Impeachment and other crimes
ROGER FITCH ESQ • MONDAY, JANUARY 13, 2020
What about all the other impeachable offences? ... No immunity for impeachment crimes ... Trump remains unchastened ... Fair elections cauterised by the Supreme Court ... War criminals to the rescue ... Judgeships for ideologues and party hacks ... From Roger Fitch in Washington
"There is a mountain of well-known evidence in the public record ... that the current president is a racist, a coward, a bully, a liar, an ignoramus, a hypocrite, a narcissist, and a fool - in short a very bad guy. Yet by design, the Constitution entrusts an impeachment trial to the Senate, not to a jury selected for its impartiality ... If such Senators are capable of putting aside their longstanding views of the president's character to focus on whether he committed treason, bribery, or other high crimes or misdemeanours - as the Constitution assumes they are - then surely they are capable of the much easier task of setting aside any bad-guy inference that propensity evidence might engender."
- Law Prof Michael Dorf dismissing the danger Trump could be convicted for the wrong reasons.
There's gangster government in Washington, with a one-man mob taking over a major political party; even so, Donald Trump has received a setback.
In December, the House of Reps finally confronted - albeit gingerly - the brazen criminality of the US president, a man whose "stench is slowly seeping into every corner of government".
Remarkably, only two articles of impeachment were adopted, with the Democrat-controlled house impeaching Mr Trump for abuse of power (L'Affaire Ukrainienne) and obstruction of congress.
There were so many impeachable offences to choose from, a veritable A-to-Z. The articles the house adopted didn't include the Mueller Report findings (e.g. an important obstruction incident), or Trump's response to Russian interference in the 2016 election. Flagrant personal corruption was also missing.
In a letter to Speaker Pelosi, constitutional lawyers Bruce Fein and Louis Fisher joined Ralph Nader in listing 12 impeachable offences. Just Security noted Trump's pattern of soliciting foreign interference in US elections. The public interest organisation CREW concentrated on five crimes involved in the Ukraine extortion attempts, the basis for the "abuse of power" charge.
The house impeachment was backed by a 658-page Judiciary Committee report, and also by legal scholars and historians.
The Judiciary Committee produced a memorandum on impeachment law, and one of its lawyer witnesses, Noah Feldman, later elaborated on his testimony, as well as on Donald Trump.
Just before the successful vote on the impeachment articles, Mr Trump sent a bizarre letter to Speaker Pelosi, abusing her and the Democrat House of Representatives for having the effrontery to seek his impeachment. The Washington Post fact-checker had a field-day with Trump's six-pages of persecution mania.
As Dan Froomkin complained, it still wasn't enough to make the media question Trump's mental state (a few did), but the media did notice the shameful depths reached by Trump's Republican house supporters.
Pelosi: effrontery
After the house vote and media impeachment post-mortems, the NY Times and Just Security published damning new details of the Ukraine shakedown, provoking renewed Democrat demands for witnesses at Trump's senate trial, at which there is now a tantalising prospect of John Bolton's testimony.
It's some comfort that, even if he escapes conviction in the senate, the impeachment itself should prevent Trump later being pardoned for his crimes.
Trump meanwhile remains unchastened. He's stepped up fund-raisers, bringing along two of his pardoned war criminals, while glorifying another, the odious Eddie Gallagher: perhaps a war crimes exception to pardons is needed.
Historians note a curious resemblance between Trump's 2020 troubles and the attempted removal of another corrupt president, James Buchanan. That political controversy also played out before a divided congress, but with a Republican house and Democrat senate - in 1860.
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It shouldn't surprise us if an acquitted Trump wins re-election next November. US elections are badly damaged, and may never recover from the supreme court's 2013 decision in Shelby County v Holder rendering inoperable the most important enforcement section of the 1965 Voting Rights Act, and the 2019 Rucho case that made partisan gerrymanders non-justiciable under the federal constitution.
To this must be added the court's 2010 Citizens United decision that lifted the limits on election spending, with horrifying consequences.
The result is clear: in partisan-gerrymandered voting districts, elections are now turbocharged with dark money, and with no VRA pre-clearance provisions to prevent it, votes are suppressed and elections rigged, as a new house committee report confirms.
Republicans are still dreaming up new ways to stop Democrat-disposed citizens - particularly students - from voting. Some states even have laws requiring Republicans to be first on the ballot.
As the Guardian observed, America is a democracy, so why does it deny millions the vote, e.g. through purges?
Republicans managed to purge 17 million voters from the US election rolls between 2016 and 2018. Now, emboldened by Husted, a 2018 supreme court decision upholding Ohio's voter registration purges, Republican-controlled states such as Georgia are openly eliminating hundreds of thousands of voter registrations ahead of the 2020 elections.
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Trump judge Chad Readler
Aside from election issues (e.g. partisan gerrymandering, where the conservative supreme court majority has effectively abdicated its constitutional oversight), there may be more ideological frontiers crossed during this term of the court, where the docket looks more like a government agenda.
Mischief could occur, whether it be inconsistent application of content-based first amendment rights, resurrection of long-dead conservative precedents, or newly-invented presidential privileges (respecting, for instance, presidential subpoenas and financial records). Linda Greenhouse commented on the Trump-infected matters here and here.
Lower courts are meanwhile still being packed. The most appalling Trump judges are the 43-plus placed on appellate courts with rubber-stamp, party-line senate approval and, for the first time in modern senate practice, an end to opposition input. Trump's appointments have now "flipped" three of the 12 circuits.
There's a blog recording the disturbing court opinions (mostly dissents) of Trump's new judges, with an interactive tool to track the havoc they're wreaking. A recent example is the 5th circuit ruling partly upholding a Texas federal court's "off-the-wall" decision that the entire ACA (Obamacare) became unconstitutional when an individual tax it contained was removed. A Trump circuit judge made the difference.
One of the new appeals judges is DoJ lawyer Chad Readler, an acting assistant AG who agreed to sign the Trump administration's shabby brief attacking the constitutionality of the ACA in the case above, after career Justice Department lawyers declined to do so. Readler now has a lifetime job on the 6th circuit bench.
Judge Readler's judicial elevation is strangely reminiscent of those historically received by other politically-helpful assistant AGs: Jay Bybee, who was appointed by George Bush to the 9th circuit following his creative opinion that CIA torture was perfectly legal, and David J Barron, given a 1st circuit judgeship soon after deciding Barack Obama's due process-free drone assassinations of citizens were somehow lawful.
