“When people show you who they are, believe them the first time.”
— Maya Angelou
Following Tuesday’s national embarrassment, a disgusting display of attempted bullying, there is a lot to think about. Probably, Donald J. Trump acted the role of the out of control drunk at the end of the bar because he knew he could not win a debate. He does not have control of the facts, has barely put together a complete sentence in his entire term, and knows that former Vice President Joe Biden has plenty of experience in such a format. Mr. Trump was probably not concerned about criticism for telling more lies — he has already accumulated over 20,000 documented lies since his inauguration — but he was concerned about losing. The answer was to blow it all up, burn the place down, and attempt to look “strong” in an attempt to make Mr. Biden look weak. He failed in every respect and in the process broke the rules of democracy and decorum and deprived the American public of the chance to assess both candidates, their policies, and their fitness for the job.
With all of the outrageous statements and shenanigans, two stand out above all and should alert every one of us to the clear and present danger to our country that exists in the persona of Mr. Trump. We need to look no further than his two statements near the end of the debate. When given the opportunity to clearly and forcefully condemn the antics, tactics and goals of white supremacists, he demurred. (“The Proud Boys: stand back and stand by.”) Indeed by all accounts by those that follow such things, the white supremacist groups took his answer as a call to arms. (Several incorporated the words into their new logos and one leader tweeted out “Standing by sir!”) Even on Wednesday as Mr. Trump claimed he did not know, then or now (really? c’mon man!), who the Proud Boys were, he still passed up the opportunity to publicly condemn white supremacists.
The second issue was his continued declarations that if he lost the election it was only because it was rigged against him. In other words, he will accept no other result than his own victory and explicitly said that he didn’t know if he would allow for a peaceful transition of power should he lose. Tuesday night he said that he is “urging his supporters to go into the polls and watch very carefully.” If Mr. Trump sees “thousands of ballots being manipulated, I can’t go along with that.” When asked about what he meant by that he said “it means you have a fraudulent election.” When asked specifically if he would warn his supporters against “civil unrest” and tell them to keep calm if the vote counting goes on longer than Election Day, he refused.
So let’s put this all together and then see what he, and unfortunately Attorney General William Barr have been saying over the last few weeks.
First, on Tuesday night Mr. Trump gave a green light to white supremacists and other supporters to use violence if the election goes for Mr. Biden. Additionally, he told his supporters to engage in voter intimidation by going to polling places to keep people from voting or to claim voter fraud if they are not allowed into the polls (in most states poll watchers have to be certified and there are rules about their behavior).
Please do not say that Mr. Trump did not really mean what he said or that his words are being overly exaggerated. He knew exactly what he was doing. More importantly, the folks on the receiving end of his message know what he meant and will act on it, regardless of what “he meant to say.” He encourages vigilantes and is a major league fearmonger. There are people that believe him. So get real. The threat to a fair and open election is staring us in the face.
As I have written in this space before, autocrats tell you exactly what they are going to try and do before they do it. Mr. Trump is no exception.
Here is the playbook as I see it.
Mr. Trump’s goal is to make things look so bad that he can claim, as he already has, that he alone can fix it. As the pandemic continues to spread, the economy is ready to take another hit (today alone 35,000 airline employees are set to be laid off), schools are mostly still remote, demonstrations continue across the land, and golly, no one can even rely on the Postal Service anymore. All of this and more creates a sense of crisis.
In a crisis, people want action. By demonstrating that he is not afraid to break the rules — be it holding a political convention on the White House lawn or not abiding by debate rules — he is attempting to demonstrate that he is willing to do anything. Anything. Rules, norms, laws do not apply in a crisis and he is not afraid to throw all of them out the window to achieve “results.” Without a bit of shame as to the illogical nature of his argument, he now tends to claim that things are so bad now (remember, he has been the president for the last four years and precipitated many of these crises himself), he needs a second term to restore order. He argues that Democrats are the real problem and that they want anarchy. “Law and Order” is required to bring back the America you love (read: white male Christian dominated society). Contempt for the law is part of the message. It is necessary to get things done. Straight textbook Autocracy 101.
He knows he is losing, so now he needs to bring it all home by suppressing the vote for Mr. Biden, and claiming that the election was a fraud.
In recent weeks he has railed against any and all mail-in ballots as being rigged. He continually claims that all vote counting must stop on Election Night. The Attorney General went on CNN and claimed that foreign entities were going to counterfeit absentee ballots and other cheaters were going to pay people for their votes, buy up blocks of blank ballots and fill in Mr. Biden’s name. Indeed he even implied that postal workers might do that.
And on and on. The point? They are trying to lay the ground work for a legal challenge to the election results when Mr. Trump loses. I suspect that they will have people try to forge ballots and pay for ballots and send in lots of crudely duplicated ballots in order to prove their point. They are telling us what they are going to do. Add to that some nut cases or groups of nut cases (I’m looking at you white supremacists) that hear that a county election office threw out some ballots (does not have to actually happen, just put it out over social media and they will come) and they storm the building to confiscate the “illegal” ballots.
The number of scenarios are vast. We already know that Mr. Trump and Mr. Barr have no bottom for shameful and immoral behavior. The only goal is to retain power. Mr. Trump cannot stand the thought of losing — especially since he may end up going to jail in the not too distant future. Mr. Barr is on some bizarre crusade to shape American society in the way that he thinks it should function and Mr. Trump is his blunt instrument to achieve his ends.
All of it sets up the conditions for a legal (yes legal) attempt to steal the election. I am not a Constitutional law expert and I am not an attorney. My understanding is it can work as follows:
- Claim that the results in certain swing states (enough to give Mr. Trump a win) are suspect because of all the “illegal” ballots that were submitted by mail and because of improprieties at voting places. Remember that Mr. Trump and Mr. Barr have already encouraged voters in North Carolina and Pennsylvania to vote twice. Those two men know that is illegal, but if enough people try it, it really gums up the works and they can also claim that legitimate voters were turned away at the polls.
- Go to the courts to invalidate the election results in enough precincts to change the state’s electoral outcome. If that doesn’t work, go to state legislatures and claim that the Electors voted into the Electoral College from that state were illegitimately determined. Under the law, state legislatures determine the Electors and certify their validity to the Congress. Many states have laws that the legislature must certify Electors as voted on by the people, but not all. Additionally, the laws are often vague and some experts believe that the courts could decide in favor of legislatures over those voted on by the people. Reports from Pennsylvania already reveal that members of the Trump Campaign have talked to the leaders of the the Republican controlled legislature to do just that.
- If the courts do not rule as to which slates of Electors are the legitimate ones, or the states decide to send the competing slates to the Congress, the Electors seated in the College are determined by a vote in the Congress. The House and the Senate both vote. Although new Representatives and Senators will be seated by then, Vice President Pence will still be the tie breaker in the Senate.
- Should the House and the Senate vote to seat different slates of Electors, then the vote goes back to the House, but with different rules. In this vote, each state votes as a block. One state, one vote. Thus South Dakota has as much power to decide the president as does New York. Even though the Democrats have a large majority in the House, when decided on a state by state basis, currently 26 have Republican majorities (or only one Representative from that state) and 22 have Democrats. The other two are split.
- Meanwhile a parallel effort will go in in the courts. If it makes it to the Supreme Court the result could go either way. However, Mr. Trump specifically mentions Supreme Court nominee Amy Coney Barrett as the ninth justice he “needs” in order to “win” in the Court. In her pre-hearing submission to the Senate answering a host of questions, she indicated that she would not recuse herself from any 2020 election cases that may come to the court.
Many people compare all of this to the 2000 election and the “hanging chads” in Florida. Historically, it is closer to the election of 1876 where Democrat Samuel Tilden won the popular vote and came up one Electoral College vote shy of winning that over Republican Rutherford Hayes. The electoral slates of three Southern states were in dispute and the decision came to the Congress. After deliberation and the formation of a bipartisan commission comprised of Representatives and Senators, and the departure of the lone tie-breaking independent on the commission, replaced by a Republican, the disputed Electoral College votes were awarded to Mr. Hayes to give him a one vote Electoral College win. In exchange for giving up their candidate, the Democrats secured the end of Reconstruction in the South. It was a shameful and dirty chapter in the history of our country.
I am concerned that we may face another Constitutional crisis in this election. Barring an overwhelming landslide in favor of Mr. Biden, I think that we may be in for a long final three months of the year full of unrest and probable violence.
Mr. Trump makes it abundantly clear that he has no qualms about ignoring the Constitution and bringing the full weight of the Federal Government to preserve his power. One pundit likened it to the old saying that “if I’m going down I’m taking all of you with me.” In his Attorney General he has an accomplice that will help him bend the law if not outright ignore it in the name of allegedly preserving the safety and security of our city streets.
Meanwhile we have a Republican Senate that has lost its backbone, its allegiance to the Constitution and its voice. The president might Tweet about me!
We must all vote. We must all be vigilant. We must all be vociferous in our opposition to such a blatant attack on our Constitution.
I take solace in the fact that there are still good upstanding Americans in our midst. For the scenario to unfold as I’ve sketched it here, an awful lot of people would have to go along with what is clearly a power grab by a budding autocrat and his cronies. I have faith that enough people along the way will stand up to the bully and refuse to compromise or cooperate.
God Bless America.
Last Friday we learned of the death of Justice Ruth Bader Ginsburg. Please take a moment to think of her and her family. She was a great American and a great American success story, coming from humble roots in middle class Brooklyn New York to rise to the Supreme Court. Along the way she was a true trail blazer and a forceful voice for human rights. She will be missed.
Her death opens a seat on the Supreme Court and offers Mr. Donald J. Trump the chance to put a third Justice on the Court. Elections do have consequences. The question then becomes, when do the consequences of an election kick in? In 2016 following the death of Justice Antonin Scalia, Senate Republicans kept an open seat on the Court for roughly a year claiming that no new Justices should be nominated or voted on until after the election of a new president. President Barack Obama’s nominee Merrick Garland did not even get a hearing, much less an up or down vote.
The real player in the drama then and now is Senate Majority Leader Mitch McConnell (Tr – KY). As much as Mr. Trump has pushed and pulled and ignored the norms surrounding the office of the president, Mr. McConnell has done the most to undermine the legitimacy of the Senate and the norms that used to guide our selection of judges to federal courts and to the Supreme Court. Along with unilaterally changing the required number of votes to approve a Supreme Court Justice from 60 — which normally meant that whichever party was in power would have to have some votes from the other party in order to confirm a nominee, thus allowing for more moderate judges to make it on to the court — it now only requires 51 votes which gives each party a chance to approve radical judges aligned with their party’s interests.
Indeed, Mr. McConnell has been so focused on getting judges on to the federal courts that very, very little else has been addressed over the last two years in the Senate. Mr. McConnell put his pursuit of judges over the lives of the now 200,000 Americans dead from Covid-19. He will not address any of the pandemic relief bills so desperately needed to fight the virus and to restore our economic well being. So much for claiming to be pro-life.
Much has been and will be written about the sheer utter hypocrisy of Republicans surrounding the nomination and confirmation of a new Justice during an election year. In 2016 it was a full ten months before the election. This year it is only about six weeks before the election. In fact, some states already have early voting underway. You will see lots and lots of video clips of one Republican Senator after another twisting themselves into more knots than a pretzel trying to explain why it was different then than it is now. Sad. Additionally, please remember that there is no such thing as the “Biden Rule” or “Thurmond Rule” or even a “McConnell Rule.” That is a lot of smoke to hide what is actually going on. There is only the law.
The bottom line? There is no shame in Trumpland. They will do whatever they want and without regard to the lies, hypocrisy and sheer awfulness of it. It won’t change so I won’t waste time arguing it or bemoaning it. To quote the president’s remarks about the deaths of so many of our fellow citizens, “It is what it is.”
There is no shame. It is just pure power politics. In effect, they will steal a Supreme Court seat for the second time.
What action can those that still have a sense of duty do to stop it? Procedurally, not much. The Constitution is vague about this issue. Article III, Section I of the Constitution says merely that:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Significantly, there is no indication of how many Justices there shall be or exactly what their role should be. Starting with the Judiciary Act of 1789, Congress shapes the size and authority of the Court. Of the three branches of our government, the Supreme Court is probably the one that most resembles its origins and relies heavily on custom and tradition in the process of taking care of business. Chief Justice John Marshall, appointed to the court by President John Adams, is credited with shaping the court into the form and substance we know today. The number of Justices on the court varied over time until 1869 when the number became nine and remains so today.
All of this is background as to what means are available to Democrats, and perhaps a few Republicans, to delay the confirmation until after the election and leave the choice to the winners in the White House and the Senate.
Since it now takes only 51 votes to over-ride any legislative maneuvering and to confirm a nominee, the opposition to a hasty process can only come from political pressure. It is an election year and several Republican Senators are up for re-election and find themselves in very tight races. This issue could have a significant impact on who is elected or re-elected. If their constituents forcefully voice their opposition to proceeding without regard to the election, some sitting Senators may find it difficult to support Mr. McConnell’s plan.
So far two Republican Senators have indicated that they do not support moving ahead with the process until after the election. Is it possible more might join them? Possible, but not a sure thing. Tremendous pressure will be applied to every Republican Senator to stay in line. In that regard, when the vote is taken will be critical.
By all accounts, the only thing that Senator McConnell values more than changing the face of the judiciary is retaining his power and prestige as majority leader. He will use everything in his power to keep power. It is conceivable that to protect vulnerable Senators that could be harmed by having to vote for a Trump appointee prior to the election, he will hold hearings before the election to gauge the political winds and hold off on the actual vote until after the election. Those that are re-elected are safe, those that are not have nothing to lose. The question then becomes a matter of conscience as to how individuals may vote, a commodity that unfortunately seems to be in short supply in the current political arena.
It would be a real insult to our democratic ideals if the Republicans lose the White House and their majority in the Senate but go ahead and confirm a Trump appointee.
There are many scenarios that could play out. I have no idea what will happen. The Republicans have a three seat majority. If three Republicans vote against a nominee, the Vice President would be the tie breaker. The Democrats would need to convince at least four Republicans to vote against a nominee, something that will be difficult to do should the nominee be a truly qualified jurist.
It seems that for the Democrats to stop the appointment of another conservative Justice, thus giving them a 6-3 advantage on the Court, they need to play hardball.
During the last four years the institutions of our government have been abused, even debased, in the pursuit of power by Mr. Trump and Mr. McConnell. To play the same game, some advocate for the Democrats to say that should the process ignore the election results that they will expand the Court to include more Justices. The law designating the number of Justices can be changed by a majority vote.
Personally, I think this is wrong. It would never stop as eventually one party loses the majority and the other looks to regain the upper hand. Our system of government has been under assault for four years, messing with the Supreme Court would be the beginning of the end of any restrictions on changing the rules to suit one party and undermining everything we used to hold as important to our fundamental system of government.
It may also backfire in that some voters may vote against the Democrats if they threaten to expand the Court.
There are some twists and turns that could influence the outcome. Two Senate institutionalists are retiring this year. Senators Lamar Alexander (TN) and Pat Roberts (KS), with no debt to pay to Mr. McConnell, or to Mr. Trump, may put the traditions and unwritten norms of the Senate and the judiciary above party politics. Should Senators Lisa Murkowski (AK) and Susan Collins (ME) stick to their avowed decision to oppose a nominee that would be the four votes needed to stop this move.
Another wild card vote comes from Arizona where Senator Martha McSally is currently behind her Democrat opponent former astronaut Mark Kelly. Since Senator McSally is an interim appointee (she fills the seat that belonged to John McCain), if Mr. Kelly wins the election he would be seated by the end of November bringing down the Republican advantage in the Senate.
Numerous possibilities will be floated in the coming weeks. There are no arguments to be made or scenarios to play out should Mr. Trump get re-elected and Mr. McConnell retain his majority in the Senate. There would be nothing that could, or should, stop Mr. Trump from seating his third appointee. Mr. Trump will campaign on this issue and try to make it a referendum that he thinks will help him win. Of course he wants the campaign to be about anything that distracts from his horrifying dereliction of duty mismanaging the pandemic and the loss of over 200,000 of our fellow citizens.
However the next few weeks unfold, two things are certain. Our nation lost a truly historic presence in the Supreme Court and an already wild and improbable election cycle where anything can happen just got even wilder and more unpredictable.
Events unfolding around the country are the previews for coming attractions, and it won’t be fun. To look at what is happening in Portland Oregon one might see a trial run for more such activity — currently announced for, or underway in, Kansas City, Chicago and Albuquerque.
Going forward, remember that this is all right from the autocracy 101 hand book. I will explain my thinking in this piece, but two major things are happening. One is that Mr. Donald J. Trump is trying to get video to support his campaign claim that the cities are out of control and that “only I can fix it.” Second, and far more ominously, he is laying the ground work for declaring martial law leading into the election. Mr. Trump and his campaign know that he cannot win solely through the support of his base. He needs to keep people from voting for his opponent — voter suppression — and one way to do that is to intimidate the electorate and to make it too hard to vote. It is an election strategy that comes at the expense of American cities and their citizens. It threatens the very foundation of our democracy.
As a reminder, federal law enforcement units in full combat gear have been on the streets in Portland for about ten days. Theoretically, they are there to protect the federal court house from protesters. In fact, they have been patrolling the streets of the city picking up people that look like they might be willing to foment trouble. Let’s dive into this further.
The federal government has a duty and a right to protect federal property from destruction. In cases such as the court house in Portland, this would normally entail coordinating with the local city and state authorities for a cohesive plan and would amount to a defensive — rather than offensive — effort to keep trouble makers away. None of this is happening. There is no apparent coordination with local authorities — indeed the mayor and governor have explicitly asked those forces to leave — and they are definitely using offensive tactics with rubber bullets, tear gas, pepper spray and other agents against the crowd. To be sure, there are trouble makers in the ranks of the protesters. However, the vast majority are peaceful. Additionally, with proper techniques and coordination, peaceful protesters are likely to cooperate in identifying the bad apples in the crowd as it is in the best interests of the other protesters to keep it peaceful and to not provoke an over reaction by law enforcement. By all credible accounts, after weeks of protests, the demonstrations in Portland had settled into a peaceful occasion and were slowly dwindling in size. That is until the federal authorities arrived and began using their storm trooper tactics. In military combat gear, the federal authorities wear no name tags or unit identification badges, only a small generic “police” tag on their camos. Reportedly, they are from the Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) agencies of the Department of Homeland Security (DHS). One might ask who is guarding our borders from the supposed hoards coming across from Mexico if they are in Portland? One might also ask what training these particular agencies give to their agents regarding community policing?
If you think it is an exaggeration, look at this video of a Navy veteran trying to talk to some of the agents and getting beaten and pepper sprayed while not even raising his arms or making any threatening movements.
All of this on its own is bad. Very bad. But it portends worse things to come. Remember Mr. Trump’s words earlier this week.
“I’m going to do something, that I can tell you. Because we’re not going to let New York and Chicago and Philadelphia and Detroit and Baltimore and all of these — Oakland is a mess. We’re not going to let this happen in our country. Look at what’s going on — all run by Democrats, all run by very liberal Democrats. All run, really, by the radical left.”
So, first of all, only Democrat mayors are “bad.” Secondly, there are currently no violent demonstrations in Philadelphia, Detroit or Baltimore or other cities he is going to “dominate.” This is pure, unabashed partisan politics using federal law enforcement agencies for his personal gain.
Additionally, the hypocrisy is all too familiar. The rationale behind the Portland deployment is to protect against citizens expressing their First Amendment rights on federal property. In 2018 Mr. Trump gave full pardons to two Oregonians — father and son — that set fire in 2016 to 139 acres of federal land during Red Flag Warning conditions, endangering firefighters working on another fire nearby. It resulted in a 40 day armed occupation of the Malheur National Wildlife Refuge by protesters supporting their cause. He considered these men to be patriots. Peaceful protesters in cities are considered to be criminals.
As I have written in this space before, I was very involved in figuring out Saddam Hussein’s next moves during Gulf War I. We figured out after awhile that he pretty much always announced what he intended to do. He couldn’t always carry it out, but he was pretty straightforward in his pronouncements. Mr. Trump is the same way. He announces exactly what he plans to do.
Here is the diabolical back drop to his strategy. In my 8 May piece “American Carnage” I wondered aloud about how Mr. Trump could have so badly botched the national response to the pandemic and opined that perhaps it was deliberate. I am now sure of it. He did not create the pandemic, but he is going to use it to his advantage. Similarly, he will use the Black Lives Matter movement to declare that they are terrorists working to destroy America. He already barely hides his racism in this regard. Yesterday in a speech he blamed Mexico (again) and the BLM protests for the spread of the Coronavirus in the South and Southwest. He repeatedly declares that if the Democrats win the election, they will “destroy the suburbs,” a not-so-subtle racist canard.
Many pundits and political experts, as well as average citizens, have wondered for weeks and months why Mr. Trump refuses to put forward a national effort to halt the pandemic and to address racial injustice. It dawned on me yesterday that as former Maryland Lt. Governor and National Republican Chairman Michael Steele explained on TV yesterday — this is his plan. In other words, he will use the chaos currently engulfing our country to his advantage. He will trot out again his beliefs that the the Constitution gives him “absolute power” and that “I alone can fix it.” These will form the basis for action on his part to interfere in an election that he is already claiming — nearly daily — is rigged. He is against mail-in ballots (even though he, his family, many of his aides and many service members vote by mail) and has installed a long-time ally as Postmaster General. Mail bags mysteriously disappearing? Mail trucks mysteriously bursting into flames? The imagination can run wild.
The point is that we will not succumb to an outright coup on his part. It will be gradual with incremental decisions and policies that set the stage for him to declare the election invalid and that he must stay on to save the country. He is on record multiple times, most recently in his Fox News interview with Mike Wallace, that he will not accept the outcome of the election if he thinks it’s rigged. Asked directly if he would accept the results he said,
“I have to see. Look — I have to see. No, I’m not just going to say yes. I’m not going to say no.”
Since many of the states will use mail-in ballots, it could be days or weeks before the official results are in. If the election is close as the polls close on Election Night, and the results change dramatically against Mr. Trump when the absentee, provisional and other ballots are counted, he could well declare the entire election a fraud and cancel it. He is on record with the 2018 Florida election — which was very close and looked as if it would go against his preferred candidates — as saying that only ballots counted on Election Day should be valid. He tweeted without offering a single piece of evidence,
“The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible — ballots massively infected. Must go with Election Night.”
Rick Scott and Ron DeSantis both won their races.
We already know that Mr. Trump will do anything that benefits him. There is no ethical, moral or legal bottom for him. He now has an Attorney General that acts as his personal attorney and shares Mr. Trump’s belief in an Imperial Presidency.
The U.S. military put Mr. Trump on notice after they were used in a political stunt at Lafayette Square in Washington D.C. for his bible thumping campaign photo op that they would not be used for political purposes. Thus, Mr. Trump went to his flunkies in DHS (the top position and most of the sub-agencies are headed by “acting” leaders that do not have Senate approval) in order to create his own personal police force to pursue his personal goals.
Some may think that this is a “Chicken Little” scenario. Alarmist. Couldn’t happen here. That’s not America. Stop hyperventilating. No way. I hope that you are correct. Personally, I am watching out for our “Reichstag Fire” moment.
While you were focused on the coronavirus pandemic and its devastating impact on our society, other government functions continue as intended. Among those continuing to function, although for the first time in history they did so via video conferences, was the Supreme Court. A number of pending cases could produce profound precedents that could change the ways our government functions.
Among these are two cases involving the Electoral College and whether or not the individual Electors are obligated to vote for the Presidential and Vice Presidential candidates with the most popular votes in their respective states. The two cases stem from the 2016 election and are Chiafalo v. Washington [the state] and Colorado Department of State v. Baca. In both cases, Electors voted for candidates other than the one with the most popular votes in their state. In the Chiafalo case the Washington State Supreme Court ruled that under the Constitution the state has the power to enforce the state law that requires Electors to vote for their party’s candidate. In the Baca case, however, the The United States Court of Appeals for the 10th District (in Denver) over-ruled the state’s law requiring Electors to vote for their party’s candidate saying that under the Constitution, once an Elector is appointed, they are free to vote as they choose.
In all, in 2016 seven Electors voted for candidates that were not the one’s they were supposed to represent.
It is now up to the Supreme Court to decide which determination is correct, with profound implications for our future elections. The practices and traditions which have served us well for all these many years could be codified through the Court’s action or it could be thrown on its ear.
So what does this mean to us? Perhaps a little background is in order as the Electoral College (which is a process rather than a place — and is never mentioned in the Constitution) is often misunderstood by many of us.
The Founding Fathers did not trust the great American unwashed average citizen to make rational choices as to our elected officials. The House of Representatives was to be “The People’s House” where they could participate in governing, but the real power was in the Senate. Recall that Senators were not popularly elected until the passage of the Seventeenth Amendment which was ratified in 1913. Before that, State Legislatures elected each state’s Senators.
Likewise, the Founding Fathers did not trust a direct popular vote for president. Alexander Hamilton wrote in the Federalist Papers that the Electors would have the “information and discernment” to determine the best person for President. Under the original text of the Constitution, state legislatures selected the Electors and each Elector would cast two ballots for president. The candidate with the most votes (assuming it is a majority) would be President and the candidate with the second most votes would be Vice President. Then came the election of 1800 where Thomas Jefferson and Aaron Burr tied with 73 votes each. The decision then went to the House of Representatives where after 36 ballots (neither could garner a majority), Jefferson was voted in as President.
Following this near debacle, the Twelfth Amendment was ratified in 1804. This modified how Electors cast their ballots, separating the vote for President from that of Vice President. It did not designate how the Electors would be chosen.
Over time, most states decided that the Electoral votes from their state would go to the candidate with the most popular votes. (Maine and Nebraska have laws that divide the Electoral votes by Congressional district. It is thus possible that votes from those states could go to two candidates.) Twenty-six states and the District of Columbia (they gained Electoral votes under the Twenty-third Amendment in 1961) have laws that bind the Electors to vote the same as the popular vote.
In practice, when we vote we do not vote for the president. We vote for Electors who promise to vote for a particular candidate. Most Electors are party luminaries or workers in the same party as the candidate. Where laws do not govern the specifics of how a state’s Electors must vote, it is assumed that by pledging their loyalty to a particular party’s candidate, they will so vote.
Over time, “faithless Electors” — those that do not follow the popular vote — have not decided any election. However, there were at least five presidential elections where the winner would have been different if ten Electors had changed their vote. Likewise, there have been five elections where a president lost the popular vote but won the Electoral College vote (1824, 1876, 1888, 2000, and 2016).
Here is another fun fact about presidential elections. If the electoral vote is tied, the decision rests with the House for President and the Senate for Vice President. But here’s the rub. Each state votes as a block and each state counts as one vote. Thus the vote for President from the North Dakota delegation (with only one Representative) counts the same as the vote from California with 53 Representatives.
Clearly, our president is not, and never has been, decided by the popular vote in any way that would be comparable to our election for every other office in the land since 1913. Over the years there have been many attempts to do away with the current system and to have the voters directly decide on the President and Vice President. It would require an Act of Congress and ratification from the states to do so because it would be a change to the Constitution. The closest attempt to change it was the passage of a resolution in the House of Representatives in 1969 calling for a direct vote with a run off if no candidate received at least forty percent of the vote. The resolution failed to pass in the Senate.
The dilemma the Supreme Court faces is how to interpret the Constitution without upending two centuries of practice. Essentially, our country devised a new way of electing our presidents, different from the original ideas of the Founding Fathers, even if we keep the relics and traditions of that system. If the “originalists” on the Court decide that the Constitution intended for Electors to use their discretion and vote for whomever they want, the popular vote could become meaningless as there would be no obligation to vote for the winner in their respective states. They could vote for anyone, potentially throwing the system into chaos. If the Court decides that states can in fact determine how their Electors are chosen and that the Electors must vote as per the state’s law, then they run the risk of voiding what some consider to be the original intent of the Founding Fathers.
Given the ongoing destruction of long-standing norms, practices and ethical behavior that previously stood the test of time, it is imperative that the Court codify existing practice and give the states the power to best determine how their Electors will be allocated. Further, the Congress should again address the issues surrounding the use of Electors to determine our presidents. Even if one is in favor of the way we have come to interpret the value of the Electoral College (theoretically giving more states a chance to participate in the selection of our presidents) it is time to put into law how those Electors are chosen. To do otherwise invites disaster in either the near or long term. I have voiced my opinion in this space in previous postings that I believe we should do away with the anachronistic Electoral College and provide for direct popular votes for president.
Either way, we should not leave it up to chance. The forthcoming decision from the Supreme Court will have a direct impact on our future elections. Let’s hope that they get it right and keep the states in charge of enforcing votes from their Electors. The Congress must then follow up to instill a rigorous and uniform method for selecting Electors and their subsequent votes — either by putting our current system into law or by abolishing the Electoral College and providing for the direct election of President and Vice President. The future of our Republic demands it.
Following his Impeachment Trial, Mr. Donald J. Trump became predictably vengeful and embarked on a revenge tour. He is now systematically using the power of the presidency to invoke his personal wrath on anyone that did not faithfully and fully support him — personally — rather than doing their duty and supporting their oath to the Constitution. The purge will only end when the Trump regime is fully stocked with Trump loyalists, regardless of their ability to handle the job, personal background, or knowledge of anything related to the job. For the most part, expect it to be the “B Team” — or maybe more like “F Troop.”
Mr. Trump is taking another page out of the Autocracy 101 text book. We should not be surprised.
Recently, I was referred to an article in the New York Review of Books by Masha Gessen. Titled Autocracy: Rules for Survival it provides six rules based on living much of her life in autocracies and becoming an expert on Russia’s Vladimir Putin. Ms. Gessen is much better at explaining herself than I could ever be — it is worth the time to read the original — and her November 2016 article is stunningly prescient in predicting Mr. Trump’s behavior in the years following his election.
In brief, these are the six rules.
- Believe the autocrat. They always tell you exactly what they are going to do. Mr. Trump exhibits this behavior. What some consider to be exaggeration, hyperbole or “Trump being Trump” is actually him telling you what he is going to do. Or at least what he wants to do if he can figure out a way to get away with it. I first observed this trait in Gulf War I where I was involved in a group tasked with the formulation of a policy and a strategy to get Saddam Hussein out of Kuwait and to restore a semblance of order in the Gulf region. With study, it became obvious that he was telling the world exactly what he intended to do — or what he would try to do — but you had to peel away the bombastic language to fully understand what he was saying.
- Do not be taken in by small signs of normality. When things seem out of control, the smallest sense of normality tends to soothe people’s concerns. We all need reassurances. When things are at their worst, anything that makes it seem as if the situation is temporary and that it will all be okay in the end is a salve that may hide the wound rather than heal it. What is happening today in our country is not normal. No one-off State of the Union speech or any other glimmer of normal presidential behavior should mask the fact that 99% of the time our president is out of control.
- Institutions will not save you. American values are based on ideas like a free press, an independent judiciary, Congressional oversight of the Executive Branch and leaders within the government protecting the Constitution for all Americans. It takes about two seconds to recall that Mr. Trump fires anyone that stands up to him, constantly debases members of the media, attacks judges that do not do want he wants, and always succeeds in getting the formerly Republican members of Congress to acquiesce to his every whim. Mr. Trump and his regime took a steam roller to the established norms of government and continue to test the limits of the law in every corner of government. There are no longer any safety barriers keeping the regime within safe boundaries.
- Be outraged. While many of us may no longer be surprised by statements and actions from Mr. Trump, one needs to continue to be shocked. Do not normalize bad behavior especially when it threatens the fabric of our democracy. Be prepared for ridicule when continuing to call out such awful behavior while others continue with their mantra that it is just Trump being Trump. As he himself calls it when belittling those that critique him, be prepared for accusations of suffering from Trump Derangement Syndrome. Be prepared for unpleasant attacks from his most ardent supporters. Do not back off.
- Don’t make compromises. So many former Republicans, especially in the Senate, predicted that Mr. Trump as president would be the worst thing that ever happened to our country. After three years of his presidency they are now his most loyal and fervent supporters. Their support is not necessarily a re-evaluation of his competency or ability or vision, but rather it is a compromise of their own values in order to retain power. Mr. Trump is no different than the person they ardently decried during the campaign. Those around him have changed.
- Remember the future. Mr. Trump, his regime, and Trumpism cannot last forever. Look to reform our institutions in order to restore the foundations of our democracy. Put into law what we as a country previously took to be accepted norms of behavior that our leaders would honor. Work to project a new vision for our country that is inclusive and that addresses the problems that Mr. Trump was able to cynically manipulate for his own purposes. Stay in the game.
In the every day course of our own lives it is possible to lose sight of the big picture attack on our democracy. It’s hard. Frankly, it’s exhausting. It is easy to lose oneself in areas outside of politics because it is just so relentlessly Trump. Every gosh darn day there is some new Tweet or speech or rally that saps all of the energy from one’s soul when it is clear that he has no idea what he is talking about. Nearly 17,000 documented and provable lies during his presidency numbs the soul and becomes normalized.
And that is the plan.
Autocracy thrives on indifference or exhaustion or just turning it over to the regime and letting them take care of it all as long as my day-to-day life is not impacted. Mr. Trump and his regime are interested only in themselves and in the amassing of personal power. Period. Anything else is a sales pitch presented in the moment to get a cheer or to attack an opponent or to appear to care. Remember that fundamentally, they don’t care about you or me or the rule of law. Only themselves.
It is up to us as citizens to stay vigilant and to call out the fouls when we see them.
The Impeachment Trial of Donald John Trump continues today. It is impossible to know exactly what will occur over the next 30 hours or so, but a betting person would place money on the increasing likelihood that the Senate will vote “no” on calling witnesses or documents during the trial and then proceed to acquit Mr. Trump of abuse of power and obstruction of Congress.
And we will be the worse for it.
Politics aside, meaning whether or not you felt that Mr. Trump should be removed from office, all of us should be appalled that the Senate will conclude the trial without actually holding a trial as we all know it should be conducted. Indeed, in the latest Quinnipiac Poll — a source respected by all mainstream politicians — 75% of respondents stated that there should be witnesses questioned and documents reviewed during the Impeachment Trial. Only 20% said that they were not necessary. Those in favor included a majority of Republicans as well as overwhelming numbers of Democrats and Independents. The reasons for wanting them may vary — for proving either an acquittal or a conviction — but the fact remains that they are wanted. So much for elected officials listening to their constituents.
More shocking, more incredible, more dangerous than all of the preposterous arguments being put forward by the Trump cultists, is the one proffered by Professor Alan Dershowitz, one of the president’s defense lawyers. His twisted logic essentially says that a president can do anything that he wants. Period. He is totally in line with Mr. Trump’s declaration, “Then, I have an Article II, where I have the right to do whatever I want as president.”
Specifically, Professor Dershowitz argued that if a president is running for re-election and believes that being re-elected is in the public interest, then that person can do whatever is necessary to get re-elected. After a long explanation, he summarized by saying, “If a president does something he believes will help him get elected is in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
Think about the ramifications of saying that a president can do anything to get elected and the Congress can do nothing about it. The imagination runs wild.
So for those keeping score at home, here is where we are:
- The president believes that he does not have to submit to oversight from the Congress and therefore refuses to turn over any documents or witnesses to help Congress do its Constitutionally mandated job.
- The entire membership of one political party in Congress supports that assertion and actively works to keep witnesses and documents from their oversight.
- The defense team of the president confirms that the president does not have to submit to Congressional oversight.
- The defense team then goes one step further by saying that if a president believes that his actions are in the “national interest” then he can do anything that he wants to do.
- The president believes, and now has had it affirmed, that he is the state. Whatever is good for him is good for the country.
- The Senate votes to affirm all of the above.
Put all the pieces together and we no longer have an accountable president. We have the equivalent of a divine king. (There are many evangelicals that believe that it is God’s will that Mr. Trump was elected.) Our very own Louis XIV! (Famous quote one: “It is legal because I wish it.” Famous quote two: “Has God forgotten all I have done for Him?”) I am not hyperventilating, or over-stating the case when I use that phrase because the arguments are in the same vein as those used for the divine right of kings. To continue in this direction puts the great American experiment on life support.
Rather than “king” maybe we should worry that we will soon have an “emperor.” Perhaps the best historical analogy is the end of the Roman Republic. After long and bitter political infighting, the Senate abdicated its responsibilities to an Emperor.
Is there any doubt that Mr. Trump, given his track record to date and proven propensity to do only what he thinks personally benefits him, will stop at nothing to win the next election? Then what?
The possible consequences are limited only by one’s own imagination. Consider this scenario as an example. Mr. Trump already believes that he lost the 2016 popular vote because three million people voted illegally. He formed a commission to “prove” it. (The commission disbanded without finding any evidence of such a thing.) Suppose the polls show that he will lose again in 2020 and decides that all of those illegal voters were in California and that they were all illegal immigrants (another theory he has espoused with no proof what-so-ever)? Suppose he then declares that it is in the national interest to prevent that from happening and shuts down polling places in California or, after the results are in, declares that it is in the national interest to nullify all votes in California? What mechanism exists to prevent that? Public outrage? A dysfunctional Congress? The press?
It is increasingly clear that our Founding Fathers assumed that at least a modicum of decency and fair play would exist in either the presidency or in the Congress in order to make the checks and balances actually work. We now clearly can see that an individual who knows no boundaries and bursts through any guardrails that may have existed, coupled to the lack of any will to stop him, means that anything goes.
Here’s the thing to remember. Whatever shenanigans happen in the next few days, whoever argues that the Trump cultists are on the wrong side of history, or that they are setting a terrible precedent for future presidents or even that our democracy may be in jeopardy, there is only one answer.
Repeat after me.
THEY. DON’T. CARE.
All that matters now is protecting Mr. Trump who in turn promises to protect them (Ha!) which allows them to retain power.
NOTHING. ELSE. MATTERS.
Is it too much to say that we now have a king rather than a president? Perhaps. Only the events over the next few months will let us know for sure. I for one am extremely nervous about what Mr. Trump thinks he can do now that he feels no consequences for his election dallying with Russia and his extortion attempts on Ukraine.
Everything seems to be fair game to him and he sees no problem with his immoral behavior. Our only recourse is to be vigilant, continue to cry “foul” while holding our Senators and Representatives accountable and turning out in record numbers in November to vote these people into obscurity.
The proceedings in the Senate concerning the Impeachment of Donald John Trump got underway this afternoon. Right from the start the fix is in. We can no longer call it a trial. I don’t know what else to call it other than a whitewash.
Moments ago the Republicans voted unanimously not to have any witnesses or documents produced as evidence. How one could call this a trial, when they refuse to look at any evidence or listen to any witnesses, is beyond me.
Technically, they voted to table a motion to an amendment to Senate Majority Leader Mitch McConnell’s (TR-Ky) (aka “midnight Mitch”) rules for this hearing. In theory, they could call for evidence, — get this — at the end of the whatever we call this. The ramifications are many, including solidifying Mr. Trump’s claims that he can do anything he wants under Article II of the Constitution. Oversight is DOA.
I am dumbfounded that a trial can proceed without any evidence or witnesses.
Recent polls show that 71% of Americans think that witnesses and evidence should be presented at this Impeachment Trial. But now we aren’t going to have a trial. We are going to have a whitewash of the president’s actions.
It seems that if the Republicans really wanted to exonerate the president, they would want to produce witnesses and evidence that exonerates him. Without any evidence what-so-ever no one should claim that he was exonerated. Having listened to all of the evidence, they may have decided to acquit him, but at least all the information would be out there.
Many pundits, historians and former politicians have often said that the Republicans in Congress are “on the wrong side of history” or “will have to look themselves in the mirror” and that they have lost all integrity. Clearly, they do not care. All that matters now, is that they retain power at all costs. All costs. All Republicans in Congress are all in on Trump. They own everything that happens and all of his actions from here on in.
One can only conclude that the Republicans know in their hearts that the charges are true and that the president did all that he is accused of doing, but that keeping power is more important so the facts must not come out. They are clearly afraid that if all of the evidence came out, they would be in political hot water if they acquitted him anyway.
Our democracy is becoming a sham.
God Bless America!
It occurred to me as I watched the Impeachment Trial of Donald John Trump officially begin last Thursday, that like several banks and corporations during the Great Recession of the 2000’s, the amount of lying, conniving, lawbreaking, personal greed and damage to the dignity of the Office of the President of the United States is so much, that it becomes too big for him to fail. Or in this case, to be convicted. Republicans in the House and Senate, along with key Cabinet positions in his Administration, have bought into the Trump Cult to such a degree that they cannot afford for him to fail lest they expose their own weaknesses, misconduct, phoniness, fraudulent actions and other misdeeds.
As things now stand, the trial that begins in earnest next Tuesday will be a sham. The new developments coming out almost daily continue to show the depth and breadth of Mr. Trump’s efforts to rig the 2020 election. Those efforts are matched by the depth and breadth of involvement by members of his Administration and his supporters in Congress.
You want a good example? How about the fact the we are learning from written documents, including phone calls and text messages, that Representative Devin Nunes (R-CA) and his chief aide, Mr. Derek Harvey were in close contact with Mr. Lev Parnas, the chief “associate” (read thug) working with Mr. Rudy Giuliani. These are the guys on the ground involved in the Ukraine caper trying to find manufactured dirt on Mr. Trump’s probable election opponent Mr. Joe Biden. Mr. Nunes and Mr. Harvey were aiding and abetting the operation. This is the same Devin Nunes that is the ranking member of the House Intelligence Committee that investigated Mr. Trump’s activities. He is one of those guys who shouted (literally) throughout the hearings that it was all made up, a hoax and a sham. Even as he was in on it. And even as he was supposed to help supervise the proceedings.
It is sometimes difficult to keep track of all the names and institutions that are normally outside the course of daily events. Sometimes I think that, like at the ball park, “you can’t tell the players without a score card!” But it is important to see what is going on in plain sight as well as behind closed doors.
One of those institutions is the U.S. Government Accountability Office (GAO) (although Mr. Trump tweets it as GOA). This is the non-partisan group tasked by law to monitor government activities and to report its findings to Congress. The GAO determined last week that the president’s withholding of appropriated funds for Ukraine broke the law. Specifically, it broke the 1974 Impoundment Control Act (ICA) which was enacted in response to President Richard Nixon’s efforts to withhold appropriated funds to distract from his own Impeachment proceedings. Several emails among government officials had already surfaced that in the months that the funds were withheld, conscientious government officials cited the law as they sought to determine why the funds were not sent. It is not an obscure or non-relevant provision as some in the administration would like you to believe.
In the past week, Mr. Lev Parnas has been dropping some real bomb shells. While his testimony should not be taken as the absolute truth on its own merits, it does provide insight into the thinking going on and provides a road map for further investigation. While many impugn his character, keep in mind that criminals commit crimes and they often turn on their fellow criminals for purposes of their own. It does not mean that they aren’t factual. But don’t take him at his word. Look at the documents that he and his lawyers continue to turn over to Congress. People lie. Documents tend to lead to the truth.
In this busy week, revelations surfaced that the former U.S. Ambassador to Ukraine Marie Yovanovitch (the ambassador Mr. Giuliani wanted fired for interfering with his extortion scheme) may have been under physical surveillance by Americans and in danger from Americans. Not a peep from the Secretary of State defending his career Foreign Service Officers until cornered at a press conference yesterday. He announced no action to conduct an investigation. Days earlier, Ukraine began an investigation. On their own. As of today, Ukrainian officials asked the U.S. FBI to help them, but still no investigation initiated by any U.S. agency to protect our diplomats. Is it because this administration does not care about U.S. citizens and diplomats overseas or is it because they do not want to know the answer?
More news this week as Mr. Giuliani, Mr. Parnas and the third thug in the ring, Mr. Igor Furman were reportedly being paid by a Russian oligarch (under indictment in the US) with close ties to Vladimir Putin. (Why is it that all of Mr. Trump’s roads lead to Putin?)
As the evidence mounts, it is clear that this extortion scheme went far deeper than “just” a phone call between two presidents. To date, no Republican has seriously contested any of the evidence produced around the Impeachment. They have attacked witnesses, sources of information, process and other things that have nothing to do with the facts. The facts are not in dispute. For that matter, Mr. Trump himself admits to them.
As part of their scheme to white wash the Impeachment Trial, the Senate Republicans are setting up false equivalencies. This is especially true with respect to witnesses and additional evidence not available when the House did its investigation. The president continues to block key information and to prevent witnesses from testifying (in my view this just reinforces that they have no exculpatory evidence). The Republicans will claim that since they did not get, say, Mr. Hunter Biden to testify, then not having Mr. John Bolton testify means that it is “even” — no one got what they wanted, and thus that it is fair. Baloney. Hunter Biden has no material testimony as to what Mr. Trump did. Mr. Bolton has significant first hand knowledge. There are a multitude of similar arguments being put forward to prevent the truth from coming out. This sets up their ultimate defense.
The Republican defense argument is likely to be “so what?” “Yes, he did it. What’s it to ya?” Reasonable people may dispute whether the punishment, removal from office, fits the crime, extorting a foreign power to get them to interfere in a US election, but the facts remain. Indeed, the vast scope of the whole scheme is becoming clearer and clearer. It was a classic mob action. It also indicates a pattern of behavior by the president. It is clear that he will continue to act this way. It is his nature and, we now know, the way he operates in every aspect of his life, past and present. It is time to hold him accountable. His behavior is not going to get better, and without accountability it can get a lot worse.
It seems to me that Mr. Trump now has sufficient accomplices in his administration, and in the Congress, that he feels he can get away with anything. They do not think that anything is off limits to them in the pursuit of their self-interests and their own power, including criminal activity. Nothing. And that is not hyperbole as we continue to see for ourselves.
I have also come to understand that we will never know the real truth behind, or the extent of the corruption. The system is not geared for fraud and criminal activity on such a scale, especially when it is coordinated by the President of the United States. And most especially when the Attorney General of the United States does everything in or out of his power to protect the actions of the president. It’s just “too big.” Sadly, this includes whatever it is Vladimir Putin has on him. (My view is that has to do with money laundering and other illegal financial ties.)
As Timothy Egan put it more eloquently than I in a New York Times essay, evil attracts evil. In the absence of good people acting, evil triumphs. There is evil in the White House and it is spreading throughout our government.
The last few weeks produced a year’s worth of newsworthy events. Among other things was the Commander-in-Chief interfering with the effective application of good order and discipline in the military under the Uniform Code of Military Justice (UCMJ). The president pardoned three men convicted or accused (and awaiting trial) for war crimes — two Army officers and one Navy Chief Petty Officer. In doing so he further demonstrated a total lack of understanding of the military by tweeting (of course) that he did so because “we train our boys to be killing machines and then prosecute them when they kill!” Such statements totally ignore the fact that what separates our military from most others is that in training to fight for our country, our military also learns to do so with discipline, under a code of conduct that prohibits indiscriminate killing, especially of civilians and works to protect the honor and dignity of our nation’s morals, espoused in a speech by General Douglas MacArthur, as “duty, honor, country.” Note that all three men were brought up on charges of crimes under the UCMJ by their own soldiers and Sailors, not by higher ranking officers trying to make some politically correct example of them, as the president implies.
Hanging over everything of course, is the impending impeachment of the President of the United States. In the course of events, three particularly troubling things are happening that in my opinion fundamentally threaten the nature of our democracy.
Very troubling is the conscious use of Russian propaganda on the part of Republican U.S. Senators to try and defend the president’s shakedown scheme against Ukraine to help his own reelection in 2020 using taxpayer money. Otherwise knowledgeable and intelligent Republican Senators such as John Neely Kennedy (LA) and Ted Cruz (TX) and others publicly say that we do not know whether the Russians meddled in the 2016 election, rather it was the Ukrainians. Such garbage could have been written by the former KGB officer Vladimir Putin himself. A unanimous intelligence community agrees it was the Russians. Period. They agree it was not Ukraine, a fact FBI Director Christopher Wray reiterated just last week. The alleged Ukrainian “meddling” is most often a reference to a single op-ed piece written by the Ukrainian Ambassador to the United States criticizing then candidate Trump for saying that Crimea (stolen from Ukraine by force by Russia) “belongs” to Russia. Since Ukraine and Russia continue in a hot war, it might not be too far of a stretch to say that there were some hard feelings towards Mr. Trump saying, essentially, that Ukraine should be a part of Russia again. Another statement straight out of Putin’s talking points.
It is shameful that Republican Representatives and Senators perpetuate such lies on the citizens of the greatest nation on Earth.
But it get worse.
The long anticipated Department of Justice (DOJ) Inspector General (IG) report on the origins of the investigation into meddling in the 2016 election came out. This report, according to Mr. Trump and his supporters, would unmask the “deep state” and clearly show that the FBI and DOJ were out to keep Mr. Trump from becoming president through a vast “liberal” conspiracy. It did none of those things. None. On the contrary, while the IG’s report found some troubling procedural problems that need to be corrected or changed, it explicitly says that the basis of the investigation was solid, within DOJ guidelines, had no bias behind any of the decisions made and was fully appropriate.
The president’s reaction? He lashed out as usual. Among other things he referred to the people in the FBI as “scum.” Perhaps we as a country have come to expect that from a President of the United States, but I have not. But, I am no longer surprised. What deeply troubles me is that Attorney General William Barr, the DOJ and FBI boss, echoed the president’s remarks. Instead of supporting the FBI or the work of the independent IG, in an interview with NBC News he said about the report and investigation:
“I think our nation was turned on its head for three years based on a completely bogus narrative that was largely fanned and hyped by a completely irresponsible press. I think there were gross abuses and inexplicable behavior that is intolerable in the FBI.”
In an interview with the Wall Street Journal he said of the investigation “It was a travesty, and there were many abuses.” So much for the credibility of an independent IG and so much for the Attorney General working for the people of the United States rather than being the president’s personal shill, I mean attorney.
Deeply troubling. But it gets worse yet.
The president is about to be impeached (appropriately in my opinion, but that’s a post for another day). The Senate will then conduct a trial on the two Articles of Impeachment to either remove Mr. Trump from office, or acquit him.
All 100 of the sitting Senators act as jurors and take an oath. It is not the oath of office, but an oath as a juror. According to Rule XXV of the Senate Rules On Impeachment Trials the oath is:
“I solemnly swear (or affirm) that in all things appertaining to the trial of ___, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”
The Senate Majority Leader Mitch McConnell (R-KY) went on TV and declared that he is “in total coordination with the White House counsel” on the rules and parameters of the trial — such as calling witnesses or not — and opined that the president would be acquitted and that all Republicans would so vote. Senator McConnell gets to set the rules of this trial and is also a juror. Fair and impartial? It is like the jury foreman in a case getting together with the defense attorney before the trial to determine how they will acquit the defendant.
Other Republican Senators have expressed similar opinions, most notably Senator Lindsey Graham (R-SC). On Sunday’s Face the Nation he said that he was going to vote to acquit the president and that “I don’t need any witnesses. I am ready to vote on the underlying articles.” Earlier last week he said that he did not even intend to review any of the facts raised before the House of Representatives during the investigation leading to the Articles of Impeachment. So much for following one’s oath.
Impeachment is a serious and sobering step. The Senate deserves to treat it as such. Instead we continue to hear Republicans moan and groan about “hoaxes” “witch hunts” “undermining the 2016 election” and other whiny defenses of the president. Please note that not one of them disputes the facts as presented in the House.
Our democracy is in trouble as the president continues to argue that he is above the law. He claims that he cannot be investigated by law enforcement or by the Congress. Nobody or no entity or no organization can do so. His lawyers have even argued in court that if the president actually did shoot someone on Fifth Avenue in New York (as he famously said during his campaign) that he could not be prosecuted.
In recent days, Mr. Trump’s “personal lawyer” Rudy Guiliani, just back from a “fact finding” trip to Ukraine, is bragging to anyone that will listen that he “forced out” U.S. Ambassador Marie Yovanavitch because she was getting in the way of his schemes.
The president is being impeached for Obstruction of Congress and Abuse of Power. It is clear that he did not just abuse power, rather that he continues abusing power today. Events are unfolding that impact our elections. Not the one in 2016, but the upcoming 2020 elections. We already know that Mr. Trump thinks his position is so weak that he must cheat to win. He took advantage of Russian meddling and he has often publicly stated that he will take help again from other nations if it will help him win.
The past is past. We need to protect our future.
Several events last week disturbed me to my core as I realized the depths that Mr. Donald J. Trump and his administration will go to protect him from the rule of law and any sort of accountability. One of the prominent warning signals came in the form of Attorney General William Barr’s testimony before the Senate Judiciary Committee. In case you missed the live broadcast of his appearance, I will point out that it was not just what he said in response to questions but also how he said it. He was clearly annoyed that any Senator would question his decisions or his power as the head of law enforcement in the United States. Perhaps more chilling was his unadulterated and unabashed pro-Trump posture. He is no longer the Attorney General of the United States, or even the attorney charged with protecting the presidency as an institution. He clearly and forcefully defended Mr. Trump, the man, and not the president, the office.
Among many startling elements of A.G. Barr’s comments regarding the Mueller Report are what I see as the three most egregious points:
- The most troubling and news worthy defense of Mr. Trump by A.G. Barr was his insistence that the president is above the law. You read that correctly. In response to a question on obstruction of justice — and the fact that if Mr. Trump was successful in carrying out the obstruction, then that could be the reason that no conspiracy to work with the Russians was proved — Mr. Barr stated that under the Constitution the president has the authority to oversee investigations (including those involving the president) and therefore has the authority to shut them down. Thus, there can be no obstruction even if the president stops an investigation into himself because it is within his power. He further argued that this is especially true if the president thought the investigation “was not well founded” or “groundless.” The president has the ability to declare it so. “The president does not have to sit there, constitutionally, and allow it to run its course.” And there you have it. All the president has to do is say that there is no reason to investigate him and then no one can investigate him. (I assume a “hoax” is “not well founded.”) The Attorney General believes the president is above the law. (For info, Article I for the proposed impeachment of Richard Nixon was obstruction of justice.)
- The second most troubling aspect of A.G. Barr’s testimony is that he waffled mightily in response to a question as to whether the president or any one else at the White House asked him to investigate others. The context was a section of the Mueller Report that indicated Mr. Trump pressured the Department of Justice (DOJ) to re-open an investigation of Secretary Hillary Clinton and others of Mr. Trump’s political opponents after the election. He finally answered “I don’t know.” Right. (As Senator Kamala Harris (D-CA) pointed out, that’s not something one might forget.) It used to be a bipartisan agreement that a president using his office to investigate a political opponent on purely political grounds was an abuse of power (Article II of those brought against Mr. Nixon).
- The third most troubling comment was the confirmation by A.G. Barr that Special Counsel Mueller objected to the characterization of his report put forward by Mr. Barr on 24 March. In his statement summarizing the results of the Report he claimed that Mr. Mueller found no criminal evidence of conspiracy or obstruction. When the report was finally released, we found that was not true. Mr. Mueller wrote to Mr. Barr three days after his March summary to object to the characterization of his work. “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.” Some Senators think that Mr. Barr lied in his previous testimony when he said that he had not heard any objections from Mr. Mueller when in fact he had already received and read the letter.
There were more, but then you can read it for yourself.
Let’s put a few more developments from recent days out there to paint a picture. Consider the following:
- In an on-air discussion with Sean Hannity of Fox News Mr. Trump said of the Mueller Investigation, “This was a coup. This was an attempted overthrow of the United States government.” Incredibly — although I don’t know why I continue to be surprised — Representative Kevin McCarthy (R-CA), the House Minority Leader, used the same word in response to a reporter’s question.
- The Trump Administration asserted that it will fight or ignore any House subpoena. They are also going to court to stop subpoenas of other entities where Congress is seeking information about the president and possible financial ties to other governments or foreign entities. “We’re fighting all the subpoenas.” (Contempt of Congress — refusing subpoenas — was Article III of those against Mr. Nixon.)
- Mr. Trump still does not acknowledge Russian interference in the 2016 election. According to the Mueller Report there were 251 contacts between Trump campaign officials and Russian-connected operatives including 37 meetings in person or via Skype. At least thirty-three campaign officials and advisers held the meetings or were aware of such meetings. Recall that the Mueller Report concluded that “the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.”
On Friday, Mr. Trump and Russian Federation President Vladimir Putin held a nearly ninety minute phone call. Mr. Trump did not confront Mr. Putin about the attacks. President Obama may have been asleep at the switch and not done all that he could as his administration learned the breadth and depth of Russian intrusion, but he did talk directly to Mr. Putin to warn him against further meddling. He also imposed sanctions against Russia (which are the ones that presidential adviser Michael Flynn got into trouble over for calling the Russian Ambassador and saying that Mr. Trump would lift them). President Obama also expelled 35 Russian diplomats from the US and shut down two of their facilities in the US. Yet in his ninety minute conversation with Mr. Putin, Mr. Trump did not even bring up the Russian actions except to say that he and Mr. Putin did not collude and Mr. Putin should know because he was the one who was supposed to have done it. They then agreed that it was a hoax. You can’t make this stuff up.
So what does all of this mean?
When taken in their totality it means that we have a president with no boundaries, no oversight, and no sense of what is right. Mr. Trump still has not been held accountable for any of his outrageous actions and must surely think that the preponderance of evidence indicates that he never will be. Most certainly not by the Republicans in the Senate and not by the Attorney General. In fact, should someone, somehow initiate proceedings against the president, we already know that his A.G. says he can shut it down because, well, just because he can if he wants to.
It is also clear that Mr. Trump will not take Executive Action to stop Russian interference in the 2020 election. Although various agencies are working to shore up our defenses, there is no national level coordination and planning under way to prevent further meddling. Indeed, Mr. Trump and others in his administration implied that he would take their help again in 2020.(Russia if you’re listening…)
I think that the evidence above also indicates the Mr. Trump believes that the purpose of the federal government is to do his bidding and therefore he will not hesitate to use the full power and strength of the U.S. government to take down his political opponents. Apparently he will do so with the willing acquiescence of the A.G. and Republicans in the House and Senate.
Talk of coups really scares me. Do the president and the leader of the Republican Party in the House really think that the Mueller Investigation was an attempted coup? Stop and think about that for a moment. Anyone that threatens this president’s sense of well-being is a direct threat to him. Really? A coup? If they actually believe that then there is nothing he will stop at to prevent losing his power. And who will stop him? The House is being ignored (A.G. Barr won’t even show up to testify about the Mueller Report and his role in its release). No oversight there. The Senate trembles in its boots that one of their Republican colleagues will be the subject of a nasty Tweet. No oversight there. The Attorney General is now the personal defense attorney for Mr. Trump. No oversight there. The fix is in.
How far will he go? Declare martial law for some other self-created crisis? Nullify a close election he loses? Suspend the election because he Tweets out that the Democrats are attempting a coup? I am not sure what he is capable of doing.
Do I sound like a wing nut conspiracy dealer with too much time on his hands? I hope so.
And yet, the things I’ve mentioned above happened in only a matter of days. In other administrations, Republican or Democrat, there would be a major reaction to such a clear threat to our norms and national well-being. Sadly, most people just dismiss it as business as usual.
One theory floating around is that Mr. Trump and his advisers and supporters in Congress are pushing the Democrats in the House as hard as they can so that they are left with little recourse except for impeachment. Improbably, the Republicans think that an impeachment proceeding against Mr. Trump will help his approval ratings and “guarantee” his re-election in 2020. To them there is no down side as they know that the Senate would never convict him of the Articles of Impeachment. If that is the plan, how much further will the administration overflow the banks of good government to create a flood of institutional indignities to force the issue?
I worry that we are in the midst of the creeping destruction of our Republic. It is taking place in slow motion and in public so that most people who are rightly concerned with the day-to-day effort of just going to work, to school and of trying to keep food on the table don’t see it. Like everything associated with this president, it is hiding in plain sight.