Category Archives: Trump

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.

 

#########

 

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.

Read more

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.

Read more

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. 

Read more

Muller to Barr RE: “Public Confusion”

I didn’t. I really did not want to write about this again. I’ve got several much more interesting things half written that I’d like to finish. But I keep coming back to what is alleged by many to be the most popular quotation in the English language, “The only thing necessary for the triumph of evil is that good men do nothing.” Edmund Burke, John Stuart Mill? For a discussion on the source see quoteinvestigator.

The night before Attorney General William Barr was to testify before the Senate Judiciary Committee, the Washington Post first reported that Special Counsel Robert Mueller had, on March 27th, 2019, sent a letter to Barr characterizing Barr’s four page memo to Congress, dated March 24,

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations

Read more

Bill Barr’s Balderdash

I know. In my last post I wrote that Attorney General William Barr is a political hack. But I hoped I was wrong. I really did hope the Mueller Report would reveal that Barr’s four page letter to Congress had been a fair representation, that the Mueller Report would put to rest accusations against Donald Trump and that the nation would get on with its business.

But those hopes were dashed even before Barr released a redacted version of the 448-page report on the Department of Justice web site.  A few hours ahead of the release Barr called a “news conference” to put his own spin, for the third time, on what reporters, members of the public and the Congress had yet to read. Barr’s repetition of the “no collusion,” “no obstruction” company line must have been music to Trump’s ears.

Read more

RE: Barr Memo RE: Meuller Report

I thought we should wait to write about the Mueller Report until we had actually read it. Silly me.

We have now seen an incalculable amount of ink and airtime expended reporting on and analyzing the report by special counsel Robert Mueller into “any links and/or consultation between the Russian government and individuals associated with the campaign of President Donald Trump, and any matters that arose or may arise directly from the investigation.”

Read more

« Older Entries