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Tag: law

Bolton: White House Counsel Joined In Ukraine Pressure Campaign

Yet another bombshell about Donald Trump’s attempts to pressure Ukraine has dropped, just hours before Republicans prepare to vote to block witnesses and end the impeachment trial.

According to a New York Timereport published on Friday afternoon, former national security adviser John Bolton alleges in his forthcoming book that White House counsel Pat Cipollone witnessed Trump’s attempts to force Ukraine to investigate his political rivals.

Cipollone is currently defending Trump’s conduct with regards to Ukraine in the Senate impeachment trial.

According to guidance from the American Bar Association, if Bolton’s claims are true, Cipollone’s involvement in any meetings surrounding the pressure campaign would constitute a direct conflict of interest that would throw into question his membership on Trump’s impeachment defense team.

“Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client,” the ABA writes in its rules of professional conduct.

Cipollone also plays a major role in the second impeachment charge Trump faces: obstruction of Congress.

In a letter in October, Cipollone told House Speaker Nancy Pelosi and the Democratic committee chairs in charge of the impeachment probe that the Trump White House would not cooperate in their inquiry, an effort that ultimately led the House to impeach Trump for obstruction.

“Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it,” Cipollone wrote in the letter.

The new revelation comes hours before the Senate plans to vote on whether to call witnesses like Bolton in Trump’s impeachment trial.

It is likely Republicans will vote to block witnesses and acquit Trump, even though a number of Republicans admit Trump’s behavior was inappropriate and wrong.

Published with permission of The American Independent Foundation.

George Conway Rips Trump Lawyers’ Arguments To Shreds

Reprinted with permission from Alternet

In the right-wing media bubble, so-called “legal analysis” of President Donald Trump’s impeachment trial often involves mindlessly echoing the assertions of Alan Dershowitz, Jay Sekulow, or former Florida Attorney General Pam Bondi (all of whom are part of Trump’s impeachment defense team). But not everyone on the right has been reciting Trumpian talking points on impeachment, and conservative Never Trump attorney George Conway tears some anti-impeachment arguments to pieces in a scathing Washington Post op-ed.

“The president’s lawyers this week floated their catch-all impeachment defense, one tailor-made for President Trump,” Conway explains. “It is, in essence, that a narcissistic president can do no wrong. Like most of the president’s arguments, it’s erroneous.”

The spouse of White House counselor Kellyanne Conway takes aim at Dershowitz’ assertion that if Trump believed his actions with Ukraine were “in the public interest,” those actions couldn’t be impeachable. That argument, Conway asserts, is “a lie” and an “example of how Trump corrupts all around him.”

“It’s just not true that good motives, when mixed with bad ones, compel acquittal under the law,” Conway writes. “If a politician takes a bribe to do what he thinks would have been best for the public anyway, he still goes to jail. If he’s president, under a Constitution that refers to impeachment specifically for ‘bribery,’ as well (as) other ‘high crimes and misdemeanors,’ he should still be removed.”

Another bogus claim of Trump’s attorneys, according to Conway, is that “abuse of power” — one of the two articles of impeachment he is facing — is not impeachable under the U.S. Constitution.

‘It’s not true, as Dershowitz argued Wednesday, that the Framers’ rejection of ‘maladministration’ as a basis for impeachment means that abuse of power isn’t impeachable,” Conway notes. “The Framers rejected the word ‘maladministration’ because it covered mistakes and incompetence, not because it also could mean abuse of power. In fact, they swapped ‘high crimes and misdemeanors’ into the final document precisely because it does cover such abuse.”

Conway goes on to explain that while U.S. presidents can certainly promote policies they believe are in the country’s best interests, they cannot do corrupt, unethical things in pursuit of those policies.

If a president, Conway points out, “cuts taxes because he has an agreement with a major backer that, in exchange for tax cuts, the backer will fund a huge super PAC to support his reelection, that’s impeachable — because that’s a corrupt quid pro quo for his personal benefit. So, too, if a president conditions another official act — releasing security assistance to a foreign country — on a requirement that the foreign country smear the president’s political opponent. That’s not politics; that’s corruption.”

Trump, Conway adds, “acted with corrupt intent to damage a political opponent.” That opponent, of course, is former Vice President Joe Biden, who Trump asked Ukrainian President Volodymyr Zelensky to investigate during their now-infamous July 25 phone conservation.

Conway wraps up his op-ed by emphasizing that if Senate Republicans “entertain a false reading of the Constitution,” it would “render the impeachment clause a nullity.”

“Should they do that,” Conway warns, “they will have sacrificed their own oaths to protect their own electoral prospects — and the country and the Constitution will have been saddled with a terrible precedent. The Senate will have told Trump that indeed, he can do whatever he wants.”

Dershowitz: Trump Crimes Are Excusable If His Re-election Is ‘In Public Interest’

Donald Trump’s defense lawyer Alan Dershowitz raised eyebrows on Wednesday when he argued that Trump has free reign to cheat in an election if he believes his victory would be in the best interest of the American people.

“If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz said on the Senate floor, during the question-and-answer period of the impeachment trial against Trump.

Dershowitz’s argument got immediate pushback by Rep. Adam Schiff (D-CA), a House impeachment manager, who has been arguing that Trump has to be removed from office because his cheating cuts at the very heart of the Constitutional right to free and fair elections.

“Bear in mind that efforts to cheat in an election are always going to be in proximity to an election,” Schiff said. “So if you say you can’t hold a president accountable in an election year, where they’re trying to cheat in an election, then you are giving them carte blanche.”

Others pointed out that Dershowitz’s argument means that former President Richard Nixon could’ve made the same argument against his impeachment and removal from office for covering up the break-in of the Democratic National Committee office.

“Using Dershowitz’s logic, couldn’t Nixon have justified that both the break-in and the cover-up of Watergate (which were both purely for his political interest) as ‘in the national interest,’ and therefore not impeachable?” Mo Elleithee, a former DNC official who now teaches at Georgetown University, tweeted.

Published with permission of The American Independent Foundation.

Fox News Judge Eviscerates Trump On Impeachment

Reprinted with permission from Alternet

Judge Andrew Napolitano has been one of the political wild cards at Fox News: like his colleague Chris Wallace — but unlike so many others at the right-wing cable news outlet — Napolitano doesn’t see it as his job to reflexively defend everything President Donald Trump says and does. And Napolitano, in an op-ed published on Fox News’ website this week, takes issue with Trump’s assertions that his impeachment trial in the U.S. Senate is a “hoax.”

“His trial is not a charade or a joke or a hoax,” the libertarian judge emphasizes. “It is deadly serious business based on well-established constitutional norms.”

Trump, Napolitano notes, was indicted by the U.S. House of Representatives on two articles of impeachment: one for abuse of power, the other for obstruction of Congress.

“The abuse consists of his efforts to extract a personal political ‘favor’ from the president of Ukraine as a pre-condition to the delivery of $391 million in military aid,” Napolitano notes. “The favor he wanted was an announcement of a Ukrainian investigation of former Vice President Joseph R. Biden and his son, Hunter.”

Napolitano poses a question: “did Trump act criminally?” But he goes on to explain that in the U.S. Constitution, the phrase “high crimes and misdemeanors” as used by the Founder Fathers isn’t actually a reference to criminal law.

“The Constitution prescribes the bases for impeachment as treason, bribery or other high crimes and misdemeanors,” Napolitano points out. “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.”

Napolitano elaborates on his point, writing, “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.”

The judge concludes his op-ed by with an assertion that is seldom expressed at Fox News: there is plenty of “evidence” that Trump committed “high crimes and misdemeanors” as described in the U.S. Constitution.

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

Photo Credit: Gage Skidmore

Trump Impeachment Team Features Fox News Stars

Reprinted with permission from MediaMatters

On January 17, CNN’s Kaitlan Collins and Pamela Brown reported that attorneys Ken Starr, Alan Dershowitz, and Robert Ray are all expected to join President Donald Trump’s legal team for his impeachment trial in the United States Senate. The Washington Post’s Josh Dawsey reported that former Florida Attorney General Pam Bondi will also be joining the team. Combined, Starr, Dershowitz, Bondi, and Ray have made at least 365 weekday Fox News appearances since January 2019. 

Starr is a former independent counsel whose work led to President Bill Clinton’s impeachment. He also was president and chancellor of Baylor University until he was forced to leave the school following harsh criticism of his handling of sexual assaults. Starr has recently provided Fox with reliably pro-Trump analysis of the House hearings and debates around impeachment, accepting that Trump did seek an investigation into his political opponent but refusing to acknowledge wrongdoing because there wasn’t a “corrupt bargain.” Starr had previously said that Trump’s statement of “no quid pro quo” sufficiently “covered himself” from consequences, despite considerable evidence that there was a quid pro quo with Ukrainian security aid and the investigation Trump sought. Starr, who was a Fox News contributor until joining Trump’s legal team, has made at least 125 Fox News appearances since January 2019.

Dershowitz, a Harvard emeritus professor of law and reported sexual predator, has also given Fox News consistently pro-Trump commentary, arguing that impeachment is “unconstitutional” because even if Trump did put “electoral interests before the national interests,” it wouldn’t “even be close to being an impeachable offense.” Dershowitz is being sued by Jeffrey Epstein trafficking victim Virginia Giuffre, who reported Dershowitz for sexual assault. After months of appearing on Fox News without addressing the reports, Dershowitz protested that he had a “perfect, perfect sex life during the relevant period of time” and said that Giuffre is a “sleazy” person. Dershowitz has made at least 110 Fox News appearances since January 2019.

Bondi is the former attorney general of Florida who memorably chose not to sue Trump University in 2016 shortly after then-candidate Trump donated $25,000 to her reelection campaign. She has also provided Fox News with standard pro-Trump commentary, calling impeachment “a sham from the beginning” and attempting to discredit former special counsel Robert Mueller for being associated with “the same attorney who represented one of Clinton’s people.” She also lied that Mueller “found no collusion, no obstruction.” Bondi has made at least 60 appearances on Fox News since January 2019. 

Like Starr, Ray is a former Whitewater independent counsel and special prosecutor against President Clinton. Ray has argued that the Senate should dismiss the articles of impeachment against Trump out of hand because, as Fox host Laura Ingraham said, “There’s no crime here.” Ray has also been cited by Fox hosts to defend the Trump administration against both impeachment and the Mueller report. Ray also dismissed acting White House chief of staff Mick Mulvaney’s admission of a quid pro quo with Ukraine on camera during a press briefing, because “a contentious press briefing is not the place” to have that discussion. Ray has made at least 70 Fox News appearances since January 2019. 

Trump’s New Lawyer Starr Argued Against Privilege Claims

Reprinted with permission from Alternet

One of the attorneys representing President Donald Trump in his impeachment trial will be very familiar to those who remember President Bill Clinton’s impeachment in the late 1990s: former Independent Counsel Kenneth Starr. But in a new video unearthed on Friday, Starr can be seen making arguments during the Clinton impeachment that are quite detrimental now to Trump’s own defense.

Republicans for the Rule of Law, an organization of anti-Trump conservatives, tweeted an old C-SPAN clip on Friday of Starr discussing Clinton and executive privilege. In the clip, a younger Starr told Congress: “The president and his administration asserted three different governmental privileges to conceal relevant information. The privilege assertions were legally baseless in these circumstances. They were inconsistent with the actions of Presidents Carter and Reagan in similar circumstances, and they delayed and impeded the investigation.”

This is particularly awkward because, during the Ukraine scandal, Trump has been forcefully asserting executive privilege and claims to immunity in an effort to stymie the investigators.

Trump, making sweeping and unfounded privilege assertions last year, ordered administration officials to defy subpoenas for testimony and documents issued by House investigators. And on December 18, the U.S. House of Representatives indicted Trump on two articles of impeachment: one for abuse of office, the other for obstruction of Congress. House Speaker Nancy Pelosi gave both of those articles to the Senate this week, thus clearing the way for an impeachment trial.

Starr’s arguments from the Clinton impeachment in the video above apply with even more force now against Trump and in favor of convicting Trump on the obstruction article.

Attorney Neal Katyal, who served as acting solicitor general under President Barack Obama, saw Republicans for the Rule of Law’s tweet of the Starr clip and asserted, “Starr sought to impeach Clinton for abusing executive privilege and obstructing the investigation, and yet, what Trump did was orders of magnitude worse. Not even close.”

Although Starr is now representing Trump, the president had some unkind things to say about him in the past. In 1999, Trump told the New York Times, “Starr’s a freak. I bet he’s got something in his closet.” And that same year, Trump told MSNBC, “I think Ken Starr is a lunatic, I really think that Ken Starr is a disaster. I really think that Ken Starr was terrible.”

IMAGE: Photo by Gage Skidmore via Flickr.

How Justice Ginsburg Plans To Check Court’s Right-Wing Majority

Reprinted with permission from Alternet

When President Bill Clinton nominated Justice Ruth Bader Ginsburg for the U.S. Supreme Court in 1993, the nation’s highest judicial body wasn’t as hard-right as it is now — although President Ronald Reagan and President George H.W. Bush had clearly made the High Court more conservative than it was in the days of the late Chief Justice Earl Warren. The U.S. Supreme Court has moved more and more to the right since the Clinton years, and a January 9 article by CNN legal analyst Joan Biskupic examines Ginsburg’s influence on what is now the Court’s minority wing.

Although Ginsburg is part of the Court’s “liberal minority,” Biskupic explains, the 86-year-old Brooklyn native “has a way of steering the debate on a case.” Ginsburg “regularly asks whether the Supreme Court should even decide the legal issue before it,” Biskupic notes —and “by framing the debate in this way, Ginsburg could limit the five conservative justices from setting new precedent over the dissent of the Court’s four liberals,” according to CNN’s legal analyst.

In a January 7 interview, Ginsburg told CNN, “It’s just instinctive to me: procedure is supposed to serve the people that law exists to serve.”

A major shift occurred on the Supreme Court in 2018, when Justice Anthony Kennedy retired and was replaced by Justice Brett Kavanaugh. While Kennedy, nominated by President Ronald Reagan in 1987, was a right-wing libertarian and a fiscal conservative, he tended to side with Ginsburg on social issues like same-sex marriage and abortion — whereas Kavanaugh is a hardline social conservative along the lines of Justice Clarence Thomas and the late Justice Antonin Scalia. And with Kavanaugh now on the Court, Ginsburg has even less help when it comes to pushing back against the Court’s socially conservative justices.

“With the 2018 retirement of centrist conservative Justice Anthony Kennedy, succeeded by Brett Kavanaugh, the High Court is positioned for more conservative rulings and reversal of precedents from earlier eras,” Biskupic explains. “Over the past year, liberal justices have emphasized at arguments and in opinions the value of past milestones and stability in the law.”

In a 2013 interview, Scalia made it clear that even though he usually disagreed with Ginsburg, he respected her intellect—asserting, “She has done more to shape the law in this field than any other justice on this Court. She will take a lawyer who is making a ridiculous argument and just shake him like a dog with a bone.”

Ginsburg, during her CNN interview earlier this week, said of Scalia, “I wish he had listened to me more often.”

Fox News Judge: Why Trump Must Be Impeached

The rule of law is a cornerstone of American democracy and is integral to the Constitution. It stands for the principles that no person is beneath the laws’ protections. No person is above the laws’ requirements. And the laws apply equally to all people. That is the theory of the rule of law.

In practice, as the power of the federal government has grown almost exponentially since 1789 and the power of the presidency has grown with it, presidents have claimed immunity from the need to comply with the law while in office. They have also claimed immunity from the consequences of the failure to comply with the law.

That immunity claim is predicated upon the belief that if the president committed a criminal offense and was charged and prosecuted while in office, the diversion of his energies to his defense would interfere substantially with his ability to do his job, which could jeopardize national security.

When the Department of Justice looked at the law of presidential prosecutions, it produced three scholarly reports during the Richard Nixon and Bill Clinton impeachment investigations. Two of those reports concluded that no president could be charged or prosecuted while in office.

Those two reports were relied upon by Attorney General William Barr when he brushed aside the findings of special counsel Robert Mueller, who found enough evidence to charge President Donald Trump with obstruction of justice after Trump repeatedly attempted to interfere with Mueller’s investigation by ordering subordinates to lie to FBI investigators or to falsify government documents that investigators sought.

Barr did not address the merits of Mueller’s findings. In Barr’s view, no matter what the president did — even if anyone else who did the same would have been prosecuted — the disruption to the government would not be worth the benefits of a presidential prosecution.

The third scholarly DOJ report concluded that the president is not above the law and that if sufficient evidence of presidential lawbreaking does exist, he ought to be charged. However, the prosecution should be deferred until he leaves office.

All three DOJ reports agreed that if the president’s behavior, though uncharged, nevertheless amounted to “high crimes and misdemeanors,” he should be impeached.

High crimes and misdemeanors is a basis for impeachment, the constitutional remedy for presidential behavior that subverts our democratic institutions. In Trump’s case, we have undisputed evidence that he abused his power by inviting a foreign government to interfere in the 2020 presidential election and then compounded this by directing subordinates to refrain from giving congressionally commanded evidence of his behavior.

It is undisputed that Trump withheld the delivery of the $391 million in military aid to Ukraine that Congress authorized and ordered and that Trump himself signed into law. He said he withheld that aid because he first wanted “a favor” from the president of Ukraine. The favor, requested by others on Trump’s behalf, was the announcement of a Ukrainian government criminal investigation of Trump’s potential political adversary, former Vice President Joe Biden. In the language of the streets, this is a shakedown; it sought to enhance Trump’s personal political needs and bears no relationship to American foreign policy.

That presidential behavior implicates two crimes. One is the federal prohibition on soliciting campaign aid from a foreign government — whether the aid arrives or not. It did not.

The other crime is bribery, which is the exploitation of public duties for personal gain. Bribery consists of the intentional refusal to perform a required public duty — here, releasing the $391 million to Ukraine — until a personal thing of value — here, the announcement of the Ukrainian investigation of Biden — arrives. The crime of bribery is complete when the thing of value is solicited, whether it arrives or not. It did not.

The other crimes implicated by Trump’s behavior took place after he was accused of the first two. Then, he directed his subordinates to disregard congressional subpoenas, lawfully issued and validly served, which sought testimony, documents and electronic records of the president’s behavior.

We know from the impeachment charges recommended by the House Judiciary Committee against Nixon and voted by the House of Representatives against Clinton that obstructing the constitutional duty of Congress is impeachable. We also know from the Roger Clemens case, in which he was prosecuted, and acquitted, for obstruction of Congress by allegedly lying to a House committee, that obstruction can be criminal.

Because Trump declined to participate in the House investigation that resulted in the construction of the articles of impeachment against him — except for his tweets and bluster and the Republicans’ personal attacks on House Democratic committee chairs — the facts underlying the charges against Trump are essentially uncontested.

Everyone who believes in the rule of law should be terrified of a president who thinks and behaves as if it does not apply to him. As the DOJ has stated repeatedly, impeachment is the proper constitutional remedy for that.

James Madison, the author of the Constitution and the Bill of Rights, feared a government that was strong enough to protect the people would become too strong for the people to control. It would use its powers not for the nation’s betterment but its own. When the government fails to control itself, he argued, when the president becomes a law unto himself by violating the laws that pertain to all others, the remedy is impeachment.

The framers’ greatest fear was a president who would unlawfully put his own needs above the nation’s or who would drag a foreign government into our domestic affairs. Trump has tried to do both and threatened to repeat those attempts. That’s why the remedy of impeachment is acutely needed.