Archive: Opinions

I was thinking the other day about whether the current political tsunami concerning the Chest-Thumper-in Chief and Congress would be more informative (and less frustrating and confusing) if there were a few less lawyers involved. They seem to be all elbowing each other to get onto center stage and into the group photo. Of course, in the case of Watergate and Monica-gate, there are a plethora of names involved, too, and we need a program to keep everyone in their proper place, but it all still comes down to legal terms, opinions and precedents.

Even though I don't own a television (I gave it up twenty years ago) I am sure that most of the talking heads on 24/7 television are lawyers. You can bet the good looking news anchors and hosts on these programs haven't the foggiest notion what the lawyers are saying, and we need to take a step back, in the interest of being truly informed, using our 'reading mind' instead of our 'viewing mind', looking at some interesting quotes from the present, and the past, when it comes to the outrageous behavior of certain past and present residents of 1600 Pennsylvania Avenue (and their legal representatives, of course).

Shall we start with the present? Trump's attorneys have consistently pushed to put him beyond the reach of any other institutions in federal or state governments, immune to civil suit, judicial order, investigation or probe. You've probably already heard of one White House lawyer stating that Trump could shoot someone on Fifth Avenue and not be investigated. I think this particular lawyer needs to be investigated by the American Bar Association, as well as brought before the same panel that questioned Brent Cavanaugh.

These attorneys have also argued in court (and in the court of public opinion as television talking heads) that law enforcement can't investigate the president, that he can shut down investigations into his behavior and deeds, or his associates, and have even argued that obstruction laws do not apply to the president. Wouldn't Leonard Garment, Nixon's lawyer, have loved that argument? Apparently the Founding Fathers forgot to put 'arrogance' in the phrase "high crimes and misdemeanors". Not even to mention that the House impeachment inquiry (now official) was invalid without a full vote, according to the President's lawyers..

According to a dean at George Mason University law school, "Mr. Trump has taken the position that Article II powers give him absolute authority. What makes his case different is that he is not even recognizing the legitimacy of countervailing [constitutional] powers...he is deeming them as politically motivated and thus not legitimate...therefore to be obstructed at every turn."

Now, political motivation must be considered in this hyper-ventilating atmosphere, and certainly Alexander Hamilton (accused of being a closet royalist sympathizer) and James Madison (a free-thinker if ever there was one) as they wrote in the Federalist papers to defend and argue for the approval of nine states' legislatures of the Constitution in 1787.

Hamilton advocated inserting 'maladministration' into impeachable offenses, but Madison disapproved, seeing it as too political and making the president too vulnerable to serving at the pleasure of the Senate, essentially a vote of 'no confidence', a la Parliament, and eliminating the separation of powers concept so important to federalist thinking.

In Federalist #65 (please forgive the long, but salient, quote), Hamilton wrote:

"...those offenses which proceed from the public misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political as they relate chiefly to injuries done immediately to the society itself...the prosecution [of such offenses] will seldom fail to agitate the passions of the whole community and to divide it into parties..."

Boy, he saw this one coming, didn't he???

But, the argument here is that there is an inevitable political component to these types of issues, and the political angle will only come legitimately into play 'when and if' (and after) the constitutional criteria for impeachment and trial is met.

Historical view; not 1998, not 1973-4, but 1868. Andrew Johnson was Abraham Lincoln's Democratic pick (how many know of the cross-party choice?) for Vice President in 1864, the only Senator from a Confederate state to remain loyal to the Union (and Lincoln's shrewd choice of maintaining Tennessee's turn to the Union cause). A hard drinking tailor with no formal education, he was an outright racist and arguably a drunkard who loved insulting fellow senators and cabinet members, once even advocating publicly hanging Jefferson Davis, as well as stringing up Representative Thaddeus Stevens of Pennsylvania, a perennial political foe. The New York Times editorialized: "Was there ever such a madman in so high a place as Johnson?" Johnson even compared himself to Jesus Christ. Trump has yet to do this, yet, although some have averred that his bull in the china shop presence in Middle East affairs seems Biblical...he has not denied this claim of the apocalyptic crew.

Johnson in 1866 had threatened to fire any Cabinet member (mainly holdovers from Lincoln) who opposed him (sound familiar?) and Congress responded with the Tenure of Office Act (over a presidential veto). Many consider this act a violation of separation of powers and a congressional abuse of allowed powers over the executive, but it stood at the time without a court challenge. Johnson fired Secretary of War Stanton, and Stanton responded by blockading himself in his office, refusing to leave the building.

The House had had enough, and voted 126-47 for impeachment on eleven articles. Eight of those articles concerned Stanton's firing; one article concerned Johnson issuing a direct order to a general (circumventing the chain of command) and the final two articles concerning his behavior in office: "...disgrace, ridicule, hatred, contempt and reproach..." of Congress.

Senator Edmond Ross, a Republican from Kansas, was the vote that denied the two-thirds majority in the Senate trial, which by the way, that ratio was decided by the Founders to supposedly prevent a purely political/party motivation for conviction. John F. Kennedy wrote of Ross in "Profiles in Courage".

Allen Dershowitz is a well known (among other descriptions) attorney and talking head of Harvard's Law School, and he has stated that obstruction of justice is plainly a 'high crime' but a President cannot commit it by exercising a Constitutional authority to fire or pardon, regardless of motive. Which harks back to Johnson's case, and might even seem to justify certain actions of Trump, while pointing a Constitutional finger of 'high crime' at other actions of Trump as Chief Executive.

Congress's 1868 charge of "disgrace, ridicule, hatred, contempt and reproach" certainly fit the bill of impeachment politically, but even the most low-down senator from either party would have to admit that, at the present moment, minus a 'smoking gun' (a subjective term, under the circumstances, even though much of America is horrified at especially egregious actions in foreign policy) these hardly rise to 'high crime and misdemeanor', or 'public harm' as Hamilton or Madison might have defined it. It's a high bar, and for good reason.

Trump embarrasses the hell out of me, and many, and his defense is frequently a parroting of what he sees and hears on Fox TV (coup, abrogation of an election, etc., all voiced by Sean Hannity, who acts as his de facto attorney and megaphone), not vice versa. The tragedy of his abandonment of the Kurds, the loss of worldwide acclaim as the paragon of liberty and free enterprise, the demise of international approval and emulation, the denigration of true military heroes, the slippery antics of his family members and his general arrogance and even, arguably, his lack of understanding of the Office he holds, may not rise to a level of conviction, though impeachment seems inevitable.

Unless true crime can be uncovered, argued and convincingly presented in trial, there will not be sixty seven senators able or willing to convict (although there apparently are several whose campaigns benefited from some Ukrainian money). His subordinates? Like Nixon's associates, we will see several low-level people go to federal prison for the more obvious and provable crimes. But the Chest-Thumper-in-Chief? He may very well stick around awhile unless more convincing arguments are found to indict and convict. And, crime must be found to preempt and precede mere political considerations, as Madison rightfully, and presciently opined.

Next week: Emotion recognition and the Senate trial televised, while we watch the words and faces of four Republican senators.