Month: June 2018

In Case You Missed It – June 6th

The news this morning: Eagles football team didn’t show at the White House, but the ceremony went on anyway.  It did raise the question; does the President know the words to the National Anthem?  Paul Manafort contacted witnesses in his upcoming trial to make sure they got their story straight (he must not know that witness tampering goes in the “cloud” and stays in the “cloud”) and will probably be in jail before his trial begins. This increases the pressure on him to cut a deal with the Mueller team:  what does he know?  And of course, primary elections across the country, setting the stage for a possible Democratic Congress after November.  Does this mean impeachment?

Kelly Sadler, the White House staffer who made the comment that it didn’t matter what John McCain says because, “…he’ll be dead soon,” is out of the White House.  Whether she left because of the comment, or for some other reason is unknown.

It’s the fiftieth anniversary of the assassination of Robert Kennedy (I can still remember the shock of hearing that as I woke up to the “clock-radio”) and the seventy-fourth anniversary of the D-Day Invasion.  Bill Clinton discovered that the excuses about his sexual exploits that worked in the 1990’s don’t work in the “Me-Too” era.  He faltered in a “softball” interview with NBC’s Craig Melvin.  Clinton needs to “fade away.”

Speaking of “Me-Too,” remember the Stanford swimmer case, where the man was convicted of sexual assault (attacking an unconscious woman by a dumpster) but received a short six-month sentence where he served three?  The judge who issued that sentence was recalled from office yesterday.

But as the political news clogs the airways, there are changes quietly being made in the US government that will alter our world.  President Trump has asked Secretary of Energy Rick Perry to use his emergency authority (until now confined to natural disasters) to force energy utilities to use more expensive and polluting coal plants rather than natural gas.  Trump is trying to prop up the coal industry at the cost of both the environment and consumers.  Employment in the coal industry is at 53,000; up from a low of 49,000 two years ago.

Scott Pruitt, the embattled EPA Director, used his staff to search for used Trump Hotel mattresses as he looked for a new apartment.  He also used his aides to help his wife find a job with fast food giant Chick-Fila. The good news, as long as he keeps concentrating on this stuff, he won’t get to damage the environment.

Grizzly bears in the Yellowstone Park region were taken off of the endangered species list a year ago. Bears had grown from a low of 136 in 1975 to around 700 in 2017.  The Wyoming wildlife commission just approved a hunt for as many as twenty-two bears, the first time in four decades.  This is how the bears got on the endangered list in the first place.

The ongoing crisis at the border has grown worse, with thousands of children being held in temporary shelters, including a closed Wal-Mart, while the Administration continues to remove children from parents who arrive, both legally and illegally, to ask for refuge in the United States.  The United Nations Commission on Human Rights has called on the US to end the practice:  US Ambassador Nikki Haley responded by attacking the Commission.

Vice President Pence is planning to go back to South America, working to ostracize Venezuela from the Organization of American States, and putting more pressure on the failing government there. The Vice President is getting out of the US and away from the political crisis.  He also sent his heartfelt concerns to the people of Guatemala, where a volcanic eruption has buried several villages.  Hundreds are missing.

But nothing is mentioned about Puerto Rico, where a Harvard study shows that thousands died (perhaps as many as 8,500) as a result of Hurricane Maria last year, not the sixty-four of the “official” count.  There are no Congressional investigations planned, and there is no increased influx of Federal funding coming.  Puerto Ricans, US citizens, are on their own. The infrastructure, no-where near repaired, is so fragile that even a minor storm could knock out the island again.

In another infrastructure crisis, the state of Michigan is ending its free bottled water program in Flint, Michigan.  The Governor says that testing shows lead levels below the Federal limits, so the bottled water isn’t needed.  Many residents point out that the lead pipes that created the problem are still there, and water should be provided until they are replaced.  But, Michigan is considering taxing a Nestle bottled water plant across the state.  The plant pumps 400 gallons a minute to fill 4.8 million bottles a day.  The cost for the water: $200/well annual fee.  Maybe a larger tax could be used to fix lead pipes.

In case you missed it, the US and China are arguing about small manmade islands that China is claiming in the South China Sea.  The Chinese have built these sea level reefs into military bases, including an airfield, in order to claim extending national sovereignty over the Sea almost to the Philippines.  The US refuses to recognize the Chinese claims, and has sent both US warships and B-52 Bombers to do right-of-passage exercises in the area.  As long as everyone keeps their fingers off the triggers, it will probably be OK.

And to bring it all back around to the Mueller investigation again, a candidate for the New York State Attorney General office is running on one main issue:  whatever happens in the Federal investigation, she will make sure the State of New York will prosecute the Trump family for their actions. Federal pardons don’t effect state charges.

 

 

 

 

 

 

 

 

Pardon Me

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. – Constitutional Oath for the President

There are few powers as unlimited in the US Constitution as the Presidential power to pardon.  In the complex system of checks and balances established by the Constitutional Convention where each branch has an alternate authority over the other; there is no check against the power of pardon.

John Marshall, who as Chief Justice of the Supreme Court established the power of the judiciary in the United States, defined the pardon power in 1833:

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate….  – John Marshall – US v Wilson

The Constitutional Convention recognized that no matter how structured and balanced the government was, there might be times when the “grace” of a pardon was necessary.  George Washington exercised this power during his Presidency, forgiving the participants in the Whiskey Rebellion.  Most of the Confederate Civil War veterans were pardoned after the Civil War.  Jimmy Carter pardoned many of those who dodged the draft during Vietnam.  And, while many disagreed with President Gerald Ford, his pardon of disgraced President Richard Nixon brought to an end three years of national turmoil.

These pardons had a high purpose, to reunite the nation after some critical event. President Ford described it well; he was trying to end, “…our long national nightmare.”

A second use of the pardon power was to “right a wrong, ”the “private” act that John Marshall described.   Some have been famous:  Eugene Debs the Socialist Presidential candidate of the 1920’s, Patty Hearst the kidnaped heiress turned terrorist.  Some have tried to rectify the wrongs of an earlier time: President Obama pardoned hundreds who were convicted of drug charges in the 1990’s and given lengthy sentences during the “war on drugs.”  And some have been related to the President; President Clinton pardoned his brother Roger who had already completed a jail sentence for cocaine possession and trafficking.  Roger was caught up in a sting that the President himself had authorized as Governor of Arkansas.

There is no check on the pardon power.  If a President is willing to face impeachment and removal from office by the Congress, then he might be able exercise the pardon power in any way he chooses.  At least, that’s the position the President Donald Trump has taken, as he claims to have the power to “pardon himself.”

However, there are two legal precepts that could alter Mr. Trump’s perception. The first is the legal precept that no one can judge their own case.  A pardon requires someone who can give the pardon and someone to accept it; a President pardoning himself is in fact judge and jury.  It is possible a court might be persuaded to void such a pardon.

The second is the legal concept of “corrupt purpose.”  If the President uses the pardon power to prevent testimony against himself, or if a President uses it to avoid personal prosecution, these actions have a corrupt purpose.  Federal jury instructions describe corrupt purpose as:

A person acts “corruptly” if he acts voluntarily and intentionally, with an improper motive of accomplishing either an unlawful result, or a lawful result by some unlawful method or means.

Avoiding or interfering with criminal prosecution is an unlawful result, so even the President’s lawful act of pardoning may be considered corrupt.

Would a court, and ultimately the Supreme Court, rule that a Presidential pardon “doesn’t count?”  If the President were to pardon, say, Paul Manafort, it is unlikely that the Court would stop it.  The President might be held accountable for a corrupt use of his power, either by impeachment and removal, or by criminal indictment after the term in office is complete, but the pardon itself would probably stand.  However, if the President were to try to pardon himself, this would create a crisis not foreseen in the halls of Philadelphia in 1787.

There certainly would be one price that any President that pardoned himself would face: sure impeachment and removal by the Congress.  President Trump should realize this from the response the Republicans in the House and Senate gave.  Senator Chuck Grassley (R-Iowa) maybe put it best:   “If I were President of the United States, and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer.”

 

 

 

Going Back to School

Twelve years of public school, four years of college, a semester of law school, three years to get a Masters, and twenty-six years of teaching history and government: throughout that time I learned and taught that the President of the United States was “immune” from prosecution while in office.

In high school I was more than fixated on the Watergate crisis: I watched the three committees hearings almost gavel to gavel, I read everything I could about it, I memorized the Nixon re-election campaign personnel charts.  The Special Prosecutor’s office of Archibald Cox and Leon Jarworski made it clear then, that they did not think they could charge a President.  In their major indictments, when the Attorney General, the Chief of Staff, the Secretary of Treasury and others were brought to trial, there was an eighth “unnamed and unindicted co-conspirator.”  It was clear who this was:  President of the United States Richard M. Nixon.

The Watergate special prosecutors thought their only option was for the House to impeach the President, and the Senate to hold a  trial and remove him.  I thought it was gospel, or in the legal term:  black letter law.

This week the legal team for President Trump re-asserted the claim that the President, while serving, is outside of the reach of the legal system.  Mayor Giuliani went as far as to say that Trump could have shot (FBI Director) Comey in the Oval Office, and there would be nothing the courts could do. While Guiliani may have been tricked into the old “law school game” of taking a position to its most absurd end, this is where they stand.

Seeing that position, I went back to the actual “black letter law,” the Constitution of the United States.  The US Constitution in Article 1, Section 6 does create limited immunity for members of Congress:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Constitutional convention considered the possibility that members of the government might be subject to the legal system.  In order to keep them from arrests that might be used to prevent them from attending sessions, they were given limited immunity.  It also protected them from legal liability for what they might say in debate.

The authors knew that the sessions of Congress would be limited (four or five months a year in the beginning) and carved out exceptions for major crimes. Members of Congress were clearly NOT above the law.

US Constitution Article 2, Section 4 speaks to the removal of the President:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

This is the only place where possible criminal activity by the President is addressed.  So while the authors of the Constitution clearly thought about criminal immunity for members of Congress (Art.1, §6,) they did not mention it when it came to the President, other than grounds for impeachment.  The President then, clearly is NOT above the law.  The Constitution outlines the process of removing him from office, but it specifically does not grant him criminal immunity.

So where did the “immunity” idea came from?  Like all good controversies in US History, enter Thomas Jefferson and Aaron Burr.

After Burr shot Hamilton (giving drama to the ending of an amazing musical) he headed west across the Appalachians.  He got involved with a group plotting to break away from the United States, and in 1807 was brought to trial for treason.  Burr subpoenaed the President of the United States, Thomas Jefferson, to testify on his behalf at the trial in Richmond.  Chief Justice John Marshall, sitting as a traveling federal judge, presided in the case.

Jefferson refused to appear, citing the pressing duties of the Presidency. Marshall did not enforce nor did he rule on the subpoena (but Burr was acquitted.)  So a precedent was sort of established relieving the President from appearing in court.  Presidents have cited Jefferson and Marshall ever since.

On the other hand, when Richard Nixon refused a subpoena to hand over evidence (tapes) to the Special Prosecutors, the Supreme Court ruled 8-0 requiring release. Nixon might have refused (guaranteeing his impeachment.) Instead, he chose to comply, and was forced to resign within the month.

And when Bill Clinton said he was too busy to testify in a civil case, the Supreme Court unanimously ruled that that he couldn’t hide behind privilege.  He ultimately did testify, and lied, and was impeached (but not convicted or removed.)

So where is the “black letter law” granting the President immunity?  There isn’t any.  There is a series of norms and traditions that respects the President’s time, and treats him with special care.    Presidents deserve the respect that this implies, and Giuliani has a point when he stated that the President should be worried about North Korea not Bob Mueller.  But when it comes to the assertion that he is immune, there is no statute or Constitutional provision they can cite.

To history and government classes from 1978 to 2006, you have my apologies.  I can blame Special Prosecutor Leon Jaworski, but I failed to find the nuance in his position.   And to everyone else:  this President has been nothing if not a “norm and tradition breaker.”   It is no wonder they are worried that this one might be broken.

 

Our Enemy, Canada

US Constitution, Article 1, §8

1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
2. To borrow Money on the credit of the United States;
3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

On December 7^th, 1941, the day that “will live in infamy,” the United States was attacked by Japan.  The next day, President Franklin Roosevelt went to the Congress and asked them to declare war.  It was the last time war was declared by the United States, even though we have fought five major wars since.

The Cold War changed all of that.  When we arrived in the era with the specter of nuclear destruction hovering over every facet of American life, there was no time for the niceties of Congressional judgment.  As a second grader, hiding in the hallway of an elementary school in primary target zone Detroit, I was prepared for a nuclear detonation:  head between my knees, hands over the back of my head, eyes firmly closed to the flash.  It could happen; less than an hour from start to finish.  Congress didn’t have a chance.

Congress, in recognition of the immediacy of war, began to divest its powers to the President.  While they retained “ultimate” authority, it was clear that the US government needed to be able to act quickly to defend itself.  It originally was the war making powers, but later devolved into the power to respond economically if a nation threatened our “security” through its trade practices.

There were two implications in this transfer of power. The first was that while Congress might give immediate decision making away, it retained the ability to reconsider. And second, that since the power was given by Congress, they could take it back.

Section 232 of the Trade Expansion Act of 1962, the same year I was hiding in the hallway, allows the Secretary of Commerce to defend our “national security” industries by controlling tariffs.  Under the terms of this section, the Secretary declares that an industry, vital to our national security, needs to be protected.  He can then set a higher tariff (tax on imports) on competing goods from other countries.

Last week, Secretary of Commerce Wilbur Ross declared that Canada, yes Canada, was a danger to US national security because of the competition of Canadian steel and aluminum with US products.  He instituted a 25% tariff on Canadian steel, and a 10% tariff on Canadian aluminum.

Since Franklin Roosevelt declared the “day of infamy;” for the purposes of national security Canadian steel and aluminum production was considered part of the US production.  It made sense, our “real” national security was tied to Canada; during the Cold War, it was a string of US radar bases, the DEW line (distant early warning) in Canada that kept us aware of the Soviet missile actions.  In World War II and every war since, Canadian troops have fought, as Prime Minister Trudeau stated, “…shoulder to shoulder” with US troops. They have been our truest ally.  But now they’re not.

This isn’t really about national security; it’s about leverage.  Secretary Ross is in negotiations with Canada and Mexico over NAFTA (North American Free Trade Agreement.)  President Trump spent his campaign railing against NAFTA (at least in part because it was negotiated by his opponent’s husband) and is set on making dramatic changes.  Canada and Mexico were willing to come to the table, but aren’t moving as quickly as Ross wants.

And the President claims that the US steel industry will have a rebirth, much like the coal industry.  It was a campaign promise, as unlikely as it is to occur.

So it’s about money and politics, not security.

The consequences are serious.  First we are in the process of alienating one of our firmest allies.  We have completely changed the rules of our relationship, without notice or seeming cause.  It has already strained our relationship, and real damage is not far away.

Second the costs of tariffs aren’t borne by the producers, but by the consumers.  In real terms, “We the People, of the United States,”  will pay the cost of these tariffs, through higher prices in construction and vehicles and beer cans and all the other products made with aluminum and steel.

And where is Congress?  A clear majority of both the House and Senate are opposed to these tariffs.  Will Congress take their Constitutional authority back? If they did, perhaps they might take a few more back as well, including their control of America going to war. But don’t hold your breath.  We are more likely to go to war…with Canada.

 

 

 

 

 

Trust but Verify

In the 1980’s, President Ronald Reagan drove the Soviet Union to the nuclear bargaining table by outspending them on weapons.  The United States was spending 6% of its GDP  (gross domestic product) on defense, to match it, the Soviets were forced to spend almost 20% of theirs.  Those of the right age will remember the “Star Wars” defense, a satellite in space that could launch rockets at enemy missiles and destroy them above the atmosphere. The US never completed “Star Wars” to our knowledge, but the effort forced the Soviets to spend their rubles to keep up.   It was an untenable position that drove them to negotiate.  It ultimately was a major cause of the collapse of the Soviet Union.

In the negotiations, which resulted in the INF (Intermediate Range Nuclear Forces) treaty and the groundwork for START  (Strategic Arms Reduction Treaty) many Americans were fearful that the Soviets could not be trusted: that they would sign the treaties but secretly continue to develop the banned weapons.  To these concerns, Reagan responded with an old Russian proverb, “Doveryai, no proveryai,”  trust but verify.

From the many essays in “Trump World” it should be clear that I am not a Donald Trump fan.  But I am an American, and however I feel about our current President I would like to see him succeed in his dealings with North Korea.  To him I say “doveryai, no proveryai.”  The North Koreans have a long history of faithless bargaining, agreeing to many things at the table, but continuing in secret with the development of their nuclear and ballistic missile programs.  Presidents Clinton, Bush, and Obama have all hoped for a truthful North Korean response, and have all been let down.

It isn’t that they didn’t know.  And it isn’t that they didn’t plan for North Korean subterfuge.  They made these treaties in the hope that North Korea would follow through and normalize their relations with the world, but in full knowledge that it was a hope and not a surety.  Clinton, Bush and Obama all believed in “Doveryai, no proveryai.”

And now, through what feels like a series of seat of your pants maneuvers, the “Great Deal-maker” is planning to sit at the table with the “Supreme Leader” of North Korea. Perhaps it was the “big stick” strategy that the President has employed, threatening “fire and fury” if the North Koreans won’t give up their nuclear capabilities.  Perhaps it is that North Korea has reach a point where they no longer need to test their nuclear tipped ballistic missiles, and can easily give up their testing facilities without losing their arsenal.

Or perhaps, just maybe, the Supreme Leader, spending 22% of his nation’s GDP on defense, has decided it’s time to allow his people to stop starving and to share in the economic development that his neighbors have enjoyed.  Perhaps, by Trump allowing Kim to sit at the “big boy table” of world diplomacy; Kim will be willing to bring his country into the economic world where all of the nations around him:  Japan, South Korea, China, and Taiwan; are enjoying great prosperity and a high standard of living for all their people.

President Trump has allowed expectations to rise exponentially.  He has violated the rules of diplomacy, giving North Korea the prize of a summit with the leader of the free world, without a price.  Trump needs this summit, and he needs it to succeed.  He sees this as a way to prevent a Democrat takeover of Congress in the fall, and he may really see it as an advance in world peace.  I hope he earns a Nobel Prize, not by having the meeting, but by making real progress in denuclearizing the peninsula.

So to the Trump negotiating team: “Doveryai, no proveryai.”  Don’t get in too much of a hurry, estimates are that it would take fifteen years to establish a verification program in North Korea that would really know whether they are disarming or not.  Doveryai, no proveryai:  we didn’t believe the facts of UN’s International Atomic Energy Agency in 2002, and we invaded Iraq on false information.  Some of the folks who pushed for that invasion are members of your team, including the National Security Advisor.  Don’t get pushed into failure in negotiations, in order to hurry along and start a war.

And to the American people: “Doveryai, no proveryai.”  We know how badly the President wants and needs this effort to succeed.  While we wish him luck, we also know that he is the master of “relative truth” and “fake news.”  Whatever the perceived or published outcome of a Singapore summit, we must trust but verify too.

 

Ain’t That America?

Pink Houses by John Mellencamp

A mother leaves Honduras. The violence is too great; she fears that her twelve-year old boy will be forced into the gangs; she fears even more what might happen to her fourteen year old daughter.  She decides to take the dangerous trip through Mexico; open trucks, packed railroad cars, dusty roads, bribes and smugglers.  Her goal is to reach the Estados Unidos, the United States, a nation that offers opportunity for her, and safety for her children.

She arrives at the border, and asks for refugee status.  It’s legal to ask to cross the border, and it’s legal to ask for refugee status or asylum. Even if the crossing is considered “illegal” it is a misdemeanor offense.  Like any misdemeanor, it may mean a couple of days in jail, and then a hearing to determine status.

But what of the kids who came with mom?  In the past, they would be kept with their mother, held together, and released with her to await the status hearing.  However, under the new REGULATIONS written by the current Administration (not THE LAW as suggested by some Administration officials) those children are taken away from the parent for the duration of the time the status is in question.  This might be months, or even longer.  The children are placed into US custody, held in detention centers, often thousands of miles from their parents, and ultimately put with foster families.

So this mother from Honduras will lose her children for an extended period of time, regardless of whether she actually committed a crime or not.  She may not even know where her children are taken, and the children may not be able to contact their mother or even their sibling.  This happens with older children, and it also happens with children as young as one.

Is this America?  Is this what America is about, ripping children from their parents at the moment when, for the first time perhaps in years, they are actually safe?  Regardless of your view of the immigration laws, or building walls:  is this what your America is about?

And this is not an accident, or an unintended consequence of law enforcement.  This is an intentional policy of the Department of Homeland Security, a “deterrent” to those who are trying to escape to the Estados Unidos to gain safety and freedom.  Secretaries Session and Nielsen, and Chief of Staff Kelly, have made it clear that they intend to make the price of entry into the United States without a visa, the loss of your child.

“… Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

The New Colossus by Emma Lazarus

We all read the poem in middle school, inscribed on the base of the Statue of Liberty.  We all learned the stories of the immigrants at Ellis Island, who came to start a new life in America.  WE – the government that represents you and me; now opens “the golden door” and then takes the children away.  And we do it not for the safety of the children, not out of legal necessity; we do it send a message to potential refugees.  We are saying don’t come to the Estados Unidos, we will take your children away.

It was in 1999 that the US was last faced with the government publicly determining the fate of a child. Elian Gonzalez was five.  His mother and several others were escaping from Cuba in a rubber boat.  The boat capsized and Elian was found clinging to an inner tube off the Florida coast. He was the only survivor.

Elian was turned over to relatives in Miami, but his father back in Cuba demanded custody.  After months of court battles, both in Florida and Federal courts, it was determined that he would be returned to Cuba.  While in the cold legal world of the courtroom this may have been the correct decision, the picture of the terrified five year old facing the armed might of the US government was burned into our collective memory.

It was Cuba, a nation we have determined is a “bad” place.  At that time, we had a “feet dry” policy:  if you could get from Cuba and have “feet dry” on US soil, you were admitted to the country.  The US wanted to show that folks were fleeing Communism, it was in “our interest” to show folks in rubber boats desperately crossing the Florida Straits.

But we’ve deemed it’s not in our interest to have folks flee the gang violence of Honduras.  It’s not in our interest for them to risk the smugglers, the “human traffickers,” and the perils of a thousand mile trek in the open, to reach our “golden door.”  So we punish them for trying.  We take away their children.

Ain’t that America?