arr, Barr, black sheep
ROGER FITCH ESQ • FRIDAY, OCTOBER 25, 2019
Impeachment ... Washington's cast of villains ... William Barr joined to Trump at the hip ... The politication of the Department of Justice ... The president's taxes ... His claims of immunity ... The odious consigliere Rudolph Giuliani ... 150 judicial appointments to do Republican Party bidding ... SCOTUS rallies to partisan causes ... Roger Fitch reports from a strife-torn nation
Throughout US government departments, traditional political pillaging and looting is being carried out by a record number of industry lobbyists and special interest placemen, but the public service, the real Deep State, is rebelling.
The central crime scene is the White House: America is being ransacked by a president who may ignore his own sacking at the next election, if he lasts that long.
Trump rarely acts alone, however. The dramatis personae in this crime noir can be grouped as follows:
First, the president. Before he was elected, Donald Trump was mostly known as a serial bankrupt and shady businessman, and/or an entertainer thrown up by popular culture. After 1000 days in office, he's earned additional media epithets: rotten, vulgar, habitual criminal, international mobster, and (after George W Bush) worst president ever.
Daily, his behaviour becomes more shameless, e.g, selecting his own resort for the next meeting of the G-7, a violation of both the foreign and domestic emoluments clauses in the Constitution, a move that so alarmed Trump's allies that he backed out of the deal. Meanwhile, "ghost-bookings" at Trump properties provide an easy and efficient medium for ingratiation, or as they say here, "paying to play".
Third, his cabinet. Especially conspicuous: Attorney General William Barr. Like John Mitchell, Ed Meese and the frightful Alberto Gonzales before him, Barr is seen as a duplicitous AG paired with a devious president, lending Justice Department aid to the partisan follies and vendettas of a Republican leader, in order to kneecap the Democrat opposition (as George Bush père's AG, Barr arranged the Iran-Contra pardons).
Barr has meddled in Britain, Australia and Italy, to further Trump's 2016 election conspiracy theories; he's now gone so far as to start a criminal investigation with the DoJ effectively investigating itself for starting an investigation that led to the Mueller Report (co-incidentally, the grand jury evidence that formed the basis of that report has just been ordered released to congressional investigators).
Curiously, Barr saw nothing worth investigating in the Biden-based Affaire Ukrainienne; his Justice Department found Trump's request for dirt on a political opponent was not a "thing of value", despite DoJ precedents to the contrary.
The Justice Department is now fully politicised, intervening on Donald Trump's behalf in several lawsuits, though inconsistently, depending on who's opposing the president.
Barr: a duplicitious meddler & fixer
In the case of subpoenas by two house committees, DoJ argued that the subpoenas lack a "legitimate legislative purpose" (i.e, aren't tied to pending legislation), and that congress should leave investigations of presidential conduct to prosecutors.
Then, when NY State prosecutors subpoenaed Trump's tax returns in connection with the investigation of hush money payments, DoJ claimed that sitting presidents couldn't be investigated by a prosecutor, for any reason, an argument never before advanced, and ultimately rejected by the federal court where the matter was contested.
On appeal, Trump's lawyer asserted that his client couldn't be investigated or prosecuted even should he (in Trump's words) "stand in the middle of Fifth Avenue and shoot somebody".
As for personal subpoenas, under two Nixon cases - one involving a Judge Nixon - executive branch officials must comply with congressional subpoenas; the White House has no lawful means to prevent their testimony. Steve Vladeck has more on executive privilege and subpoenas.
The president has meanwhile lost a suit to block the congressional subpoena for tax returns held by his accountants, and independently-obtained tax documents have already exposed probable frauds by Trump.
New York now has a law allowing the state to provide tax returns to congress; the state has also amended double-jeopardy laws so that state prosecutions may be brought against those pardoned for federal crimes.
Trump's favourite impeachment lawyer being himself, it's no surprise he claims to be immune from any criminal process, while maintaining he can't be investigated by congress (reaction here and here). Yet history strongly supports impeachment for behaviour far less dire than Trump's.
Last of the Trump cast: freelance mischief-makers like Rudolph Giuliani. Trump and his AG have flouted all Democrat subpoenas so far, but Giuliani is not even a government employee, and can certainly be forced to testify. One law professor noted that Trump's odious consigliere could be arrested by the Sergeant-at-Arms through a congressional contempt process not requiring DoJ enforcement. The Democrat congress could also jail obstructive government officials through inherent contempt powers.
Giuliani's (alleged) criminal associates were arrested at Dulles Airport as they sought to flee the country. They're charged in Manhattan federal court with campaign law violations involving Ukraine and one of them is already alleging executive privilege. Giuliani is himself said to be under criminal investigation. There's much more to this particular Ukraine scandal.
The constitution says bribery (a defined criminal offence) is impeachable. Trump's actions may also involve "honest services fraud". Even his stonewalling is impeachable. There are many other reasons.
Trump could take down the Republican Party itself; as one journo colourfully put it, Republicans who circle the wagon now may do so around "a stick of lit dynamite". Will Trump have a "Ceausescu moment" at one of his Nuremberg rallies?
It's definitely worse than Watergate.
Giuliani: required to testify
* * *
Appalling lower court judges are settling in, a cohort of 150 judicial appointments that Donald Trump's rubber-stamp senate has imposed on the creaky American republic. Many of them appear to be unabashed agents of Republican party policy; among other things, they are doing irreparable harm through election law subversions that keep their party in power.
The supreme court is now the bigger worry, with its feared support for heretofore unconstitutional manipulations of government and partisan rightwing causes; some even see an existential threat to US democracy. As the court begins to resemble those in Hungary, Poland and Turkey, the question arises whether it needs to be unpacked (more here) by appointing more justices, perhaps many more.
In the term that began in October, cruelty is on the docket and civil rights on the chopping block. Five matters are the focus of attention; these and some others could change the course of history, including the final destruction of the Democrats' signature Voting Rights Act 1965, what's left of it.
Of particular concern are three cases involving employment discrimination related to sexual preference and gender identification in which the Trump administration is defending the employers.
Other cases consider whether, consistent with the US constitution, a state can repeal the insanity defence in a criminal case, or allow non-unanimous juries, while the Espinosa case presents a grave threat to the constitution's first amendment separation of church and state
There will be more to come, perhaps even nullification of climate legislation, as an alarming new study suggests.
Already, the rogue Republican federal judge from Texas, Reed O'Connor, is teeing up a new case, likely to reach the supreme court, that brings together several strands of the Republican culture wars: a ruling that protections for transgender individuals in the ACA (Obamacare) violate "religious freedom".
It was Judge O'Connor who, in an "off-the-wall" decision, declared the ACA, all of it, unconstitutional, and it was also O'Connor who heavily damaged Native American adoptions by striking down the Indian Child Welfare Act.
