Author Archives: Scott Gurvey

L’état n’est pas Donald Trump

L’affaire Trump has entered a new stage. In a scathing eight page letter to Democratic leaders in the House of Representatives, White House counsel Pat Cipollone declared that Donald Trump “cannot participate” in the House’s impeachment inquiry, complaining the “inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.”

The Trumpies of course love the letter even though it reads like Trump himself sketched it out, filling it with his long list of lies and manufactured grievances, and then handed it to Cipollone. I can imagine Cipollone struggling to take out Trump’s usual adjectives like, “lil’ Adam Schiff,” and adding some legalese. The resulting argument would get a failing grade in anyone’s first year Constitutional Law course.

Where to begin? The Constitution gives the House of Representatives the “sole Power of Impeachment” (Article I, Section 2). It does not specify how the House shall operate, other than to say “The President, Vice President and all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4)House practice dictates the procedure for the impeachment process, requiring that it pass, by simple majority, articles of impeachment.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. (Article I, Section 3).

There are many great commentaries on impeachment, and books as well, for readers interested in Googling for more detail. See Bob Bauer at Lawfare and Nate Robson and Mike Scarcella at Law.com.

But the bottom line is what it has always been. This is a political process, not a legal one. The outcome will be determined by the votes of elected representatives in both houses of Congress. The bar for removal from office is high and has never been met in the case of a president.

I personally would rather the House took a formal vote to “begin” an impeachment inquiry. I think that would strengthen its hand as it seeks court assistance to enforce its subpoenas. I assume Speaker Nancy Pelosi wants to delay putting members on record. But eventually articles of impeachment will have to be voted on and the record will be available for the voters to review come November of next year. A Senate vote is also likely and will create another record.

But if you insist on looking at this as a legal issue, it is clear from the language of the Framers that the House is serving the role of a grand jury in our criminal justice system. In that light the Cipollone argument fails miserably. No subject of an investigation gets due process rights at the grand jury level, except the right to invoke the Fifth Amendment protection against self-incrimination.

The Senate then is acting as the trial court. There the president will presumably have the right, subject to Senate rules, to confront his accusers, cross examine the witnesses against him and challenge their evidence. He will also have the right to present his own testimony and evidence. Then he will face the vote of the Senators, acting as jury. The Constitution requires a super-majority vote to convict and remove from office. That verdict will be final, see United States v. Nixon, 418 U.S. 683 (1974).

Trump asserts that he is not subject to the House proceeding because it is unconstitutional. He also claims that the House cannot proceed unless he consents. Clearly, this position would render the impeachment process untenable.

But beyond that argument, Trump asserts not only his right to refuse to cooperate, but also his right to prevent any employee, past or present, of the federal government, from cooperating. Here he invokes the right of an absolute monarch. This is not exactly a surprise. Trump has already proclaimed that “Article II” gives him the “right as President to do whatever I want to.”

In Nixon, the Supreme Court rejected President Richard Nixon’s claim to an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Before the Supreme Court had its say, James D. St. Clair, Nixon’s attorney, told Judge John Sirica of the U.S. District Court for the District of Columbia:

The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.

Many historians now doubt that the infamous French monarch ever said, “létatc’est moi,” literally, “The state, it is I” as a statement of his absolute power. But one thing is certain, the Framers of the Constitution had two principal fears, foreign influence on the American government, and unfettered executive power. Trump seems to condone and encourage the first fear and advocate the second.

It was because of these fears that the Framers enacted the intricate set of checks and balances which, imperfect though they so obviously are, still act to protect us from tyranny today. This tyranny is exactly what Cipollone advances as the proper interpretation of the Constitution in Trump’s world. It is exactly what a unanimous Supreme Court held was not constitutional in United States v. Nixon. Cipollone admits his argument is contrary to the Nixon case. He says the Supreme Court got it wrong in 1974 and should reverse that decision.

I dissent. L’état n’est pas Donald Trump.

 

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The Whistle Blows for Trump

I won’t even try to fight it, as I did in my last blog. Now the whistleblower’s complaint has been released and so was a summary memo describing the telephone conversation Donald Trump had with the President of Ukraine.

Please, I beg you. READ the complaint and the telephone call memo. Make up your own mind. Beware the pundits and the spinners. Even me. It remains both inexplicable and frustrating to me that two people can look at the same material and come to different conclusions. But that’s life. What I can’t abide is people voicing an opinion without having read the material. Each document is only a handful of pages long. Make the effort.

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Why is it so hard?

I think I’ve figured out why it is so hard to get these blogs written. I have a routine. I’ll have an idea, spend half a day thinking about it and doing any necessary research. Then I’ll spend the afternoon writing. Then I sleep on it and the next morning, edit it with fresh eyes and look for a visual or two to insert. Easy, right?

The problem is I keep writing about Donald Trump. He dominates the news and my thoughts. I simply can’t believe what he says. I can’t believe what he does or tries to do. I can’t believe how many people passively remain quiet or openly support his actions. So I write. But overnight, he does something worse. Day in and day out. Now, come the morning, I’m faced with the dilemma, finish the piece from the day before, or drop everything to tackle the latest horror? I’m frozen in the headlights of Trump.

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Parliament: At Least Debate

One of the more esoteric debates in academia for those studying politics is the contrast between the American form of government, with a strong executive and an elected legislature wielding equal power, with the democratic parliamentary system in which the elected legislature is the ultimate power, the head of state subservient to it and the executive chosen by it. In other words, America v. England.

I frequently got into this debate with my father, a true Anglophile, and we never resolved the issue. The compare and contrast form of discussion was, in many way, ironic because of the historical circumstances. England had a strong executive at the time of the American revolution. King George III reigned at that time, had considerable real power compared with today’s Queen Elizabeth II, and was for Americans the perfect example of a leader to be avoided.

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Again With the Guns

I have now learned that a great way to increase the amount of public participation on your blog is to talk about guns. The feedback on my last post set a record.

I have also learned that having a reasonable debate on this subject is pretty much impossible. There is so much disinformation out there that people involved in the discussion seem to be speaking different languages.

Part of the problem is that there really is, as I noted in the last post, not a lot of good data on the effects of gun ownership and gun regulation. I know that sounds crazy and I have to tell you, as one who believes in making informed data driven judgments it is very frustrating. But it is true mostly because the government, which funds much of the academic research in the United States, has for years forbidden the organizations responsible for public health and safety to fund studies into the causes of death by gunfire. That leaves us arguing, for example, on the effectiveness of the assault weapons ban which expired in 2004. 

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Guns

On September 13, 1994, a ten-year ban on assault weapons was signed into law by President Bill Clinton. It had been supported by three former presidents, Gerald Ford, Jimmy Carter and Ronald Reason. The law had a built-in “sunset” provision and was allowed to expire on September 13, 2004, when President George W. Bush was in office.

The so-called Federal Assault Weapons Ban, part of the Violent Crime Control and Law Enforcement Act of 1994, was limited. It included a prohibition on the manufacture for civilian use of certain semi-automatic firearms that were defined as assault weapons as well as certain ammunition magazines that were defined as “large capacity”.

Limited or not, it was too much for the Republicans and the National Rifle Association. Democratic attempts to renew it have failed repeatedly over the years. California Senator Diane Feinstein has led the effort in the Senate. Her bill is pending before the Judiciary Committees in both houses. There have been no hearings.

To be fair, yes, some opinion writers try to be, questions have been raised about the effectiveness of the law, at least during the first few years after it was enacted. And the legal environment for gun control legislation has become more complicated in recent years, in great part due to the Supreme Court’s decision in District of Columbia v. Heller.

This 2008 opinion, decided 5-4 with  Scalia, Roberts, Kennedy, Thomas, and Alito in the majority, held for the first time that the Second Amendment gives private citizens the right to possess an ordinary type of weapon and use it for lawful, historically established purposes such as self-defense even when there is no relationship to a local militia.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Second Amendment, U.S. Constitution

I can go on for hours, and have bored many a person doing so, about how ridiculous and hypocritical the Heller opinion, written by Justice Scalia, is. But I’ll spare you. For now. Suffice it to note the opinion, dangerous though it is, still allows for the possibility that some type of weapons could be banned. One hopes, for example, the Court would allow the prohibition of nuclear bombs in a home arsenal. Still untested however, is a new ban on assault weapons.

But before a new ban can be tested, Congress has to act.

Congress is taking August off.

The Shooters Don’t Wait

On Saturday it appears a single shooter killed 20 people and wounded 26 others at a Walmart in El Paso, Texas. Police say he carried an assault rifle of the type banned by the expired law. He was captured alive by police within minutes.

Dayton Shooting MagazineThirteen hours later another apparently lone gunman opened fire on people in downtown Dayton, Ohio. The gunman wore body armor and also used an “AK” type assault rifle. Police say he carried the “high capacity magazine” pictured on the left. It holds 100 rounds, is designed for rapid fire and would have been banned under the expired law. The gunman was killed by police in less than a minute after he started shooting. In that minute he killed 9 people and wounded at least 27 others.

If only Scalia, who frequently argued that the Constitution has to be understood in terms of what its actual words meant at the time they were written, had limited his individual right to bear arms to those highly inaccurate and slow firing weapons in use at that time. You can’t do much damage with a musket or flintlock.

Even Background Checks Can’t Be Enacted

The House of Representatives passed H.R.8, the Bipartisan Background Checks Act of 2019 on February 27, 2019. The vote was 240 – 190. It is far from perfect. But it does establish new background check requirements for firearm transfers between private parties (i.e., unlicensed individuals). Specifically, it prohibits a firearm transfer between private parties unless a licensed gun dealer, manufacturer, or importer first takes possession of the firearm to conduct a background check.

On March 4, it was “Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 29.” Its fate now rests solely in the hands of Senate Republican Leader Mitch McConnell. It hasn’t been heard from since.

Congress is taking August off.

Most polls show a significant majority of Americans favor limits on high capacity, high speed weapons designed for military use. Most polls show a significant majority of Americans favor background checks.

Congress is taking August off.

Perhaps the solution is for voters to give members of Congress who block these measures a permanent vacation.

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Apollo 11 – Those Were the Days

Of all the thoughts that came to mind as we marked the 50th anniversary of the landing of Apollo 11 on the moon, the one that struck me most was the realization that more than half the people alive on the planet today hadn’t been born yet when Neil Armstrong took that “giant leap.”

That’s Armstrong’s footprint above on the left. And that’s Edwin “Buzz” Aldrin in the middle saluting the American flag. Here’s a bit of trivia for you. Almost all the pictures on the first men on the moon feature Aldrin. That’s because only Armstrong had a camera and infrequently handed it off to Aldrin. On future flights both crewmen were given a camera.

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