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Fox News Judge Promotes Bogus Bias Charge Against Stone Juror

Reprinted with permission from MediaMatters

Fox News senior judicial analyst Andrew Napolitano appeared Tuesday morning on Fox & Friends, boldly declaring that former Trump campaign associate Roger Stone deserves a new trial due to allegedly undisclosed bias of the foreperson of the jury that convicted him — and President Donald Trump himself amplified Napolitano’s message.

There’s just one problem: The story is based on a lie. While right-wing media have been harping on the supposed surprise about the jury foreperson’s political background, it’s really not a surprise at all. At most, one slight new detail could be discovered now — and even that’s not clear, either — after Stone’s lawyers had ample opportunities to bring the whole matter up as some kind of serious issue.

Napolitano said that in light of unearthed tweets by Tomeka Hart, who has publicly revealed herself to be the foreperson of the jury, Judge Amy Berman Jackson has an obligation to reopen her consideration of motions by Stone’s lawyers. (Later in the day, Jackson rejected a motion by Stone’s lawyers to delay his sentencing.)

Later in the morning, Trump tweeted direct quotes from Napolitano:

Trump’s personal attorney Rudy Giuliani, who also played a key role in the recent impeachment saga — and continues to push a proven disinformation campaign against Democratic presidential candidate Joe Biden, with Fox News’ help — also tweeted in approval of Napolitano.

(Interestingly, Napolitano was largely sidelined from Fox News’ coverage of Trump’s impeachment after he openly espoused the view that Trump committed a wrong worthy of impeachment. But for this case right now, he’s back on the president’s good side.)

But as conservative writer and attorney David French explains, this entire attempt at a narrative is based on a false premise: In reality, Hart’s political leanings and activities were clearly known during the jury selection process, and not even Stone’s legal team tried to strike her from the jury pool (emphasis in original):

Hart (identified only as Juror 1261, but identifiable by her statement that she ran for Congress and other biographical details) was questioned by the trial judge and by defense counsel. After first asking questions about Hart’s prior service on a grand jury, the judge asked a series of key questions:

So let’s recap. Stone’s lawyers knew that she was generally familiar with Stone, they knew she ran for Congress, they specifically asked about political bias, and then refused to seek her removal.

French adds a caveat: Based on just the immediately available information, it is not totally clear whether lawyers in the case knew that Hart had written critical tweets about Trump and the Mueller investigation. (The public does not have access to Hart’s submitted jury questionnaire.) But he nevertheless states: “Thus, it’s possible that there were material omissions in her written answers, but again—Stone’s lawyers knew she ran for Congress and they still didn’t initially seek to strike her.”

Stone was convicted on seven charges, including lying to investigators and witness tampering. (Among other things, he had threatened the dog belonging to a cooperating witness, Randy Credico.)

Fox News and other right-wing media have been on a campaign of urging Trump to pardon Stone. Meanwhile, Attorney General Bill Barr intervened in the case to overrule the sentencing recommendations against Stone, resulting in the resignations of four Department of Justice professionals from the case.

Photo Credit: Gage Skidmore

Fox Judge: Guilty Trump Was Acquitted, Not Exonerated

“The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.” — George Orwell, 1984

The Senate trial of President Donald Trump ended not with a bang but a whimper. What different outcome could one expect from a trial without so much as a single witness, a single document, any cross-examination or a defendant respectful enough to show up?

Law students are taught early on that a trial is not a grudge match or an ordeal; it is a search for the truth. Trial lawyers know that cross-examination is the most effective truth-testing tool available to them. But the search for the truth requires witnesses, and when the command from Senate Republican leaders came down that there shall be no witnesses, the truth-telling mission of Trump’s trial was radically transformed into a steamroller of political power.

And in its wake is a Congress ceding power to the presidency, almost as if the states had ratified a constitutional amendment redefining the impeachment language to permit a president to engage in high crimes and misdemeanors so long as he believes that they are in the national interest and so long as his party has an iron-clad grip on the Senate.

When the House of Representatives voted in favor of two articles of impeachment against Trump, it characterized his lawlessness as contempt of Congress and an abuse of power. The contempt of Congress consisted of Trump’s orders to subordinates to disregard congressional subpoenas. Both Republican- and Democratic-controlled Houses of Representatives have deemed such presidential instructions in an impeachment inquiry as impeachable per se.

The abuse allegations address Trump’s solicitation of assistance for his reelection campaign from a foreign government by holding up the release of $391 million in military aid to the same foreign government. These funds were congressionally appropriated and ordered to be paid by legislation that Trump had signed into law.

Federal law prohibits such solicitation as criminal and prohibits government officials from seeking personal favors in return for performing their governmental duties. The latter is bribery.

Because the solicitation that Trump committed was a crime against the government, it is among those referred to when the Constitution was written as a “high” crime. High crimes are a constitutional basis for impeachment, along with bribery and treason.

The evidence that Trump did this is overwhelming and beyond a reasonable doubt, and no one with firsthand knowledge denied it. Numerous government officials recounted that the presidential leverage of $391 million for a personal political favor did occur and the government’s own watchdog concluded that it was indisputably unlawful.

The favor Trump sought was an announcement by the Ukrainian government of the commencement of an investigation of Trump’s potential presidential foe, former Vice President Joe Biden.

While the Senate was hearing House prosecution managers argue their case, and Trump’s lawyers challenging those arguments, The New York Times revealed that John Bolton, Trump’s former national security adviser, had authored an as yet unpublished book demonstrating that the House case against Trump was true. True, because, unlike the senators who shut their eyes and ears at Trump’s trial, Bolton saw for himself the presidential tit-for-tat machinations that the House had alleged and, if proven, were criminal and impeachable.

The Times also revealed the existence of 24 emails sent by Trump aides manifesting indisputably his lawless behavior. But they are secret.

At the same time, two signal events occurred in the trial. The first was an argument by Trump’s lawyers that every president seeking reelection believes his victory will be in the national interest and thus all presidential efforts toward that victory are constitutional and lawful.

This morally bankrupt, intellectually dishonest argument — which effectively resuscitates from history’s graveyard Richard Nixon’s logic that “when the president does it, that means that it is not illegal” because the president is above the law — must have resonated with Senate Republican leaders. They coerced their Senate Republican colleagues into embracing the view that — since the president did not want Bolton to testify or White House emails to be revealed — they must bar all witnesses and documents.

The second signal event was shameful. It was the 51 to 49 Senate vote to bar witnesses and documents from the trial.

Isn’t it odd that a president who clamors for exoneration, who claimed loud and long that he committed no crime and did no wrong, who insisted that his request to the Ukrainian president to seek dirt on Biden in return for American financial assistance was “perfect,” would command the members of his own party to block testimony adverse to him — rather than hear it, cross-examine it, challenge it and thereby obtain the exoneration on the merits that he seeks?

Do innocent people behave this way?

If Trump really believes he did not commit any crimes and any impeachable offenses, why would he orchestrate blocking evidence? And who — having taken an oath to do “impartial justice” — would close their eyes to the truth? How could such a marathon of speeches possibly be considered a trial?

Trump will luxuriate in his victory. But the personal victory for him is a legal assault on the Constitution. The president has taken an oath to preserve, protect and defend the Constitution. Instead, he has trashed it. How? By manipulating Senate Republicans to bar firsthand evidence and keep it from senatorial and public scrutiny, Trump and his Senate collaborators have insulated him and future presidents from the moral and constitutional truism that no president is above the law.

Somewhere, Richard Nixon is smiling.

Fox Judge Sees ‘Ample Evidence’ To Remove Trump

I don’t blame President Donald Trump for his angst and bitterness over his impeachment by the House of Representatives. In his mind, he has done “nothing wrong” and not acted outside the constitutional powers vested in him, and so his impeachment should not have come to pass. He believes that the president can legally extract personal concessions from the recipients of foreign aid, and he also believes that he can legally order his subordinates to ignore congressional subpoenas.

Hence, his public denunciations of his Senate trial as a charade, a joke and a hoax. His trial is not a charade or a joke or a hoax. It is deadly serious business based on well-established constitutional norms.

The House of Representatives — in proceedings in which the president chose not to participate — impeached Trump for abuse of power and contempt of Congress. The abuse consists of his efforts to extract a personal political “favor” from the president of Ukraine as a precondition to the delivery of $391 million in military aid. The favor he wanted was an announcement of a Ukrainian investigation of former Vice President Joseph R. Biden and his son Hunter.

The Government Accountability Office — a nonpartisan entity in the federal government that monitors how the feds spend tax revenue — has concluded that Trump’s request for a favor was a violation of law because only Congress can impose conditions on government expenditures. So, when the president did that, he usurped Congress’ role and acted unlawfully.

But, did he act criminally; and is it constitutionally necessary for the House to have pointed to a specific federal crime committed by the president in order to impeach him and trigger a Senate trial?

Here is the backstory.

The Constitution prescribes the bases for impeachment as treason, bribery or other high crimes and misdemeanors. However, this use of the word “crimes” does not refer to violations of federal criminal statutes. It refers to behavior that is so destructive of the constitutional order that it is the moral equivalent of statutory crimes.

For example, as others have suggested, if the president moved to Russia and ran the executive branch from there, or if he announced that Roman Catholics were unfit for office, he would not have committed any crimes. Yet, surely, these acts would be impeachable because, when done by the president, they are the moral equivalent of crimes and are so far removed from constitutional norms as to be impeachable.

In Trump’s case, though the House chose delicately not to accuse the president of specific crimes, there is enough evidence here to do so. Federal election laws proscribe as criminal the mere solicitation of help for a political campaign from a foreign national or government. There is no dispute that Trump did this. In fact, the case for this is stronger now than it was when the House impeached him last year. Since then, more evidence, which Trump tried to suppress, has come to light.

That evidence consists of administration officials’ emails that were obtained by the media pursuant to the Freedom of Information Act. Those emails demonstrate conclusively that Trump ordered a halt on the release of the $391 million within minutes of his favor request, and the aid sat undistributed until congressional pressure became too much for Trump to bear.

This implicates two other crimes. One is bribery — the refusal to perform a government obligation until a thing of value is delivered, whether the thing of value — here, the announcement of a Ukrainian investigation of the Bidens — arrives or not. The other is contempt of Congress.

If the request for the announcement of an investigation of the Bidens manifested “nothing wrong” as Trump has claimed, why did he whisper it in secret, rather than order it of the Department of Justice?

When the House Select Committee on Intelligence sought the emails unearthed by the press and then sought testimony from their authors, Trump thumbed his nose at the House. Instead of complying with House subpoenas or challenging them in court, Trump’s folks threw them in a drawer. Earlier this week, his lawyers argued that those actions were lawful and that they imposed a burden on the House to seek the aid of the courts in enforcing House subpoenas.

Such an argument puts the cart before the horse. Under the Constitution, the House has “the sole power of impeachment.” The House does not need the approval of the judiciary to obtain evidence of impeachable offenses from executive branch officials.

We know that obstruction of Congress is a crime. Just ask former New York Yankees pitching great Roger Clemens, who was tried for it and acquitted. We also know that obstruction of Congress — by ordering subordinates not to comply with House impeachment subpoenas — is an impeachable offense. We know that because the House Judiciary Committee voted to charge President Richard Nixon with obstruction of Congress when he refused to comply with subpoenas. And the full House voted for an article of impeachment against President Bill Clinton when he refused to surrender subpoenaed evidence.

Where does all this leave us at the outset of Trump’s Senate trial?

It leaves us with valid, lawful, constitutional arguments for Trump’s impeachment that he ought to take seriously. That is, unless he knows he will be acquitted because Republican senators have told him so. Whoever may have whispered that into his ear is unworthy of sitting as a juror and has violated the oath of “impartial justice” and fidelity to the Constitution and the law.

What is required for removal of the president? A demonstration of presidential commission of high crimes and misdemeanors, of which in Trump’s case the evidence is ample and uncontradicted.

Fox Judge Urges Reopening Of Impeachment Probe To Review New Evidence

The party line among many of President Donald Trump’s defenders at Fox News is that the recent impeachment inquiry by House Democrats was flawed from start to finish, but Judge Andrew Napolitano hasn’t been shy about offering critical analysis of Trump during the Ukraine scandal — and according to Napolitano, “newly acquired evidence” is reason enough for Democrats to “reopen the impeachment” inquiry.

Appearing on Fox News’ America’s Newsroom on Monday, Napolitano asserted, “If I were a Democrat in the House, I would be moving to reopen the impeachment on the basis of newly acquired evidence — which are these new e-mails of people getting instructions directly from the president to hold up on the sending of the (military) funds  (to Ukraine). That would justify holding on to the articles of impeachment, because there’s new evidence, perhaps new articles.”

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Napolitano added, “If I were a Republican in the Senate, I would go about my business as if there had been no articles of impeachment — because until those articles of impeachment come over to the Senate, there is nothing for the Senate to do.”

In a full House vote on December 18, Trump was indicated on two articles of impeachment: one for abuse of power, and one for obstruction of Congress. But House Speaker Nancy Pelosi has yet to send them to the Senate, fearing that Senate Majority Leader Mitch McConnell will not seriously evaluate the evidence. McConnell has asserted that he does not consider himself an “impartial juror” in the Ukraine scandal.