduct,” an offense which exists nowhere in Missouri law.” Mid–South Indoor Horse Racing, Inc. v. Tennessee State Racing Commission,798 S.W.2d 531, 538 (Tenn.App.1990).)

Notably, the laws the Court found Ms. Moriarty to have violated were simply statutory rules for proper filing of candidacy for office.  Failing to perform the duties prescribed in these sections was apparently chargeable as a misdemeanor (perhaps under RSMo 115.641).  Moreover, it appears that, prior to the impeachment proceeding, Ms. Moriarty was charged in Cole County and convicted of such a misdemeanor for her conduct.  But curiously, the Missouri Supreme Court made no reference in its opinion either to the Cole County proceeding or to any violation of criminal law.  The bottom line of Moriarty seems to be that, on the one hand, the Supreme Court will not convict in an impeachment case unless the charged conduct violates state law, but on the other hand, violation of any state law, however minor, will result in conviction and removal so long as the Missouri House of Representatives deems it impeachable.

One sympathizes with Court’s reluctance to stray from its traditional judicial role, but the result is a markedly strained reading of the Missouri constitution — and one that could have considerable impact on any effort to impeach Governor Greitens.

I will address the specifics of the Greitens case in my next post.

Frank Bowman

 

 

 

 

 

Rep. Green is Back on the Floor

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Representative Green offered articles of impeachment on the House floor for the second time this morning. Those who read Rep. Green’s first set of articles, will know that they cited Trump’s continued sexism and bigotry, which “underminded the integrity of his office.” Specific examples of said bigoty were his Muslim ban, comments towards the Charlottesville protestors, and his attack on the kneeling NFL players. Added to this list now are the comments President Trump made during the presentation of the bipartisan immigration proposal, insulting immigrants from African nations, Haiti, and El Salvador  — his “shithole” comment. Green claims that Trump is trying to convert his bigotry into policy.

The timing of Green’s resolution is questionable. With a government shutdown looming, and Congressmen’s minds on things such as immigration reform, Green is unlikely to make any headway with impeachment. However, that has not stopped Green before. Despite the fact that House Minority Leader Nancy Pelosi has made it known that she prefers a more diplomatic approach to impeachment, Green has been vocal in the impeachment effort. It seems likely that Green cares less about the success of his efforts than he does about making a statement: that he will not tolerate bigotry in the Oval Office. Frankly, I can’t blame him.

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The President is Not Demented

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Trump apparently requested that his presidential physician perform a cognitive exam on him during his annual physical exam. The exam used was the Montreal Cognitive Assessment, which is used to test for Alzheimer’s and dementia. The President received a perfect score, indicating that he is free of dementia. This result contradicts some recent speculation. Though some have questioned the rigor of the test, it has done its job. It has armed Trump against attacks on his mental fitness, and made removal via the 25th amendment much less likely.

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The Merits of a Strategic Shutdown

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If Congress is unable to pass a spending bill by this Friday at midnight, the government will shutdown for the first time since 2013. With elections looming in 2018 and presidential elections in 2020, Parties and the President must decide whether it would be better to allow a government shutdown then to cede their policy concerns. The spending bill is currently stalled over immigration issues. A bipartisan proposal was recently rejected by President Trump, who wanted stronger restrictions on immigration and more funding for his border wall. The Democrats meanwhile are unwilling to cede on certain immigration issues, such as an easier path to citizenship for the dreamers. So the question is then, if the current stalemate were to result in a government shutdown, which party would it reflect poorly on?

President Trump recently tweeted that “the Democrats want to shut down the Government over Amnesty for all and Border Security.” Meanwhile, Democrats are claiming that the President is racist, citing his “shithole” comment. In 2013, both parties tried to blame the other for the government shutdown. Therefore, it is possible that no party will look good in light of a government shutdown. But the President might: Trump has tweeted before that the government needs a good shutdown, and indeed, the comment is in line with the anti-government rhetoric upon which he ran. It may be that the Republican party will be harmed by a government shutdown, however if Trump comes out unharmed, it won’t matter.

ap18009641510185.jpgAssociated Press/Evan Vucci

In 24 hours, Mr. Trump demonstrates the whole spectrum of his unfitness

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By Frank Bowman

The media are understandably abuzz with reports about Mr. Trump’s use during yesterday’s White House meeting on immigration of a vulgarity to refer to Haiti, El Salvador, and some African nations.  But the horrified focus on the phrase “s***-hole countries” has served to obscure the multiple ways in which, during a single day, Mr. Trump displayed his unfitness for the presidency.

The “s***-hole countries” comment does perhaps deserve pride of place because it illustrates at least two disqualifying character traits.

First, although I am deeply reluctant to get into the business of assessing anyone else’s racial attitudes (none of us being pristine in this regard), it is darn near impossible to hear Mr. Trump’s vulgar denigration of countries populated by brown people as anything other than a manifestation of personal prejudice, particularly in light of his reported enthusiasm in the same meeting for immigration from places like Norway.  And even if, as Mr. Trump’s defenders are valiantly seeking to do, one could explain away this particular remark, it was not an isolated incident.  His consistent use of overt or barely coded racial appeals compels the conclusion that he is either personally bigoted or is at the least prepared to play on the prejudices of  a segment of the public to advance his political ends.  Either characteristic should be disqualifying in a president because it places him in opposition to the founding ideals of the country (“all men are created equal”) and core legal principles written into the constitution and statutory law.

Second, the use of a racially-charged vulgarity in the setting of a delicate negotiation with congressional leaders is a demonstration of personal indiscipline and professional incompetence. Among a president’s primary jobs are the practical one of helping to guide the legislative process toward enactments consistent with the administration program and the aspirational one of acting as a behavioral exemplar to the country.  It goes without saying that public displays of vulgarity and racial insensitivity hardly uplift the nation. But anyone who does not understand that behavior of this sort is almost sure to mortally offend those with whom one is negotiating and thus to derail the negotiation has no business in any executive position, much less the Oval Office.

That said, the “s***-hole countries” incident actually pales in comparison to several remarks Mr. Trump made during a Thursday interview with the Wall Street Journal.  I’ll mention only two here.

During a discussion of the recently released tell-all book, Fire & Fury, Mr. Trump repeated his previously expressed view that libel laws should be strengthened, and went on to complain that this would not happen because “congress doesn’t have the ‘guts’ for that debate.”  This is profoundly troubling for two reasons.

First, it is of a piece with Mr. Trump’s continued disparagement of the press.  All presidents are at times resentful of the media.  And there’s nothing inherently wrong with presidential criticism of either particular coverage or the general approach of the 4th Estate.  But a president should not, consistent with his obligation to support and defend the constitution, actively seek to undermine the free press guaranteed by the First Amendment.  Mr. Trump’s behavior has consistently run very close to that impermissible line, if indeed it has not already crossed it. Indeed, Trump’s virulent disparagement of all media not overtly adulatory of him is distressingly consistent with the approach taken by anti-democratic authoritarian leaders of the past century.

Second, Mr. Trump’s criticism of Congress for failing to change libel laws illustrates — once again — his yawning ignorance of American law and government.  There is no federal libel statute.  Libel law is a matter of state jurisdiction.  This is not to rule out absolutely the possibility that, in theory, congress could pass a national libel statute. But it would seem quite difficult to find a constitutional warrant for doing so even in an expansive reading of the commerce clause.  And more to the point, by immemorial American practice, libel is a state matter.

Mr. Trump’s defenders would no doubt respond that this is a picky, technical legal point that only an academic pointy-head would care about.  But that’s precisely wrong. A president should know this sort of thing.  It’s part of the background knowledge of American public life that should be a minimal qualification for the presidential office. But even more critically, a president who is actively proposing congressional action in a particular area has an obligation to find out the status of current law and to identify the appropriate body to make changes before he shoots off his mouth.

No president can know everything.  All presidents, even deeply experienced ones, come to office with big gaps in their knowledge.  But a minimal expectation of any president is that he or she become informed before advocating important changes in federal law.

During the Wall Street Journal interview, Mr. Trump also contended that text messages sent by an FBI agent during the campaign criticizing Trump and expressing dismay at the possibility of his election amounted to “treason.”  This comment, too, illustrates multiple disqualifying Trumpian traits.

First, just as with the libel remark, Mr. Trump demonstrates a sad ignorance of the law.  Treason is the one offense named and defined in the constitution itself, which provides that treason “shall consist only in levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.”  Whatever the FBI agent’s texts may be, they are not treason.

Again, Mr. Trump’s defenders may say that this is picayune legal nicety.  But it’s not.  A president is supposed to know what the constitution says.  And even if he doesn’t remember the place of “treason” in the constitution, a president should never publicly accuse someone of a capital crime – which treason is – without at a minimum fully and carefully considering whether the accusation has any merit. Indeed, the best practice is for presidents to studiously avoid publicly accusing people of crimes at all, since doing so both damages the reputation of the accused in a forum where he has no opportunity to respond and preempts the role of the Justice Department in determining through formal legal processes whether charges should be preferred against anyone.

Second, and more distressingly, the accusation of treason here is yet another in the steady stream of examples of Mr. Trump characterizing his opponents as criminals and criticism of him as something to be suppressed by either civil law (libel) or criminal prosecution (treason). It becomes plainer by the day that Mr. Trump increasingly conceives of himself as indivisible from the country, that, incredibly in an American president, he subscribes to Louis XIV’s view that “L’etat c’est moi.”  Only for a man who sees the world this way is this accusation of treason comprehensible.

Our national crisis deepens.

Frank Bowman

 

Bipartisan Rejection of Sh–hole Comment

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Congressmen from both the Republican and Democratic parties are condemning the President’s comment on the bipartisan immigration bill. Trump reportedly questioned why we were accepting immigrants from “shithole countries” such as Haiti. Both Republican and Democratic congressmen have stated that the comment was offensive and unacceptable. There has been an international reaction to the comment as well: the United Nations Human Rights Office said the comment was “xenophobic,” and the African Continental Body said the comment was “alarming.” Trump now denies that he made the comment.

Though his comment was offensive, it is certainly not the first offensive comment the President has made. One can hope that this comment will be the proverbial straw that will finally break the Country’s, and Republican’s, tolerance of the President, but that much remains to be seen.

ct-trump-immigrants-shithole-countries-20180111.jpgEvan Vucci / AP

Is Trump Losing his Political Identity?

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Two events have caused commentators to question President Trump’s political identity. The first is the meeting on immigration he held with both Democrats and Republicans. Some are saying the President, in an effort to prove his competence, came off as a yes-man, agreeing with conflicting assertions proposed by both parties, and allowing for pork barreling by the congressmen. Trump’s behavior at the meeting has received push back from republican icons such as Ann Coulter. who said he “agree[d] with whatever the last person who sp[oke] . . . . said.” The second event is President Trump’s announcement that he will be attending the World Economic Forum in Davos, Switzerland. Though Trump’s press secretary has said he is attending the conference to talk about “America first” policy, his attendance contradicts the anti-elitist base upon which he ran for the Presidency. Therefore, Americans should be left confused at to what President Trump stands for.

It is unclear how this confusion will affect Trump’s support, but it may be to his advantage. If Republican Congressmen are unwilling to scrutinize the President, then they need only a few examples of his fitness to justify their support. Though the President’s behavior may be contradictory, it is just the sort of smoke bomb he needs to buy himself some time.

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Mueller to Interview Trump

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Special Counsel Mueller intends to interview President Trump soon, a decision which some believe signals the nearing of the end of his investigation. Though Trump has said that he is happy to talk about Russian collusion, a conversation he believes he will clear his name, his lawyers are scrambling to find a way to avoid or limit Mueller’s interview. Commentators believe what they are trying to avoid are questions about obstruction of justice: namely the firing of former FBI Director James Comey, and the lies former national security adviser, Michael Flynn, told the FBI.

Regardless of the motive for the interview, however, the timing could not be better for Democrats. With the 2018 midterms fast approaching, should Mueller’s investigation come to a close soon, its results may be a boon to Democrats running for Congress. And of course, if Democrats are able to obtain a majority in the House and Senate, impeachment will become more likely.

robert-mueller-mckelvey_j4wbro.jpegAlex Wong/Getty Images