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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: hillary clinton

E-Discovery in the Trump Age

04 Monday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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ABA Journal, Brett Kavanaugh, data, discovery, donald trump, electronic, Emails, hillary clinton, impeach, impeachable, Impeachment, jason krause, Michael Cohen, paul manafort, Robert Mueller, Rod Rosenstein, Special Counsel, technology

Jason Krause’s article, “But their emails! Some of the Most Contentious Political Issues are E-Discovery Disputes” published in the ABA Journal, explores the e-discovery disputes surrounding the Trump campaign and presidency and modern politics in general. He notes:

A [large] debate over preserving electronic evidence continues to hang over national politics. Donald Trump Jr.’s meetings with Russians, Michael Cohen’s plea bargain, Brett Kavanaugh’s contentious confirmation to the U.S. Supreme Court, Paul Manafort’s fraud convictions and an attempt at impeaching Deputy Attorney General Rod Rosenstein all involve, at their core, electronic evidence.

Living in the computer age means our political disputes, especially those with criminal consequences, will frequently turn on electronic data and discovery. Interested readers should follow the link above.

trumpclintonhandshakegetty_2.jpgGetty Images

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The Case for Impeachment of Donald Trump, Part 4 (Subversion of the justice system)

28 Monday Jan 2019

Posted by impeachableoffenses in Uncategorized

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Abraham Lincoln, Andrew Jackson, Brian Morris, bruce ohr, case for impeachment, Chief Justice John Roberts, Franklin D. Roosevelt, George Mason, Gonzalo Curiel, hillary clinton, James Robart, Jay Bybee, John Marshall, Obstruction of Justice, Richard Nixon, Roy Cohn, subversion of constitution, subversion of justice system, Thomas Jefferson, William Orrick

By Frank Bowman

Much of the public conversation about possible impeachable conduct by Mr. Trump has centered on obstruction of justice in the narrow sense of a violation of criminal statutes defining obstruction. I have discussed the legal issues surrounding the application of those statutes to Mr. Trump at length on this blog (see this link for a list of those posts). I will do so again once the Mueller investigation is complete. Until then, I am reluctant to offer a definitive view on whether Mr. Trump’s conduct constitutes obstruction in the legal sense or on whether such legal violations are of the type that constituted so large a part of the impeachment case against Richard Nixon.

Nonetheless, if the case for technical obstruction of justice remains uncertain, the conclusion that Mr. Trump has systematically sought to corrupt and subvert the justice system as a whole is ironclad.  Inasmuch as the health of the justice system is essential to the health of constitutional order, a presidential effort to undermine it deserves consideration as impeachable conduct.

Throughout his pre-presidential career in business, Mr. Trump viewed the law from two perspectives.  As the operator of multiple businesses some aspects of which, at best, skirted the edges of legality, Mr. Trump viewed the government’s civil and criminal enforcement agencies as opponents to be thwarted or circumvented.  Conversely, he learned early to use his money to employ private civil litigation as a weapon against personal and business adversaries.  As of 2016, he and his businesses had been involved in more 3,500 lawsuits.

Mr. Trump has carried his prior attitude toward the law into the White House.  Early in his presidency, exasperated by the pertinacious refusal of James Comey to back off the Russia investigation and by Attorney General Sessions’ decision to recuse himself from that investigation, Trump famously asked, “Where is my Roy Cohn?”  The reference being to the notoriously hard-nosed and questionably ethical lawyer who acted as Trump’s legal fixer and attack dog early in his career.  More disturbing than the desire for a personal legal heavy is the fact that Mr. Trump plainly imagines the role of the Department of Justice and the rest of the federal law enforcement establishment as defending him against legal inquiries and standing ready to use the law to discredit or even imprison his critics and opponents. 

The essence of Mr. Trump’s defensive approach has been to appoint justice officials chosen for personal loyalty (e.g., Jeff Sessions and Matthew Whitaker) and simultaneously to attack any official, whether political appointee or career civil servant, who pursues matters that might implicate Trump, his family, or his supporters.  When Sessions disappointed Trump’s expectations of servility by recusing himself from the Russia investigation, Trump turned on him, calling him “weak,” “disgraceful,” and an “idiot” before finally firing him.  He has characterized the FBI as “in tatters” and the Justice Department itself as “an embarrassment to our country.”  His personal assaults have even reached down into the middle levels of the Justice Department bureaucracy, as exemplified by his baseless demonization of career DOJ official Bruce Ohr. The unifying theme of Trump’s assaults on all the men and women doing their duty by investigating matters that might implicate or inconvenience him is that they are corrupt members of the “Criminal Deep State.”

Trump’s denigration of the integrity of anyone who stands in his way is not restricted to officials and employees of the executive branch he heads, but notoriously extends to the federal judiciary.  Trump routinely attacks any judge or judicial panel that rules against him or any administration initiative.  The examples are too numerous to mention them all, but include:

During his 2016 candidacy, Trump said of U.S. District Judge Gonzalo Curiel, then presiding over suits against Trump University, that he should be disqualified because, as a person of Mexican heritage, he would necessarily be biased against Trump.  When U.S. District James Robart enjoined Trump’s travel ban on persons from certain Muslim countries, Trump tweeted, “The opinion of this so-called judge, which essentially takes away law enforcement away from our country, is ridiculous and will be overturned.”  When U.S. District Judge William H. Orrick enjoined Trump’s executive order attempting to punish so-called “sanctuary cities,” Trump called the order “ridiculous,” and the White House put out a statement declaring, “The San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk. This case is yet one more example of egregious overreach by a single, unelected district judge.”  When U.S. District Judge Brian Morris of Montana enjoined implementation of President Trump’s order to proceed on the Keystone XL oil pipeline, Trump said, “It was a political decision made by a judge.  I think it’s a disgrace.” In response to a pointed rebuke of this kind of rhetoric from Chief Justice Roberts, Trump attacked the Ninth Circuit, asserted that “Obama judges” differ from persons “charged with the safety of our country,” and claimed that judicial restrictions on law enforcement will lead to “bedlam, chaos, injury, and death.”

Of course, throughout American history presidents have disagreed with particular decisions of federal courts and sometimes said so. Both Thomas Jefferson and Andrew Jackson disagreed heartily with important opinions of Chief Justice John Marshall, with Jefferson swallowing them graciously except in private correspondence and Jackson being more outspoken. At the outset of the Civil War, Abraham Lincoln simply ignored an opinion by Chief Justice Taney purporting to void Lincoln’s suspension of habeas corpus near vital rail lines Maryland. When the Supreme Court persistently voided New Deal legislation, Franklin D. Roosevelt fumed and mooted the possibility of inflating the number of justices — his famous “Court Packing Plan” — but never acted on the idea.

Trump’s defenders have attempted to analogize his routine denigration of the judicial branch to prior expressions of presidential unhappiness with legal outcomes. But the effort is strained and unconvincing. No president before Trump has ever made a staple of his ordinary public statements attacks on the integrity of individual judges or the legitimacy of the judiciary as a whole as arbiter of the meaning of the law.

This persistent pattern of questioning the integrity and legitimacy of the courts is not merely distasteful, or, as Trump’s defenders are apt to say, simply a matter of his personal “style.” It is instead overtly dangerous.  Court of Appeals judge Jay Bybee (a Republican appointee of impeccable conservative credentials) wrote in his dissent from the Ninth Circuit’s order upholding the injunction against Trump’s so-called “Muslim ban”:

Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
— Washington v. Trump, 858 F.3d 1168, 1185 (9th Cir. 2017) (en banc) (Bybee, J., dissenting).

Moreover, Mr. Trump’s abandonment of critical norms of presidential behavior in relation to the law have not been limited to questionable appointments decisions or ceaseless rhetorical denigration of legal officers, but has extended to placing pressure on the Justice Department and law enforcement agencies to open criminal investigations into his critics and opponents.  He has apparently been dissuaded from issuing direct orders for such investigations, but has made repeated calls for them in public declarations, most recently in response to the Roger Stone indictment.

Perhaps the most disturbing of Mr. Trump’s demands has been the endless harping that Hillary Clinton, his defeated 2016 rival, should be both investigated and jailed. The famous staple of his political rallies before and after the election — “Lock her up!” — can mean nothing else.

Even Republican stalwarts like former Attorney General Michael Mukasey have said that launching criminal investigations of defeated political candidates is un-American and akin to the practices of “banana republics.” He is right. The hallmark 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 electoral losers know that the sole consequence of the loss is return to private life. If a possible consequence of of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants will be tempted to ever-more-extreme measures to prevent it. This is the all-too-common precursor to the death of democracy in the developing world. But regression is perfectly possible among mature democracies like our own.

In short, systematic public assault on the executive and judicial branch employees of the justice system is bad enough because it risks creeping corrosion of the public trust essential to the rule of law.  Far more troubling is employing, or even threatening to employ, the vast powers of the federal criminal apparatus against opponents because it places this or any country on a straight road to autocratic rule. 

The facts that the Justice Department has, so far, ignored Trump’s efforts at jawboning and forged ahead with investigation of the president and his associates; that judges have, so far, continued to rule against the administration when moved to do so by their reading of the law; and that the federal law enforcement apparatus has, so far, largely resisted Trump’s calls for retaliatory investigations of his critics does not materially diminish the seriousness of Mr. Trump’s deviation from American constitutional norms. Nor does it materially alter the impeachment calculus.  Federal agencies for the most part resisted Richard Nixon’s efforts to enlist them in efforts to obstruct justice or punish his enemies, but the House Judiciary Committee included Nixon’s unsuccessful efforts along with his more successful ones as grounds for his impeachment.

The Framers inserted the impeachment remedy into the Constitution precisely in order to deal with an executive whose conduct, in George Mason’s words, “subvert[ed] the constitution.” By “constitution,” Mason and his colleagues meant not merely the document they were drafting. They understood that their brief composition could only be the skeleton to which later generations would add the flesh and sinew of statutes, judicial decisions, customs, and behavioral norms that make up the true constitution of any mature state. A president who would subvert that constitution may be impeached.

Trump’s persistent shamelessness has dulled all our senses to the point that he has normalized behavior that would only two years ago have seemed unthinkable. Unthinkable because it strikes so deeply at the unwritten norms — here the impartial, apolitical, administration of the law — that sustain American constitutionalism. It behooves us to shake ourselves free of his narcotic influence to at least consider whether he presents a danger great enough to merit his removal.

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Roger Stone Arrested and Indicted

25 Friday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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arrested, Collusion, Conspiracy, cooperation, DNC, donald trump, Emails, hillary clinton, indicted, investigation, president, Putin, Randy Credico, Robert Mueller, roger stone, russia, russian hackers, Special Counsel, wikileak

Roger Stone was arrested and received a seven count indictment this morning which included charges of misleading lawmakers about his communications with Wikileaks, the organization that released the emails which scandalized Hillary Clinton’s campaign, and intimidating fellow witness Randy Credico, who was also in contact with Wikileaks. Credico ultimately pleaded the 5th at Stone’s urging.

The emails released by Wikileaks were stolen by Russian hackers, and Stone is a long time friend and supporter of President Trump. If Stone chooses to cooperate with Special Counsel Mueller, he could provide the evidence need to finally establish collusion between Russia and the Trump Campaign. However, if Stone’s past comments are to be believed, he will not be cooperating. Much is yet to be seen.

stone.jpgAlex Wong/Getty Images

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A Mad Week: As Trump’s Unfitness Becomes Ever Plainer, Republicans Maneuver to Protect Him

06 Saturday Jan 2018

Posted by impeachableoffenses in Uncategorized

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Clinton Foundation, Fire & Fury, Graham, Grassley, hillary clinton, Jeff Sessions, Justice Department, Michael Wolff, Mueller, politics of impeachment, Steele

By Frank Bowman

During the past week, two discordant trends gathered strength in the parallel universes inhabited by the increasingly Trumpist Republican Party and pretty much everyone else.

One the one hand, evidence of Mr. Trump’s unfitness for office continued to mount.  Michael Wolff’s book about the Trump campaign and his early days in office, Fire & Fury, was breathlessly previewed, and then released early in the face of a threat by Trump to sue to stop it.  Whether or not all the details of the book are accurate, the thrust of its portrayal of Trump — an unprepared, barely literate, narcissist who ran for president as a brand-building stunt, never expected to win, and lacks the minimum levels of intelligence, rectitude, maturity, discipline, and psychological stability necessary for the job — is entirely consistent with the existing public record.

Mr. Trump is reportedly furious about the book, and his handlers have furiously disparaged both book and author.  But, typically, Trump’s own uncontrollable compulsion to return fire merely confirmed the truth of the book’s portrait of a man both pathologically insecure and cripplingly wanting in self-awareness.  This morning, in response to Wolff’s disparagement of his intelligence and stability, Mr. Trump tweeted that he is “a very stable genius.”

Meanwhile, at the other end of Pennsylvania Avenue, congressional Republicans seem to be unaffected by the ceaseless accretion of proof that Mr. Trump is dangerously unsuited to be president.  Indeed, as Trump’s troubles increase, an increasing number of Republican legislators evince a readiness to undermine long-standing governing norms to protect him.

Trump and his defenders obviously view the Mueller investigation as a major threat to the administration.  It is increasingly plain that an important faction of Republican legislators also see Mueller as a threat, although it is unclear whether they are most concerned about the danger Mueller poses to Mr. Trump, or the danger that adverse conclusions by Mueller would pose to Republican electoral prospects in coming down-ballot elections.  Regardless, a two-pronged Republican strategy seems to be emerging.

Prong one involves attacking Mueller directly, with insinuations that he and his team are servants of an anti-conservative “deep state” embedded in the Justice Department and FBI, and calls for the resignation of AG Jeff Sessions so that he can be replaced by someone who could control Mueller’s supposed “witch hunt.”

Prong two is a transparent, but deeply dangerous, effort to divert attention from Mueller’s work by pressing for federal criminal investigations of Hillary Clinton, the Clinton Foundation, former members of the Obama Administration, and others who are either already recognized boogiemen to consumers of far-right media or, like James Comey, are persons whose reputation for probity threatens Trump.

I have previously deplored the willingness of the Republican members of the House Judiciary Committee to call for legally baseless investigations of Hillary Clinton and her campaign.  Such requests are corrosive of the rule of law inasmuch as they seek to politicize the criminal investigative apparatus of the federal government.  Worse, they undermine democracy itself by transforming elections into struggles to the death in which all tactics, however reprehensible, are justified by the imperative to avoid losing in an arena where losing could mean prison, or at least the crippling cost of endless investigations.

The latter consequence has now materialized for Secretary Clinton, as it was this week reported that the Justice Department has opened, or re-opened, investigations into the Clinton Foundation and perhaps the e-mail matter. In short, Jeff Sessions’ Department of Justice has folded under political pressure and in the process severely damaged its own institutional credibility.

Until this week, I was somewhat comforted by the relative restraint of Republican senators, some of whom had signaled opposition to any effort to fire Mueller or distort the ordinary professional judgments of the Department of Justice.  However, my tentative confidence in the relative rectitude of Republican senators was shaken this week when Senators Charles Grassley (R-Iowa) and Lindsey Graham (R-S.C.) made a formal referral to the Justice Department suggesting that criminal charges be brought against Christopher Steele, the former British intelligence agent whose consulting company assembled the famous dossier about Trump’s connections with Russia.

It is, to be frank, doubtful that the Justice Department will take serious action on this request.  But the mere making of it is plainly part of a larger strategy to diffuse the impact of the Mueller investigation, and to discredit Trump critics and sources of information about his Russian contacts. In short, at least some Republican senators are now joining in the deeply dangerous, profoundly corrosive tactic of using the Department of Justice as a pawn in the game of protecting Donald Trump.

Again, the dissonance between the mounting evidence of Mr. Trump’s unsuitability for the presidency and the increasing willingness of elected and appointed Republicans to undermine governmental institutions and democratic norms to protect him, and by extension the Republican Party, is stark.

A collision is coming.  I am not confident that the result will be a happy one.

Frank Bowman

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The Subjectivity of Impeachment

21 Thursday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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email scandal, hillary clinton, political question, subjectivity

This comment was submitted to Impeachable Offenses by an author who wishes to remain unnamed. It examines this article.

Recently, Hillary Clinton did her first televised interview about her loss in the 2016 presidential election. During the campaign, many people (including Clinton) believed that Hillary would make history as the first female President of the United States. Although Hillary won the popular vote, Donald Trump won the electoral votes and the presidency. After Hillary’s devastating loss, she explains that she felt like she “let everybody down.” Clinton dedicated most of her life to politics, which made losing to a real estate billionaire much more shocking.

When asked about what she thought happened during the election, Hillary had a lot to say. She commented that Trump was very good at creating a sort of “nostalgia” for many Americans who were angry because of the financial crash. Trump’s appeals for nostalgia, especially towards the conservative community, seem to have carried over into his presidency. Many of Trump’s attempts to connect with the public include statements that are said to be less than truthful. Some people would even say they are outright lies. Many Americans argue that this is a basis for impeachment, but that raises the question: is lying a crime when not under oath? The laws of impeachment aren’t crystal clear.

Additionally, Hillary acknowledges that one of her “most important mistakes” was using her personal email. While taking responsibility for her actions, she also contends that the FBI’s decision to reopen the email investigation at the last minute destroyed her campaign and cost her the election. Clinton also does not understand why FBI Director James Comey commented publicly on her email investigation but chose to never mention the existence of an ongoing investigation into Trump’s ties with Russia.

President Trump’s opponents began speculating about the possibility of impeachment almost immediately after the election. Among the most prominently mentioned grounds for impeachment include Trump’s lies and the very Russian investigation the FBI kept quiet during the campaign. It is interesting to consider whether, had Hillary Clinton won the election, her opponents would now be arguing just as vocally that her email practices amounted to an impeachable offense. While both Trump and Clinton have faced controversy, the loose definition of an impeachable offense makes their transgressions somewhat subjective. What qualifies as an impeachable offense seems to depend somewhat on the political party of the offender as well as the majority party in the House and Senate. Because of a Republican president and Republican dominated Congress, articles of impeachment against our current president will likely face difficulty.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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