Flynn Cuts off Communication with Trump

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This article from the Washington Post, reports that former National Security Adviser Michael Flynn’s legal team has halted communication with President Donald Trump’s legal team. Norm Eisen, who has worked with Special Counsel Mueller before, believes that the reason for that is that Flynn is planning to implicate a ‘higher up’ in the Trump campaign — possibly Trump himself. That could leave the President on the hook for either collusion or obstruction of justice; either of which is an impeachable offense.

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What’s all this talk of too soon?

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Amidst calls for impeachment by both congressmen and the public, some Democrats say the move is premature. Amongst these are House Minority Leader Nancy Pelosi and Senate Minority Leader Charles Schumer who warned the Democrats might “blow their shot.”

But why should premature calls for impeachment make it any less likely? An answer can be found by examing voter turnout trends for midterm elections. If there is to be any hope for impeachment, Democrats need to regain the majority in both houses of Congress. In order to do this in a timely manner, they must win seats in the 2018 midterm elections. If the 2018 elections follow historical trends, things are looking good for impeachment. Historically there has been a presidential penalty. The presidential penalty is caused by voter dissatisfaction with the Office, and generally causes the President’s party to lose seats. Additionally, James E. Campbell described midterm elections as lacking in the “wow” factor of presdential elections, which causes them to have relatively stable turnout compared to the volatile, party driven turnout of presidential elections. That being said, if the 2018 midterms become about whether or not President Trump will be removed from office, they may receive a voter turnout similar to a presidential election. That could be disadvantageous to the Democrats. Rather than Trump supporters staying home and letting the presidential penalty take effect, they may very well surge the polls in defense of their President.

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A Pillar of the Temple Trembles: The Trumpist Assault on the Department of Justice

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In the fall of 1979, I took my first legal job. By astounding good fortune, I was hired fresh out of law school as a Trial Attorney in the Criminal Division of the U.S. Department of Justice in Washington, D.C. From the moment I first walked into the monumental neoclassical Main Justice Building on Pennsylvania Avenue, I knew that I’d come to a unique place.  The marble, the statuary, the New Deal-era murals, the glorious main library’s vaulted ceilings, gleaming oak, and book-laden shelves, and the pervasive air of deliberative rectitude and high seriousness enthralled me.

To be honest, I wasn’t a particularly good prosecutor to start with.  I was too young, too immature, too undisciplined.  But if I didn’t give the Justice Department all it deserved at the beginning of my career, it placed an indelible stamp on me.  During two tours with the Department, in which I served under Presidents Carter, Reagan, Bush Sr., and Clinton, I shed most of my initial gauzily romantic infatuation.  But in its place grew a deep appreciation of the central role the Justice Department plays in maintaining the rule of law in a democratic state and a hardnosed set of convictions about the values that must inform the Department’s work if republican government is to survive in America.

Mr. Trump and the congressional Republican Party are on the brink of grievously wounding the Department of Justice. If they succeed, they will have weakened, perhaps permanently, a pillar of American constitutionalism and one of its most important bulwarks against creeping autocracy.  Let me explain:

The U.S. Department of Justice is immensely powerful.  Neither its reach nor its resources are infinite.  But as to any individual, group, or corporation it elects to pursue, it can bring to bear nearly unlimited money, dedicated staff, and first-rank legal talent. Those lawyers are empowered to direct the immense resources of multiple federal law enforcement agencies — FBI, DEA, ATF, Secret Service, Customs, ICE, postal inspectors, and more. In appropriate cases, they can deploy investigators and experts from federal regulatory agencies like the SEC, the EPA, OSHA, and the FDA, and even in certain circumstances, military and intelligence assets.  Only Justice Department prosecutors can command the unmatched coercive powers of a federal grand jury.  Only federal prosecutors have the luxury of selecting criminal charges from the sprawling federal code, a body of law so all-encompassing that it is only slightly facetious to suggest that it criminalizes some aspect of virtually every human activity.  And the Department’s long arm can reach into every state and across oceans.

Some observers are understandably leery of DOJ’s immense power. But in the modern world, this power is essential. Without it, there would be no authority capable of combating organized crime, international criminal cartels, domestic terrorism, entrenched federal, state, and local political corruption, or complex financial fraud.  Without the Department of Justice, there would be no effective public counterweight to the staggering wealth and sometimes pernicious influence of modern multinational corporations.  The private centers of power Teddy Roosevelt labeled “malefactors of great wealth” have in our day metastasized to a degree T.R. could not have imagined.  Without DOJ, they would be unchecked.

With the power to combat great evil necessarily comes the power to inflict great harm. Conviction of a federal crime can mean imprisonment, impoverishment, even death.  Its collateral consequences can include public stigma, loss of livelihood, and destruction of family.  Even the wealthiest corporations – Enron and Arthur Andersen, to name but two – can be destroyed.  Just being investigated by DOJ can inflict a steep price in time, money, and sullied reputation.

Power this crushing is only tolerable in a free society if it is exercised — and generally believed to be exercised — impartially, humanely, and in the interests of justice in the broadest and best sense. My youthful infatuation with the Department, and my lifelong affection for it, rests on the conviction that, with occasional exceptions inevitable in any human institution, the men and women of the Department, both career public servants and political appointees, are conscious of their grave responsibility and strive to wield their power impartially and with honor.  Critically, the Department’s people have fiercely resisted pressure to ignore the crimes of officeholders and their friends, or to transform the sword of criminal justice into a weapon against the political opponents of the sitting president.  Because of this tradition long upheld, the Department’s prosecutors enjoy a reputation for professional probity every bit as central to their success as the raw institutional power at their disposal.

It is by now obvious that Mr. Trump cares nothing about the institutional integrity of the Justice Department, and has actively tried to corrupt it.  He tried to convince FBI Director James Comey not to investigate presidential adviser Michael Flynn, and then fired Comey when the Director wouldn’t take the hint. He fulminates nearly daily about Robert Mueller’s investigation of Russian election interference and flirts publicly with obstructive maneuvers like firing Mueller, firing Attorney General Sessions, or pardoning everyone involved in the case. And recently he has tried to pressure the Department into investigating a series of long-resolved or self-evidently bogus allegations against his former opponent Hillary Clinton and other Democrats.

Trump’s effort to strong-arm the Department into abandoning its most basic values by initiating baseless, politically motivated investigations is distressing enough.  I have argued previously that it constitutes an impeachable offense. But one could (almost) dismiss Trump’s tweets and barks on this subject as yet another instance of his singular misunderstanding of American government.  And one could be comforted by the likelihood that his outbursts would be rendered ineffectual by the resistance they would surely encounter from others in government with a better sense of constitutional norms.

The Republicans on the House Judiciary Committee have now stripped away that comfort.  In late July, seventeen Republican committee members sent a letter to Jeff Sessions demanding that the Justice Department investigate a grab-bag of spurious charges against Secretary Clinton and others.  During Attorney General Sessions’ appearance before the committee earlier this week, Republican members hammered ceaselessly on their demand for a new special prosecutor to investigate Secretary Clinton, with special emphasis on long-since debunked claims about the so-called “Uranium One” affair.  Sessions has yielded at least so far as to assign “senior federal prosecutors” to assess the Republicans’ requests.

I am not sure people understand how shatteringly consequential this is.  It is bad enough to have Mr. Trump – whom, sadly, no one now expects to understand democratic norms — seek to weaponize the Department of Justice.  But what we have witnessed in the months leading up to the Sessions hearing is the utter moral degradation of House Republicans. Seventeen Republican congressmen, virtually all lawyers, many of them former prosecutors, specially selected by their party to sit on a Committee dedicated to ensuring the integrity of the American justice system, are demanding that the Justice Department investigate a list of allegations almost every one of which is obviously either legally or factually baseless. And the Republicans know it.  No sentient lawyer could think otherwise.

The game here is obvious.  The Mueller investigation into the real effort, attested to by every U.S. intelligence agency, of the Russians to rig an American presidential election is hurting Mr. Trump and the Republicans politically. It hurts so much precisely because it is being conducted by the Department of Justice under the direction of a Republican prosecutor of impeccable credentials.  Republican members of the Judiciary Committee desperately want to create a diversion, a means of planting in the public mind the impression that, whatever Trump did, Democrats did something as bad or worse.  It doesn’t matter if any real crime is uncovered, only that an investigation, with all the inevitable publicity, be commenced.  Of course, the House could investigate all these matters itself.   But the Republicans know that such investigations are easily dismissed as partisan.  Thus, only an investigation that bears the trusted stamp of the Justice Department will serve their political ends.

In short, the congressional Republican Party is consciously attempting to use the Justice Department’s hard-won, carefully guarded reputation for fairness and integrity to create a diversion from the real issues being investigated by Robert Mueller and the political damage that investigation is causing Mr. Trump and his allies.

Whether Jeff Sessions will crumple under the mutually reinforcing pressures from Mr. Trump, congressional Republicans, and his own self-interest remains to be seen.  If he does, the long-term damage to both American electoral democracy and the rule of law could be profound.

Several commentators, including Republican stalwarts like former Attorney General Michael Mukasey, have observed that launching criminal investigations of defeated presidential candidates is contrary to American norms and akin to the practices of “banana republics.”  This is profoundly true, but I suspect many do not fully appreciate the reference.

An indispensable feature of successful democracies is the peaceful transfer of power from one elected administration to its popularly chosen successor. Such transfers reliably occur only if the loser of an election knows that the sole consequence of losing is a return to private life. But if the predictable consequence of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants are tempted to ever more extreme measures to prevent it.  Vicious propaganda, overt corruption, strong-arm tactics, ethnic incitement, all can be rationalized. All are soon normalized.  And democracy dies.  This is the all-too-common story in the developing world.  But regression is perfectly possible among mature democracies like our own.

Even if nothing quite so dramatic occurs and the Republican push for a Potemkin special prosecutor produces only a long, distracting, but ultimately unsuccessful investigation of Mr. Trump’s opponents, the damage to the Justice Department and thus to the rule of law would be lasting.  The best reading of the Department’s enigmatic Latin motto, Qui Pro Domina Justitia Sequitur, is that the Department’s lawyers are those “who prosecute on behalf of justice.” We trust the Justice Department with its immense powers because we trust it to wield those powers in pursuit of justice – to be honest, to be fair, to be apolitical.  And the Justice Department owes its effectiveness before courts and juries to our confidence in its probity.  If the public ever surrenders that confidence in favor of enduring suspicion that the Department is merely a tool of the party occupying the White House, then federal law enforcement will be irremediably crippled.  Every corrupt politician, slimy fraudster, and predatory corporation will scream “Politics!” at the first hint of a federal indictment.  Some will be believed.  And all of us will be less secure.

Not too long after the last election, I was on Capitol Hill talking with an aide to a Republican senator.  The probable appointment of Jeff Sessions as attorney general came up. When I wrinkled my nose a bit, my companion said, “At least with Jeff Sessions, you get a guy who knows the Justice Department and is committed to the rule of law.”

We will soon see if he was right.  Or whether Mr. Sessions will set in motion a train of events that could fracture an institution central to American democracy.

Frank Bowman

 

 

 

“Standing” in the Emoluments Lawsuits Against Mr. Trump: An Answer to a Reader’s Question

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Reader Richard Weisfeld has asked a question that may puzzle others.  He writes:

I’d be thankful if you could offer some insight: I’ve read about “standing”, a concept I generally do understand, even as a layman, in regard to the foreign emoluments clause. Specifically, I read that Washington DC hotel owners needed to bring suit, because they had standing, having lost business to the Trump Hotel. Where does the idea come from that this clause was somehow in the constitution to protect businesses from the president and unfair competition, as opposed to being there to protect every American citizen, and the republic itself, from corrupt presidents, or presidents who would be swayed by foreign powers or entities, to take actions against the interests of the United States? How is that not the obvious primary purpose for the clause? How does every citizen not have standing? There must be some historic line of reasoning, but I have not heard one explained or reported.

This is a great question, and resolving it presents perhaps the largest challenge to the plaintiffs in the emoluments lawsuits.  The short answer runs like this —

Leaving the emoluments clauses to one side for a moment, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case, liability in a civil case, or an order of injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions on a matter that has not actually manifested itself in a concrete real world dispute.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute. This is a problem in the emoluments clause suits against Mr. Trump. As Mr. Weisfeld points out, in a general sense, all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required. Hence, the hotel owners — the argument being that Mr. Trump is violating the foreign emoluments clause by drawing foreign government guests to his Washington hotel and thus causing a discrete injury to other hoteliers who would otherwise get the business.

I am not an expert on standing in federal civil actions, and thus have no intelligent opinion about this approach. I have to say, however, that it feels thin to me. Better informed observers than I have opined that this may prove to be the Achilles heel of the plaintiffs’ case.

Even if the courts grant standing to some of the emoluments plaintiffs, and if the courts conclude that the president is covered by the foreign emoluments clause, and if the courts conclude that some kinds of commercial transactions qualify as prohibited emoluments, there remains the question of remedy. Perhaps a court could order a president to disgorge payments received as prohibited foreign emoluments. Perhaps it could issue an injunction ordering him to cease engaging in activities that violated the clause. So, at best, the current private lawsuits annoy Mr. Trump, strip him of some cash, and prevent him from making some more in the future. But even if a court decides to go that far, it cannot order the president to vacate his office.

If that’s right, you may well ask, “Then what good is the foreign emoluments clause?” The answer, I think, is that the Framers plainly believed that a president could be impeached for a violation of the clause. Edmund Randolph, a member of the Virginia delegation to the Philadelphia convention, said in the later Virginia Ratifying Convention:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached.

Thus, it may well prove that there is no meaningful remedy available in courts for presidential violations of the emoluments clauses, and that the only meaningful remedy for such a violation is to impeach, convict, and remove the president under Article II, Section 4.

Frank Bowman

Cohen Files Articles of Impeachment

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Articles of Impeach, sponsored by Representative Steven Cohen, were filed in the House today. Five other House Democrats joined Cohen in endorsing the articles: Luis GutierrezAl GreenMarcia FudgeJohn Yarmuth, and Adriano Espaillat. The articles charge President Trump with obstruction of justice, violation of the foreign emoluments clause, and undermining American institutions, specifically the courts and press.

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The Russian collusion investigation: Bumbling grifters & the risks of keeping it all in the family

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Earlier this week, I had the pleasure of doing an interview with Canada’s CTV network on developments in, and speculations about, the progress of the Mueller investigation.  The anchor wanted to talk about the testimony of  former Trump campaign foreign policy advisor, Carter Page, to the House Select Committee on Intelligence, Attorney General Session’s upcoming appearance before the House Judiciary Committee, and the rumor that an indictment of former Trump National Security Advisor Michael Flynn (and possibly his son) will soon be forthcoming.

I can’t say that I had anything particularly novel to tell Canada’s TV audience about any of these subjects, but reflecting on the interview has provoked a couple of observations.

First, as I have had occasion to observe before, passionate opponents of Mr. Trump who confidently expect (or even fervently hope) that the Mueller investigation of Russia-Trump campaign collusion in the recent election will produce some smoking gun that will lead naturally to articles of impeachment should moderate their expectations.  So far, at least, the picture is not one of sophisticated, nefarious, high-level Trump operatives working hand-in-glove with agents of the Russian government, but of something altogether murkier and more ambiguous.

To be sure, there exists nearly irrefutable evidence that the Kremlin was working hard through every means at its disposal to harm the Clinton campaign and help Mr. Trump. Mr. Putin’s repeated denials that Russia was meddling and Mr. Trump’s on-againoff-again acceptance of those denials may convince his endlessly credulous base, but outside those blinkered precincts it merely prolongs the bizarre spectacle of an American president siding with the dictator of a hostile foreign power against the conclusions of his own intelligence agencies.

(As an aside, when I began drafting this post, Mr. Trump had just said that he accepted as sincere Putin’s denial of meddling.  Mere hours later, Trump straddled the question, saying that he accepts both the findings of U.S. intelligence and Putin’s sincerity.  This waffling is either: (a) Yet another example of Mr. Trump’s persistent tendency to say whatever he thinks will please the audience immediately in front of him, with no thought for either truth or how today’s effort to ingratiate will affect his own or the country’s interests tomorrow; (b) Yet another example of Mr. Trump’s seeming inability to engage in rudimentary critical thinking — the idea that the Russian government could engage in a wide-ranging effort to influence the American presidential election without the knowledge or approval of Vladimir Putin is laughable, and thus it is impossible for U.S. intelligence to be right and for Putin to be sincere; or (c) Just another manifestation of Mr. Trump’s knee-jerk rejection of any fact, however firmly established, that might suggest his election victory was due to anything other than his own personal merits. My best guess is that all three factors were at work.)

But it is not a crime or an impeachable offense merely to be the unwitting beneficiary of foreign efforts to damage one’s political adversaries.  What must be shown to prove a crime is that affiliates of the Trump campaign consciously aided or sought to aid the Russians’ subversion and violated some statute in the process.  What must be shown for any of this to amount to an impeachable offense is that Mr. Trump himself approved, was aware of and failed to stop, or later tried to cover up culpable conduct by his subordinates.

It is too early to assess the ultimate question about whether culpable collusion occurred.  But the emerging (though far from complete) evidence suggests at least three points about the Trump campaign’s Russian contacts:

  • Repeated claims by Mr. Trump and his subordinates that there were no contacts between persons associated with the Trump campaign and Russian officials or agents were simply untrue.  As the Chicago Tribune summarizes, at least nine people in the Trump orbit had Russian contacts during the campaign or transition.
  • At least some of those contacts involved persons high up in the campaign hierarchy or personally close to Mr. Trump, people like Donald Trump, Jr., Jared Kushner, Paul Manafort, and Jeff Sessions.  Others, like George Papadopoulos and Carter Page, had impressive-sounding titles like “foreign policy adviser,” but  were in reality on the fringes of what was always a barely coherent campaign organization. Nonetheless, it is now clear that campaign higher-ups, like Senator Sessions, Stephen Miller, Hope Hicks, J.D. Gordon, campaign manager Cory Lewandowski, and national campaign co-chair Sam Clovis, knew about the Page and/or Papadopolous contacts.
  • Whether contacts between Trump surrogates and Russian actors ever produced concrete results, such as the direct transfer to the Trump campaign of negative information about Secretary Clinton or her team, remains unclear … and frankly seems doubtful.  What is clear is that multiple members of the Trump entourage were willing and eager to receive that kind of material — even when it was plain that the source would have to have been Russian intelligence services, and that the means employed to obtain the material would likely have involved violations of American law. The first proof of their eagerness was the now-famous Donald Trump Jr. – Kushner – Manafort meeting with the Russian lawyer.  Now Mr. Papodopoulos admits to having received a purported Russian offer of “dirt” on Secretary Clinton in the form of emails, and to have passed the offer along to Trump campaign officials.
  • If, in the end, Trumpists and Russian emissaries never quite did a deal that produced active cooperation or transmission of opposition research “deliverables,” efforts to cover up all the active flirtation could nonetheless amount to criminal obstruction of justice and even impeachable conduct.  That’s the thing to watch for in coming months.

Second, the overriding impression, reinforced by each new revelation, is that both the inner circle of the Trump campaign and the outer rings of staff, consultants, and advisers consisted primarily of pathetically ill-informed amateurs like the Trump children and in-laws, eccentrics like Carter Page, desperate wanna-be‘s like George Papodopoulos, or outright scoundrels like Paul Manafort.  Even those with long government resumes and conventional credentials, like Trump’s short-tenured National Security Adviser Michael Flynn and Senator Jeff Sessions, gravitated to Trump because, in Flynn’s case, he had been expelled from the circles of power for persistent bad judgment, and in Sessions’ case, he was a fringe player in the Senate, with views on many subjects too extreme even for for a caucus edging steadily to the right, and no path to any meaningful leadership role.

Moreover, the one character trait common to virtually all of this ill-assorted crew is greedy opportunism. The Trump family, from the paterfamilias on down, has profited by skating on or over the edge of legality for decades and has been monetizing its connection to the presidency ever since the election.  Manafort’s long career as apologist for thugs and dictators should have disqualified him from a role in any American presidential campaign, and predictably has both embroiled Trump in controversy and produced an indictment founded in part on money laundering and tax evasion. Page reportedly combined his Russian overtures for Trump with efforts to secure private deals for himself.  Michael Flynn is under investigation for an array of dodgy, but potentially lucrative, deals, as well as illegal failures to report work on behalf of authoritarian regimes like that of ascendant Turkish dictator Recip Erdogan.

The mix of incompetence, bad judgment, blithe disregard of normal legal and ethical boundaries, and personal greed in the Trump campaign is both a gift and an impediment to any effort to impeach Mr. Trump.

On the one hand, it is increasingly obvious that people high and low in the Trump campaign were trying quite hard to collude with a hostile foreign power to win a presidential election.  On the other hand, it may prove that the Russians simply didn’t trust these escapees from the Island of Misfit Toys enough to enter into any active collaboration, preferring to feed toxic misinformation to the American electorate indirectly through Wikileaks and directly through social media.  Now that Mr. Trump has shed virtually all of the primary actors in the Russian contacts — with the notable exceptions of his family members — he can disavow former staffers’ conduct as the inconsequential bumbling of fringe nobodies.

BUT — having foolishly chosen to ignore settled norms against nepotism in the White House, Mr. Trump is probably stuck with whatever the kids have done or may yet do. Even an ordinary father would shrink from throwing his children overboard and into the clutches of waiting prosecutors, but in Mr. Trump’s case, ordinary considerations of paternal affection are infinitely complicated by the fact that the Trump campaign was, and the Trump Organization remains, a family business … and the kids, notably including son-in-law Jared Kushner, are privy to their secrets.  Perhaps Ivanka or Don Jr. might be willing to take a fall for dear old dad.  Were I Mr. Trump, I would not bet that, at the last extremity, young Mr. Kushner would do the same.

Thus, Mr. Trump will never be able to make a clean break from the Russian meddling investigation. Some of its central figures will remain close to him.  He will continue defending them.  And as in Watergate, it may prove that the cover-up, rather than the original wrong, will be his undoing.

Finally, it would be easy to dismiss the near-universal obsession of those around the Trumps with self-enrichment through politics as a side issue.  For two reasons, it’s not.

First, as Mr. Manafort recently discovered, the United States has a web of laws that regulate, and often criminalize, aspects of the “deals” he and his ilk are so eager to make.  Those laws are a tool box for Robert Mueller’s prosecutors, and the questionable financial motives and maneuvers of those involved in contacts with Russian representatives will provide legitimate grounds for inquiring deeply into financial matters the Trumps would surely prefer remain hidden.

Second, to the extent Mr. Mueller’s investigation or other sources reveal that Mr. Trump and family have used the presidency for personal profit, such disclosures implicate at least two grounds for impeachment.  The most obvious of these is violation of the emoluments clauses.  But I would go a bit further.  I do not believe that a technical violation of, for example, the foreign emoluments clause of Article I, Section 9, is required to make out an impeachable offense if it could be shown that, as James Madison put it, the president “pervert[s] his administration into a scheme of peculation.”

I will expand on this latter point in later posts.  Stay tuned.

Frank Bowman

 

 

 

Trump Waffles on Putin’s Denial

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President Trump met with Vladmir Putin informally at the Asia-Pacific Summit on Saturday. He emerged from the meeting reiterating that Putin denied allegations that he had intermeddled with the 2016 presidential election, and claiming that he believed the Russian President. After a strong reaction from the intelligence community, Trump backpedaled his statement, claiming he sides with “our agencies.”

Though Trump now claims to side with the intelligence community, he has done so only through an ambiguous statement of loyalty. It is an especially fledging remark in light of his long defense of Putin, and his attempts to quash the Russian interference story. The President has even gone so far as to direct CIA Director Mike Pompeo to meet with William Binney, a former member of the intelligence community who believes the Democratic National Convention email scandal was an inside job. So, one must wonder what Trump means when he claims to “be with our agencies,” and whether he believes he can be with Putin simultaneously.

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Green’s Articles of Impeachment

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Rep. Al Green, who read his article of impeachment on the House floor last month, is now pledging to put the articles to a vote by Christmas. 

Green’s articles of impeachment, which can be read here, allege that President Trump has “undermined the integrity of his office,” and “brought disrepute on the presidency.” His articles cite specific acts of the President including demonstrations of bigotry and racism through sexist remarks, demeaning NFL players, imposing a Muslim travel ban, accusing President Obama of tapping his phones, and suggesting that transgendered people should not be allowed in the military. Additionally, he alleges Trump promoted violence through his support of the Charlottesville protesters, behaved dishonestly by claiming he won the popular vote, and degraded constitutional rights by suggesting police not act kindly to arrestees.

How much support Al Green’s articles of impeachment will have in the House remains unclear.

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Impeachment and the Power of Propaganda

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Several days ago, I was pleased to have Slate publish my post on this blog asserting that Mr. Trump’s efforts to induce federal law enforcement agencies to investigate his political enemies constitute an impeachable offense. One of the most fascinating aspects of those occasions when this blog’s content gets a national audience is getting a blast of feedback from reader comments.

Sometimes, astute readers will point to apparent gaps in an argument or flaws in reasoning. That keeps me honest and can inspire further, and I hope better, analysis.  I think that was the case following my article on the pardon of Sheriff Arpaio, where reader comments led to a string of additional posts on particular aspects of that problem.

Other times, however, reader comments can drive me nearly to despair about the prospects for American democracy. At a minimum, they often highlight what may be an insuperable obstacle to any effort to remove Mr. Trump.  One comment posted directly to this blog this morning illustrates the problem starkly. To summarize, the reader made three points:

(1) He said that “by your [meaning Bowman’s] logic,” Bill and Hillary Clinton, President Obama, and Bob Mueller should be “investigated and charged with treason for the Uranium One deal,” the Clintons should be hung, and Mr. Mueller should be imprisoned for life as their “bag man.”

(2) He said, “And you mentioned Benghazi and the culpability of Ms. Clinton and Obama and others” for the deaths of several U.S. Embassy employees.

(3) He concluded that my argument for the impeachability of Mr. Trump for attempting to use law enforcement agencies against his enemies demonstrated “why our children that attend institutions of ‘higher’ learning come out indoctrinated in Marxism and Maoisum [sic].”

Of course, it goes without saying that nothing in my article implied that the Uranium One affair has any substance or that the Clintons, President Obama, or Mr. Mueller have any culpability, legal or otherwise in connection with it.  Indeed, my piece contained multiple links to authorities carefully explaining why the Uranium One affair is an invented non-story.  The reader made no reference to those sources and no attempt to rebut the facts they lay out.  Moreover, the reader had obviously made no effort to reflect on the sheer absurdity of what he was saying.  Leaving the mountain of other impossibilities in the Uranium One conspiracy theory to one side, the idea that Bob Mueller — decorated Marine veteran, career federal prosecutor, former FBI Director appointed by George W. Bush, and lifelong Republican — is a “bagman” for the Clintons is just daft.

More revealingly, the reader claims that I “mentioned Benghazi” when, of course, there is no reference whatever to Benghazi in my article, and in any event, whatever happened in Benghazi is utterly irrelevant to my thesis.  And, perhaps inevitably, the reader concluded with the assertion that, because I am a professor, I am part of the grand conspiracy in higher education to indoctrinate America’s youth into communism.

It is easy to sneer derisively at this sort of thing and to dismiss the reader as a “wing nut.”  But that is the exact reverse of my point.  The reader is plainly a person of some intelligence and politically aware enough to follow current news and read and comment on articles like mine.  Yet he has so far surrendered his own critical faculties to the echo chamber of the segment of the media he consumes that he is apparently unable, or at least unwilling, to make independent judgments.  If he allowed himself to think independently, to analyze critically the information he’s getting, he’d see for himself the manifest weakness of the claims he’s making. Again, this a pretty smart person.   Yet his response to an article suggesting that Mr. Trump has violated basic American political norms is almost Pavlovian — Uranium One, Benghazi, professors are Commies.

I do not mean to suggest that if this reader, and the millions of others with similar habits of thought, adopted a more critical stance to what they hear and read that they would all become happy liberal Democrats.  That’s silly.  What the country desperately needs is not a uniformly liberal electorate, but a uniformly literate and reflective electorate.  We need intelligent, independent, critical thinkers on the right every bit as much as we need them on the left and in the center.

It is hardly a novel observation that American voters are increasingly isolated in their own information echo chambers.  This is deeply unhealthy for our democracy.  And this phenomenon has particular implications in the context of possible impeachment of Mr. Trump.  The success of the impeachment investigation that led to the resignation of Richard Nixon was possible only because the majority of Republicans, both elected officials and ordinary citizens, were finally convinced that their president had misbehaved badly enough that he had to go.  The slow conversion of millions of reliable Republican partisans was possible only because Americans of all political persuasions shared norms of acceptable and unacceptable political behavior, and because almost everyone trusted institutions like the major organs of the press, the courts, and the Justice Department as fair arbiters of truth and falsity.

We no longer inhabit that world. Mr. Trump daily challenges the norms that support democratic governance, but they have been under assault for a long time.  And people on both sides of the political divide have slowly migrated into information silos that armor them against critical thought.  That said, the information silo effect is notably worse on the right.  As I have observed repeatedly here, Mr. Trump himself lies pervasively and obsessively, and an entire segment of the media has perverted itself to excuse or amplify even his most nonsensical claims.  The success of this effort is sadly evident in my reader’s comments, which exemplify the views of a large, and politically critical, segment of Republican voters.

In the end, if the seemingly impermeable information barrier around the Republican base cannot be breached, it will not matter what Mr. Mueller uncovers or how egregiously Mr. Trump abuses his office. Regardless of the objective facts, even if Democrats capture the House in 2018, neither impeachment, nor indeed healthy politics of any kind, are in our immediate future.

Frank Bowman

Trump commits another impeachable offense: Siccing federal criminal investigators on his enemies

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On July 27, 1974, the House Judiciary Committee approved three articles of impeachment against Richard M. Nixon. The second article charged that President Nixon abused the powers of the presidency either by using or trying to use federal investigative agencies against his political enemies or by interfering or trying to interfere with lawful investigations by those agencies into his own wrongdoing or that of his subordinates.  He tried to get dirt on his opponents through the IRS. He ordered the FBI to conduct investigations of actual or suspected enemies in and outside of government. He sought to suppress investigations into the growing Watergate scandal. As the fifth specification of the article of impeachment put it:

In disregard of the rule of law, he knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

In short, the House Judiciary Committee voted to impeach Richard Nixon because he sought to turn the immense power of the Justice Department and federal criminal investigative agencies against his political adversaries. Although this article of impeachment was never approved by the full House of Representatives because Nixon resigned before a vote could be taken, it received more votes in committee than any other proposed article. No respectable scholar of the constitution doubts that directing the criminal justice and intelligence systems of the United States against political opponents for purposes unrelated to the impartial enforcement of the law or preservation of legitimate national security interests is among the impeachable “high Crimes & Misdemeanors” of Article II, Section 4.

This morning, Friday, November 3, Mr. Trump sent out a series of Tweets in which he explicitly urged the Justice Department and the FBI to investigate Hillary Clinton and the Democratic Party for a grab bag of supposed offenses — e-mails deleted from Secretary Clinton’s private server, the Russia-uranium kerfluffle, activities by Tony Podesta (lobbyist and brother of Secretary Clinton’s campaign manager), and the allegation that officials at the Democratic National Committee worked with Secretary Clinton’s campaign to give it a boost over that of Senator Bernie Sanders.

The Trump Tweet-string included these classics:

Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems..

….People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!

Mr. Trump followed up these Tweets with statements to the press in which he said he is “disappointed” with the Justice Department and would not rule out firing Attorney General Sessions if Sessions won’t investigate Democrats.

In my view, Mr. Trump’s tweets tiptoed right up to the line of an impeachable offense.  His subsequent statements to the press stepped firmly over it.

Using the Nixon precedent as a template, in order to show that Mr. Trump’s behavior is impeachable, several requirements must be met:

First, he must be seeking to employ the criminal investigative powers of the federal government against his political opponents.  That is unquestionably the case.

Second, he must be acting, in the words of the Nixon impeachment article, “for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.”  Although his most devoted adherents may claim otherwise, it is impossible to divine any legitimate, non-political, purpose in his call for action by the Justice Department.

  • Although it is doubtless a matter of intense interest for members of Democratic Party, whether the DNC did or didn’t favor Secretary Clinton can by no stretch be translated into a violation of law, and still less a fit subject for a criminal investigation by a Justice Department controlled by the opposing party.
  • The Clinton e-mail matter has already been investigated by the Justice Department, even if extreme Republican partisans may not have liked the outcome.
  • Tony Podesta’s activities are already the subject of inquiries by Special Counsel Robert Mueller, which is why Podesta just resigned from his own lobbying firm.  So Trump’s inclusion of Podesta in his broadside manifested either a scarcely credible ignorance of the state of play of an investigation with which Mr. Trump is plainly obsessed or a willful attempt to deflect attention from Mueller’s focus on Trump campaign affiliates.
  • And, as multiple credible observers have explained, the Russia-uranium-Clinton connection is an invented non-story. Jeffrey Lewis, a nuclear materials and non-proliferation expert, observed in Newsweek, “I have to say that this is one of those things where reasonable people cannot disagree: There just aren’t two sides.”

In short, every item on the laundry list of things for which Mr. Trump wants the Justice Department to investigate his political opponents is either not a crime, has already been or is being investigated, or, in the case of the Clinton-uranium “scandal,” is an invented storyline promoted by Mr. Trump and his supporters to divert attention from the Mueller investigation.

Third, it is not necessary to establish impeachable misconduct that a president succeed in bending law enforcement agencies to his corrupting purpose. While some of the law enforcement and intelligence officials Nixon tried to enlist in his illegal schemes cooperated, many refused or ignored his orders, the IRS, the CIA, and important elements of the FBI among them. His failed attempts to misuse federal agencies were nonetheless integral components of the impeachment case against him.

This is a key point in the present case. If pressed, Mr. Trump will no doubt claim that he didn’t order anybody to do anything and that his Tweets are, at worst, expressions of dismay at the established norm that bars presidents from direct involvement in Justice Department decisions. This is, of course, transparent eyewash.  When a President of the United States publicly proclaims that he wants an executive branch agency to do something and will be deeply displeased if it doesn’t, that’s tantamount to an order.

Even if it were not, Mr. Trump took the next and fateful step this morning when he expressed disappointment in the Justice Department for its inaction and held open the option of firing the Attorney General if his wishes were not honored.  That is as close to a direct order as a president can give without putting it in writing.  Any way you slice it, Mr. Trump is telling the Justice Department and the FBI that he wants them to engage in legally baseless, politically motivated criminal investigations.

Finally, it is not, cannot be, an excuse if Mr. Trump were to say, “Well, even though the uranium story and all the rest prove to be baseless, I didn’t know that. As I so often do, I was just responding to what ‘people are saying.'” As the Nixon articles of impeachment observed, a president has the solemn constitutional obligation to “take care that the laws shall be faithfully executed.”  If this duty means anything in the criminal justice setting, it means that presidents shoulder an obligation even more binding than that assumed by their subordinates not to unleash on any citizen the intrusive, life-altering power of federal investigative agencies absent credible evidence that a real crime may have been committed.

Let us be absolutely clear here. No matter how far Mr. Trump has warped our collective sense of what is normal or even minimally acceptable in an American president, it is not acceptable for a president either to employ, or threaten to employ, the agents and ministers of the criminal law of the United States against his enemies for political gain.  A president who does so engages in precisely the class of misconduct perilous to the maintenance of republican government for which the founders designed the remedy of impeachment.

When and if the political season is ever ripe for enumerating Mr. Trump’s “high Crimes & Misdemeanors” in articles of impeachment, his attempts to corrupt the American justice system should be among those articles.

Frank Bowman