Tag Archives: Donald Trump

Trump defensive strategy: delay, delay, delay

John R. Bolton

John Bolton, Trump’s former national security adviser, has indicated that he would testify in the impeachment hearing — BUT — he wants a judge to decide if he can continue to ignore the Judiciary Committee’s invitation to testify, as the president has ordered, or whether, as a former employee of the White House, he is not subject to the executive order.

Initially, I thought Bolton’s request for a judicial determination was a strictly CYA maneuver. But now his lawyer’s hint on Friday that Bolton knows about “many relevant meetings and conversations” that the House committee doesn’t suggests something more. The intimation that Bolton could supply new evidence is meant to be tantalizing. If the Democrats bite the bait by acceding to his request and taking him to court to force him to testify before the committee, the momentum of the hearings will be lost.

Delay only helps Trump.  The longer the impeachment inquiry drags on, the greater the chance that public interest in the eventual impeachment will subside. No one wants the impeachment to drag into a presidential year, and the first primary is only two and a half months away. The candidates for the nomination need to direct their attention to their campaigns. They can’t afford to be distracted by the impeachment.

Democrats already have all the evidence they need to impeach Trump, But Bolton’s position in the White House places him closer to the president than any of the other witnesses so far. His testimony would certainly be valuable to the Democrats and difficult for the Republicans to impugn.

Democrats must resist Republican attempts to bog down and obstruct the hearings by assailing the process, smearing the witnesses, and using the courts to delay unimpeachable testimony that will likely damn the president.

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Eyes on the Chief Justice

Will John Roberts defend the scofflaw Donald Trump, who boasts of being able to shoot someone in the middle of Fifth Avenue with impunity? We shall soon find out. 

Dahlia Lithwick, who writes about courts and the law for Slate Magazine, discusses the multiple lawsuits headed for the Supreme Court that will directly impact Trump’s fate, if not determine it. Federal and district courts have stymied Trump’s attempts to shield his tax returns from public scrutiny, to direct his cronies and White House staff (past and present) from testifying in the current impeachment inquiry, and to keep evidence presented to the Mueller grand jury inaccessible to the committees conducting the impeachment inquiry. Trump has appealed all these cases, and now the only place left for them to go is the Supreme Court.

Lithwick explains how the actions of the Chief Justice will affect the course and outcome of the impeachment inquiry. Roberts may agree to put the cases affecting the president on the docket this term, but the decisions would likely not come down until late spring, too late for an impeachment proceeding to use the testimony of key witnesses and critical evidence gathered by Special Counsel Robert Mueller. A delay will be of great advantage to Trump. But if Roberts decides to let the rulings of the lower courts stand, he would in effect be ruling against Trump. If the Supreme Court takes up the cases, the delay will slow down the Democrats’ momentum, adversely affecting their ability to influence public opinion, a critical factor in impeachment.

Will Roberts, now the swing vote on the Court, support Trump’s defiance of court orders and subpoenas? Will he support Trump’s assertion assertion of complete presidential immunity, not only from being indicted, but even from being investigated? With unlimited executive power, the president is personally above the law and free to countermand or defy established federal law and historical custom. The judiciary and the legislature are subservient to the imperial presidency, not co-equal as defined by the Constitution. Trump’s impeachment is about much more than the fate of his presidency. It is about the authority of the Constitution and the survival of American democracy.

At least once the Chief Justice ruled against the Republicans, when he found a way to keep Obamacare from foundering. He apparently understood that the Affordable Healthcare Act  was benefitting millions, and that they would not look kindly on Republicans who would take it away just as they had begun to have the ability to obtain medical care previously denied them.

I believe John Roberts cares about his legacy and the integrity of the Court. We’ll soon know if I am right.

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The unbearable mystery of Mueller

Special Counsel Robert S. Mueller
Photo credit: USAToday

For almost two years Democrats waited with apprehension and Republicans with dread for Special Counsel Robert Mueller to conclude his investigation into Russian interference in the 2016 election. When the day finally came, Attorney General William Barr received the report. Two days later, he summarized the conclusions in a four-page letter. Republicans were elated, Democrats were stunned, and the president was jubilant.

Barr wrote that Mueller found neither Trump nor members of his campaign had conspired with the Russians. 

But the other charge, obstruction of justice, remained unresolved. Mueller wrote

while this report does not conclude that the President committed a crime, it also does not exonerate him [emphasis mine]. 

Whereupon Barr took it upon himself, in consultation with Deputy Attorney General Rod Rosenstein, to go where the Mueller Report had not. He concluded that President Trump had not obstructed justice, despite Mueller’s refusal to exonerate him. 

Why did Special Counsel Mueller decide not to decide? Prosecutors normally prosecute.

A Special Prosecutor is appointed when an important investigation demands that it be led by someone deemed to be completely independent and resistant to countervailing political winds. By not resolving the question of Trump’s obstruction of justice, Mueller obviated the purpose of having an apolitical Special Counsel. The final decision now falls to a Trump appointee, the Attorney General, or Congress, which is nothing if not political. 

Barr is hardly unbiased. Before his nomination, he wrote an unsolicited memo that called Mueller’s obstruction of justice investigation “fatally misconceived.” Barr wrote that, given the executive power inherent in the office, it is impossible for the president to obstruct justice. It was completely within Trump’s powers as head of the executive branch, Barr wrote, to ask FBI Director James Comey to go easy on then-National Security Advisor Michael Flynn and fire Comey for his suggestion that the President had acted inappropriately.  

Barr believes that there cannot be obstruction without an underlying crime. Once Mueller cleared Trump of collusion, the underlying crime was gone, so ipso facto  Trump could not be obstructing justice.

It was clear early on that members of the Trump campaign had meetings with Russian nationals and tried to hide and then deny those actions. The infamous June 9, 2016, meeting in Trump Tower was one of these. It was attended by three senior members of the Trump campaign (Donald Trump Jr, son-in-law Jared Kushner and then-campaign manager Paul Manafort) and a Russian government lawyer. Trump Jr had written that he would love to receive opposition research on Hilary Clinton from the Russians. Trump and his aides concocted several stories to explain the meeting, but none of the lies was able to withstand the truth eventually uncovered by tireless journalists.

We also know that during the campaign the president was working on a lucrative business deal, the erection of a Trump Tower in Moscow. Was he compromised by his eagerness to do business with Putin? Was making lots of money the only motive for Trump’s deference to the Russians?

Did Mueller fail to draw a conclusion because it might have prejudiced ongoing investigations he had referred to other jurisdictions? Would a conclusion have contaminated the jury pool for a future grand jury?

The Democrats will have to choke on these questions and more until, if ever, the full report is released. House committees may carry on the multiple investigations they have begun. They may call Mueller to testify, despite Barr’s opposition.

But if the Dems are wise, they will concentrate on giving the voters what they want. Healthcare leads the list. Trump may have given Democrats a gift by proposing to completely repeal the ACA / Obamacare. Voters are much more interested in the bread-and-butter issues that affect them directly every day than they are in the political bickering in Washington. 

If American democracy can withstand the Trumpian onslaughts, an accurate history of the Trump era will one day be written.

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Trump’s elusive wall


Trump promoting his wall -USA Today

Donald Trump needs The Wall that he’s been hawking since he entered the presidential race, but the Democrats, led by Speaker Nancy Pelosi, won’t let him have it. Like a spoiled brat who can’t get his way, the President had a tantrum. He retaliated by shutting down the government.

Donald Trump hates to admit he made a mistake. He rarely apologizes. Now he’s boxed himself in by saying he won’t reopen the government that he himself shut down unless he gets his Wall, but the Democrats are standing firmly against a wall they say would be ineffective. Negotiations are at an impasse. Trump is holding 800,000 federal workers hostage to something that began as a mnemonic device, a way to remember what he was supposed to say.

Why is Trump so enthralled by his Wall?

Before he officially became a candidate, Trump’s political advisers realized that immigration would resonate with conservatives and unemployed workers left behind in a growing economy that did not need their skills. In order to keep the easily distracted candidate on message, his handlers hit upon The Wall — a simple concept, an easy-to-remember four-letter word. It appealed to Trump the Builder — Build the Wall! — and the crowd’s enthusiastic response to the slogan converted it to a meme that has practically become a symbol for Trump himself.

The Trump Tower escalator descended with the aspiring candidate to a waiting crowd so that a beaming Trump could announce his candidacy. He described the evils he said were afflicting the country and attributed them mostly to immigrants who he said were invaders that arrived in hordes at the southern border. To stymie them Trump envisioned a “beautiful” Wall he would erect to “Make America Great Again” by walling out undesirables. America for Americans! (Never mind that America was built by immigrants and most Americans are descended from them.)

The Wall has become a convenient way for Trump to distract the country when new revelations from the Mueller investigation grab the headlines or challenge his version of events.

Now Trump has seized on the expedient of declaring a national emergency so that he will be able to use expanded executive power. The White House is looking for options like using military manpower and funds designated for other projects. The Pentagon may not look favorably on losing funds needed perhaps to build new barracks.

Democrats will lose no time before they challenge Trump in court. The president cannot overrule Congress by appropriating funds for a project it has not approved without precipitating a constitutional crisis. We are again in uncharted waters.


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Can Trump declare a state of emergency?

photo by Jonathan Ernst/Reuters

Upon reading Elizabeth Goitein’s “What the President Could Do If He Declares a State of Emergency” in The Atlantic, my dismay spurred me to write the previous post. In “Our democracy may not be as robust as we think,” I considered a few of the disasters Trump would be empowered to inflict on the American public by declaring a state of emergency.

After publishing the post, I began to read The New York Times, and almost immediately came upon Bruce Ackerman’s “No, Trump Cannot Declare an ‘Emergency’ to Build His Wall,” The title promised to contradict all I had written based on Goitein’s article.

But Ackerman’s article was nuanced.

He refers to laws that would seem to prevent the president from suspending civil liberties and imposing martial law or build his wall. The first is a provision in a statute of 1878 that expressly forbids the willful use of “any part of the Army or the Air Force to execute a law domestically” unless “authorized by the Constitution or an act of Congress.” Then he refers to another statute from 1807 that directs the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” will “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity … unless authorized by law.”

Would Trump respect these statutes? For that matter, is he even aware of them? Is anyone in his cabinet or on his staff sufficiently conversant with the law to attempt to curb his illegal impulses? We have seen Trump compose executive orders and issue commands without seeking legal advice, unaware that he may be violating the Constitution or the laws of the land. His M.O. is “Act first, think later (if ever).” Knowing the presidency confers great power, Trump seems to think there are no restraints. If he were to declare an emergency, there would be a delay before the courts or Congress could thwart him. 

Ackerman admits that the laws he refers to “do contain a series of carefully crafted exceptions to the general rule.” He concedes that Trump might take advantage of the exception which authorizes the military to detain suspected terrorists. That’s not a stretch, since the President has repeatedly characterized migrants who cross the border illegally as terrorists.

But Ackerman believes that “it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.” It is “unconscionable” for a moral and compassionate person, but Trump has repeatedly demonstrated that he is neither. He has already gassed them.

The National Emergencies Act “formalize[s] the power of Congress to provide certain checks and balances on the emergency powers of the President,” writes Ackerman. It gives the House the right to rescind a state of emergency declared by the president and requires the Senate to ratify within 15 days. It seems foolishly optimistic to trust that the the legislators in the current divided Congress could come together in both houses long enough to pass a resolution.

Yet, in a neat twist of logic, Ackerman argues that Congress would intervene:

Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.

Hmm. That remains to be seen.

Finally, Ackerman concedes that, despite the legal obstacles that confront him, Trump could well declare a state of emergency. “He will likely take the most irresponsible path possible, issuing his ‘national emergency’ through a tweet or a question-begging written pronunciamento.”

We have reason to be very concerned.

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Our democracy may not be as robust as we think

Imagine an internet that restricts access to certain websites, including social media platforms; search engines programmed to return only positive results to queries for “Trump”; email that is monitored, censored, even blocked. Does that sound fanciful, an impossibility in our American democracy? Perhaps. Yet the threat is real. 

Republican presidential candidate Donald Trump speaks during a campaign stop in Council Bluffs, Iowa, Tuesday, Dec. 29, 2015. (AP Photo/Nati Harnik)

The current issue of The Atlantic has an alarming report written by Elizabeth Goitein, the Co-director of the Liberty and National Security program at The Brennan Center for Justice. Goitein delineates the formidable emergency powers that are available to the president during a national emergency. The article, “What the President Could Do If He Declares a State of Emergency,” is an eye-opener. Everyone should read it.

By announcing the mere threat of war, for example, the president could assume control of all communications, most likely including the internet. He could do so by invoking a law that has been on the books since 1942, when fears of invasion during World War II justified extraordinary executive power. Though it didn’t exist when the law was written, the internet today is a vital component of communications.

The Brennan Center for Justice at the NYU School of Law has tallied 123 statutory provisions that grant the president broad emergency powers the moment he declares an emergency. Moreover, the president himself may determine what constitutes an emergency, because the statutes do not define it. In addition, there is no judicial review, nor a requirement that Congress ratify the president’s appropriation of exceptional power. Though Congress could vote to end the state of emergency with a two-thirds, veto-proof majority in both houses, what are the chances of that happening today?

The Insurrection Act of 1807, modified over the years, allows the president to employ military troops to enforce the authority of the federal government in cases of lawlessness, insurrection and rebellion. Trump could deploy armed forces domestically wherever he saw fit, because the statute does not define the specific conditions that constitute an emergency. The law is vague enough that Trump could, for example, authorize tanks to patrol the streets, rounding up political protesters and undocumented migrants. President Eisenhower invoked this law in 1957 to enforce desegregation of the schools in Arkansas with federal troops.

Authoritarians routinely declare states of emergency to impose their will forcefully on their people. Trump admires tyrants like Turkey’s Erdoğan and Duterte of the Philippines — why wouldn’t he follow their examples? After all, Trump is not inhibited by respect for or even knowledge of the law or of the rights and freedoms guaranteed by the Constitution.

Trump continues to attack the free press because it persists in calling him to account. The President riles up his followers and advocates the imprisonment of a political rival. He denies Muslims entry to the U.S. Clearly, Trump has no reverence for the basic freedoms of the press, speech and religion. Gotein cites Geoffrey R. Stone, a constitutional-law scholar at the University of Chicago, who observed that “It would not take much to upset the [Supreme Court’s] current understanding of the First Amendment.” 

“Indeed,” Goitein remarks wryly, “all it would take is five Supreme Court justices whose commitment to presidential power exceeds their commitment to individual liberties.”

Presidents in living memory have exercised emergency powers. Citing imminent threat to America, President Franklin Roosevelt defied the Constitution by interning U.S. citizens of Japanese descent. More recently, President George W. Bush authorized warrantless wiretapping and torture after 9/11.

In view of the latent perils to democracy that are now immediately available to President Trump, Gotein urges the American public to inform itself. We must insist that Congress repeal obsolete laws and limit the ones that contain the potential for abuse. The newly Democratic House must begin the review process in committees so that a future Democratic Senate can ratify the changes.

The time to act is now, before Trump or another president declares an emergency that gives him limitless power.

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Pipe bombs and the crackup of the Union

Americans awoke this morning to the news that pipe bombs had been mailed to prominent political people. Not just any politicians— no Republicans, only Democrats and Trump’s favorite targets.

In his tweets and at his rallies, Trump has threatened and vilified Hillary Clinton, leading chants to “Lock her up!” He denied Barack Obama’s legitimacy, for years insisting that he was not born in the U.S., and has been dismantling every achievement of his predecessor since his first day in office. George Soros, the billionaire philanthropist and major Democratic donor, has been accused by Trump and the Right-Wing extremists of master-minding conspiracies against the U.S. and the world order. Trump has consistently disparaged the media, in particular, the publications that have criticized him, news organs like CNN and the New York Times. George Brennan, former Director of the C.I.A., has been outspokenly critical of Trump, and the President retaliated by stripping him of his security clearance.

Except for the NY Times, all of the above were recipients of bombs sent to their homes. Brennan’s was sent to CNN offices in New York.

We have a head of state who not only condones violence, but incites it. Since the days of his campaign, when he defended and encouraged his supporters that punched protesters, promising to pay their legal bills, the rabble-rouser-in-chief continues to stoke the fury of his followers, encouraging them to ravage the foundational principles of American democracy.

The country that prided itself on being a nation of laws is devolving into the misrule of chaos and hate. Trump campaigned on a pledge to destroy the existing order, and for perhaps for the only time, he is keeping his word. Rather than Making America Great Again, Trump is presiding over the disintegration of lawful society.

The political parties no longer work to reach compromises that further the greater good. Rather, they reflect the stark division of Trumpists determined to rend the fragile fabric of democracy and their opponents who want to conserve and build on the achievements of the bold experiment started over 200 years ago.

Update: Later in the day, more bombs were discovered. They were sent to Eric Holder, Obama’s attorney general and Rep. Maxine Waters (D-CA).

 

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