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Fox News Judge: Trump Is Destroying Freedom In Portland

Two weeks ago, this column offered a brief history of the freedom of speech in America. The essence of the column was that all public speech is lawful when there is time for more speech to challenge it and that the remedy for hate speech is not censorship, but more speech.

Last week, this column addressed the unconstitutional behavior of federal agents in Portland, Oregon, most of whom are out among peaceful demonstrators interfering with free speech, travel and assembly.

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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 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.

Why My Friend Trump’s Hate Speech Is So Toxic

“Now hatred is by far the Longest pleasure;

“Men love in haste, but they detest at leisure.”

— George Gordon, Lord Byron

When I was an undergraduate at Princeton University during the height of the Vietnam War, surrounded by fellow students who condemned it and even some who left the country to avoid fighting in it, the mantra used by its supporters was, “America, love it or leave it.” In my misguided “Bomb Hanoi” youth, I uttered this phrase, which I now detest.

The phrase itself — with its command of the government’s way or the highway — admits of no dissenting opinions, suggests that all is well and proper here and insinuates that moral norms and cultural values cannot be improved. The phrase itself is un-American.

That era also produced such hate-filled catchphrases as: “Hey, hey, LBJ; how many kids did you kill today?” Those post-JFK and pre-Watergate times were harsh and bitter as the nation was deeply divided over a war we now all know was useless and based on deception and fraud.

We know from the publication of the Pentagon Papers that the incidents President Lyndon B. Johnson claimed justified the war never occurred, and the president and some of his generals regularly lied to the American public about the war.

The lies and deceptions — combined with the military draft and the deaths of 58,000 Americans — produced much hatred. The hatred was for people, rather than ideas. It was generational and ideological. Youth hated age. Long hair hated short hair. Conservatives hated liberals. Many people hated LBJ personally. When President Gerald R. Ford ended the war — though in a colossal defeat — the end produced a great national relief because the national hatred of people was over.

Now, that hatred is back.

I have known President Donald Trump personally since 1986. The private Trump I have known is funny, charming and embracing. That is not the public Trump of today. When he loudly called for four members of Congress — women of color who oppose nearly all his initiatives and who have questioned his fitness for office — to go back to the places from which they came, he unleashed a torrent of hatred.

The “Go back” trope was used by white racists toward African Americans for 100 years, from Reconstruction to the civil rights era, suggesting repulsively that they should go “back” to Africa; never mind their American births. It was uttered by the establishment at my grandfathers and many others who came here from southern Europe as children in the early days of the last century.

“Go back” is a rejection of the nation as a melting pot; a condemnation of one of America’s founding values — E Pluribus Unum (Out of many, one). It implicates a racial or nativist superiority: We were here before you; this is our land, not yours; get out. Nativist hatred is an implication of moral or even legal superiority that has no constitutional justification in American government.

All working in government in America have taken an oath to support the Constitution. The Constitution commands equal protection of the laws by government at all levels. No one is above the laws’ obligations and no one is beneath the laws’ protections. The Constitution not only commands of government both racial neutrality and color blindness, it generally prohibits government officials from making distinctions among people on the basis of immutable characteristics.

So, when the president defies these moral and constitutional norms and tells women of color to “Go back,” he raises a terrifying specter.

The specter is hatred not for ideas he despises but for the people who embrace those ideas. The specter is also a dog whistle to groups around the country that hatred is back in fashion and is acceptable to articulate publicly. Don’t get me wrong. Even though hate speech — speech which expresses hatred for people, as opposed to hatred for ideas — stings and hurts, it is constitutionally protected. The remedy for hate speech is not to silence the hater but to shame him. And the most effective way to do that is with more speech.

But when the hate speech comes from a shameless president, we have a problem.

The problem is that presidential hatred produces division among people and destroys peaceful dialogue. When thousands of people at a Trump rally in North Carolina recently chanted, “Send her back” — a reference to the four congresswomen to whom Trump stated “Go back” — the inescapable image was of a president trying to divide rather than unite.

At first, he welcomed the chants. Then, two days later, he distanced himself from those who chanted. Then, three days after that, he praised the chanters. When a Louisiana police officer tweeted that one of the congresswomen Trump targeted deserved a round — he was referring to a bullet — he and a supportive colleague were fired. And in New York City, hatred for cops has led to group assaults on them, along racial lines.

Hatred is so volatile and destructive that, once unleashed, it takes on a life of its own. It is cover for our deepest and darkest instincts. And it is a cousin to violence, as those Louisiana and Manhattan cops know.

It also captivates our attention. Could that be the president’s wish — that we think about hatred of his targets rather than the testimony of Robert Mueller, who spent two years investigating the president and now has beans to spill?

This business of the hatred of people is so dangerous because to some, as Lord Byron wrote, hatred is perversely pleasing. It gives them shelter in a mob, it lets them hurl venom with anonymity, and it regenerates itself. It must be rejected loudly in all its forms — especially when it comes from the president.

Fox News Judge: Yes, Trump’s Misconduct Is Impeachable

The revelation last weekend by Michigan Republican Congressman Justin Amash that he believes the Mueller Report accuses President Donald Trump of impeachable offenses has ignited firestorms in both major political parties on Capitol Hill. Amash’s argument is simple and essentially unassailable, though his fellow congressional Republicans don’t want to hear it and Democrats don’t know what to do with it.

Here is the backstory.

When special counsel Robert Mueller delivered his report to Attorney General William Barr, it was a 448-page tome that effectively summarized nearly two years of work and nearly two million pages of documents in an effort to establish whether elements of the Russian government interfered with the 2016 presidential election, and, if so, whether the Russians had any American collaborators in the Trump campaign.

The investigation of Russians and potential American collaborators expanded because of personal behavior of President Trump, which was aimed at delaying or derailing Mueller’s investigation. Thus, when the Mueller Report reached Barr’s desk, it was in two volumes — the first was about the Russians and the second was about the president.

Mueller found 127 communications between Trump campaign officials and Russian agentsbetween June 2015 and November 2016 — Trump publicly said there were none — and as a result of those communications, the campaign came to expect to receive “dirt” on Trump’s principal opponent, Hillary Clinton, from the Russians. The dirt arrived in the form of hacked emails, but Mueller and his team were unable to “establish” the existence of a criminal conspiracy between the Russians and the Trump campaign.

Mueller indicted Russians for interference, and he found evidence of a criminal conspiracy, but not enough evidence to prove the conspiracy case to a jury beyond a reasonable doubt.

The second volume of the report addressed 10 instances in which the president himself attempted to interfere with Mueller’s work. Such attempted interference, when done for a corrupt purpose — such as protecting himself or his friends from the reach of the FBI — constitutes obstruction of justice. Here is where the Mueller Report and Barr’s response to it get a bit dicey.

The more serious and clearly criminal of these obstruction events consists in Trump instructing those who worked for him in the White House to put documents containing material falsehoods into government files that were about to be subpoenaed, and instructing the same folks to lie to FBI agents. Mueller did not seek an indictment of the president on these crimes because he knew that Barr, his boss, would not permit one. The reasons Barr has given for not permitting the indictment are legally troublesome; they constitute a very narrow reading of the obstruction of justice statute and a misapplication of Department of Justice policy.

Barr has not permitted Mueller to seek an indictment of Trump because Barr reads the obstruction statute as letting Trump off the hook because he was not charged with conspiracy to collaborate with the Russians — the original crime Mueller was investigating. That view of obstruction — an innocent person cannot legally obstruct an FBI investigation of himself — has been rejected by nearly all law enforcement, including by Barr’s own DOJ prosecutors.

Barr also would not permit an indictment of Trump because of what he says is the general DOJ policy against indicting an incumbent president. But the DOJ policy barring the prosecution of a president allows a sealed and secret indictment of the president and post-presidential prosecution because, contrary to what President Richard Nixon believed, the president is not above the law.

We know that Mueller’s obstruction allegations — which have not been effectively contradicted by the White House — constitute not only crimes but also impeachable offenses. We know that because when Nixon asked John Ehrlichman and H.R. Haldeman, his principal aides, to lie to a grand jury, and when President Bill Clinton asked Betty Currie, his White House personal secretary, to lie to FBI agents, the House of Representatives — either through the House Judiciary Committee by direct vote — approved articles of impeachment against both of them for obstruction of justice.

This is Amash’s argument: The special counsel found evidence of obstruction of justice by the president, and historically presidential obstruction of justice is an impeachable offense. This is a legal narrative, not a political one. But it has heretofore not been articulated publicly by any Republican officeholder, until Amash courageously did so last weekend.

The Nixonian argument that the president can do no wrong was soundly rejected by the lessons of Watergate and Nixon’s reluctant resignation, but it has reared its head again. No serious legal thinker — not even an attorney general bent on protecting the president — can make it with intellectual honesty or a straight face.

On the other side of the congressional aisle are bitterly divided House Democrats. Some of them see Trump’s obstruction of justice as criminal and impeachable, and they add to that his refusal to abide lawful congressional subpoenas. Presidential rejection of congressional subpoenas was also an article of impeachment voted against Nixon.

Most Democratic congressional leadership thinks impeaching a popular president would be fruitless, and might even help Trump solidify his base. These folks have argued that impeachment should not be undertaken, no matter how criminal or impeachable his documented behavior, without a broad bipartisan consensus in support of it.

Has Donald Trump committed impeachable offenses? Even if he has, should the House move toward impeachment? Is the failure to consider impeachment a tacit ratification of Trump’s criminal behavior? Is there a duty to impeach? Is temporary presidential popularity a free pass to avoid the legal consequences of presidential criminal behavior?

Who beside Justin Amash will effectively address these questions?

IMAGE: Rep. Justin Amash (R-MI), the first Republican member of Congress to call for Trump’s impeachment.

Fox News Judge: Barr Shouldn’t Defend Trump’s Obstruction

We know from Special Counsel Robert Mueller’s report that Russian intelligence agents engaged in sophisticated cyber warfare against the United States, and we did very little to resist them. The Russians were physically here. They engaged via email and text with many Americans. They ran popular political rallies. They attempted to alter vote tallies. They received internal polling data from the Trump campaign, with which they communicated 127 times in 16 months.

None of this seems to be causing outrage. Instead, the outrage is around the efforts President Donald Trump personally undertook to interfere with the challenging work of finding out who the Russians were and what they did. Why would he attempt to derail such an investigation? Did then-President Barack Obama know what the Russians were up to? That seems unlikely, since he ardently wished to be succeeded in office by Hillary Clinton, and the Russian efforts were aimed at helping Trump.

But the American intelligence community should have known. It captures all the fiber optic communications of all people in America. This mass suspicionless surveillance is unlawful and unconstitutional, but the leadership of our 60,000-person strong domestic spying apparatus has persuaded every president since George H.W. Bush that all this spying keeps America safe. We now know that it doesn’t. It didn’t find a single Russian spy bent on influencing the election.

Former American spies have been complaining for years that capturing the keystrokes of all people in America 24/7 produces information overload — too much data to sift through when searching for those trying to harm our way of life.

From the Mueller Report, we also know the determination of the attorney general to prevent any criminal charges — no matter the evidence — from being brought against the president for his attempts to impede the investigation.

The credible evidence that Mueller found of Trump’s obstruction was rejected by Barr based on a unique legal theory of the obstruction of justice statute, a theory that even Barr’s own prosecutors have rejected.

The Barr argument goes thusly: In order for a person to obstruct justice, there must be some justice to obstruct. Hence, if the alleged obstructer did not commit the underlying crime being investigated, then his so-called obstruction did not impair justice; it just impaired a fruitless investigation. This sophistry would make the Jesuits proud.

As well, this argument goes, so long as presidential interference in an investigation is grounded in the Constitution and is not “corrupt” — the word in the federal obstruction of justice statute — it is not prosecutable.

The nearly universal view of law enforcement, however, rejects Barr’s narrow view of obstruction and interprets the plain meaning of the federal statute as it was written. Thus, under this view, all corrupt interference or attempted interference with an investigation or judicial proceeding constitutes obstruction. A corrupt purpose is one that seeks personal gain for the obstructer, such as shielding him from the revelation of unpleasant truths.

So, if Trump fired FBI Director James Comey because Trump wanted to be the tallest person in the room or because he had a better director candidate in mind, there is no corrupt purpose. But if he fired Comey to delay or stop the FBI’s acquisition of painful truths about Russia, as he told NBC’s Lester Holt was his purpose, then whether the truths he wants to hide are about unlawful behavior or not, Trump’s purpose is corrupt and his behavior is prosecutable.

As well, if the pre-presidential Trump instructed retired Lt. Gen. Michael Flynn to tell the Russian ambassador that Trump would relax sanctions on Russian banks and oligarchs once in office — as Flynn told Mueller was the case — Trump’s efforts to hide that truth from FBI investigators constitute obstruction. And, if Trump lied to the public about the communications between his campaign and the Trump Organization and the Russians — he said there were none — and he tried to prevent the FBI from learning about the 127 communications, Trump’s purpose is corrupt.

Asking Deputy National Security Adviser K.T. McFarland to put an untruthful document about Flynn’s conversation with the Russian ambassador into a government file that is likely to be subpoenaed and asking White House Counsel Don McGahn to lie to FBI agents are acts of obstruction. They constituted ordering subordinates to commit crimes for a corrupt purpose — shielding Trump from the revelation of unpleasant truths about his behavior.

We know that Attorney General Barr’s own DOJ rejects its boss’ narrow view of obstruction because of an indictment it announced just last week. A federal grand jury in Boston indicted a sitting judge of the Superior Court of Massachusetts for obstruction of justice. Her crime? She allegedly told the ICE agents in her courtroom to arrest a defendant appearing in front of her that the defendant would be released from her custody in the courthouse lobby.

When sheriff’s officers instead released him to the courthouse parking lot, and the defendant escaped, the judge was accused of obstructing justice even though it is legally impossible for her to have committed the underlying crime that ICE was prosecuting — illegal reentry into the U.S. by a once-deported and undocumented immigrant.

 

Fox News Judge Condemns Trump For Obstructions Of Justice

When the Department of Justice designated Robert Mueller as special counsel to take over the FBI investigation of the Trump campaign in May 2017, Mueller’s initial task was to determine if there had been a conspiracy — an illegal agreement — between the campaign and any Russians to receive anything of value.

When former FBI Director James Comey informed Mueller that he believed Trump fired him because he had declined Trump’s order to shut down the investigation of Trump’s campaign and of his former national security advisor, retired Lt. Gen. Michael Flynn, Mueller began to investigate whether the president had unlawfully attempted to obstruct those investigations.

We now know why Trump was so anxious for the FBI to leave Flynn alone.

Flynn was charged and pleaded guilty to lying to the FBI about whether he discussed sanctions in a telephone call with then-Russian ambassador to the United States Sergey Kislyak, before Trump became president. Such a communication could have been unlawful if it interfered with American foreign policy.

So, when Trump learned of the lie, he fired Flynn. Yet in his plea negotiations with Mueller, Flynn revealed why he discussed sanctions with Kislyak — because the pre-presidential Trump asked him to do so. An honest revelation by Trump could have negated Flynn’s prosecution. But the revelation never came.

Last week, Attorney General William Barr released publicly a redacted version of Mueller’s final report. That report concluded that notwithstanding 127 confirmed communications between the campaign and Russians from July 2015 to November 2016 (Trump said there were none), the government could not prove the existence of a conspiracy.

On obstruction, the report concluded that notwithstanding numerous obstructive events engaged in by the president personally, the special counsel would not charge the president and would leave the resolution of obstruction of justice to Congress. Congress, of course, cannot bring criminal charges, but it can impeach.

Trump initially claimed that he had been completely exonerated by Mueller — even though the word “exoneration” and the concept of DOJ exoneration are alien to our legal system. Then, after he learned of the dozen or so documented events of obstruction described in the report, Trump used a barnyard epithet to describe it.

The Constitution prescribes treason, bribery or other high crimes and misdemeanors as the sole bases for impeachment. We know that obstruction of justice constitutes an impeachable offense under the “high crimes and misdemeanors” rubric because both presidents in the modern era who were subject to impeachment proceedings — Richard Nixon and Bill Clinton — were charged with obstructing justice.

Obstruction is the rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That’s because the statute itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.

Thus, if my neighbor tackles me on my way into a courthouse in order to impede a jury from hearing my testimony, and, though delayed, I still make it to the courthouse and testify, then the neighbor is guilty of obstruction because he attempted to impede the work of the jury that was waiting to hear me.

Mueller laid out at least a half-dozen crimes of obstruction committed by Trump — from asking K.T. McFarland to write an untruthful letter about the reason for Flynn’s chat with Kislyak, to asking Corey Lewandowski and then Don McGahn to fire Mueller and McGahn to lie about it, to firing Comey to impede the FBI’s investigations, to dangling a pardon in front of Michael Cohen to stay silent, to ordering his aides to hide and delete records.

The essence of obstruction is deception or diversion — to prevent the government from finding the truth. To Mueller, the issue was not if Trump committed crimes of obstruction. Rather, it was if Trump could be charged successfully with those crimes.

Mueller knew that Barr would block an indictment of Trump because Barr has a personal view of obstruction at odds with the statute itself. Barr’s view requires that the obstructer have done his obstructing in order to impede the investigation or prosecution of a crime that the obstructer himself has committed. Thus, in this narrow view, because Trump did not commit the crime of conspiracy with the Russians, it was legally impossible for Trump to have obstructed the FBI investigation of that crime.

The nearly universal view of law enforcement, however, is that the obstruction statute prohibits all attempted self-serving interference with government investigations or proceedings. Thus, as Georgetown Professor Neal Katyal recently pointed out, former Detroit Mayor Kwame Kilpatrick was convicted of obstruction for interfering with an investigation of his extramarital affair, even though the affair was lawful.

Famously, Martha Stewart was convicted of obstruction of an investigation into her alleged insider trading, even though the insider trading charges against her had been dismissed. And a federal appeals court recently upheld the obstruction conviction of a defendant who suborned perjury in order to impede the prosecution of the sister of a childhood friend.

On obstruction, Barr is wrong.

So, the dilemma for House Democrats now is whether to utilize Mueller’s evidence of obstruction for impeachment. They know from history that impeachment only succeeds if there is a broad, national, bipartisan consensus behind it, no matter the weight of the evidence or presence of sophisticated legal theories.

They might try to generate that consensus by parading Mueller’s witnesses to public hearings, as House Democrats did to Nixon. Yet, when House Republicans did that to Clinton, and then impeached him, they suffered politically.

The president’s job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, indefensible, and condemnable.

IMAGE: A combination photo shows President Donald Trump (L), on February 28, 2017, former White House National Security Advisor Michael Flynn (C), February 13, 2017 and former FBI Director James Comey in Washington U.S. on July 7, 2016. REUTERS/Jim Lo Scalzo/Pool, Carlos Barria, Gary Cameron/File Photo

 

Fox News Judge: Barr’s Four-Page Memo Didn’t ‘Exonerate’ Trump

When Attorney General William Barr released his four-page assessment of Special Counsel Robert Mueller’s 400-page report, I was disappointed at many of my colleagues who immediately jumped on board the “no collusion” and “no obstruction” and “presidential exoneration” bandwagons.

As I write, Barr and his team are scrutinizing the Mueller report for legally required redactions. These include grand jury testimony about people not indicted — referred to by lawyers as 6(e) materials — as well as evidence that is classified, pertains to ongoing investigations or the revelation of which might harm national security.

Mueller impaneled two grand juries, one in Washington, D.C., and the other in Arlington, Virginia. Together they indicted 37 people and entities for violating a variety of federal crimes. Most of those indicted are Russian agents in Russia who have been charged with computer hacking and related crimes in an effort to affect the 2016 presidential election. They will never be tried.

Some of the Americans indicted have pleaded guilty to lying to FBI agents, such as retired Lt. Gen Michael Flynn, Rick Gates and George Papadopoulos. Papadopoulos told me personally that even though he pleaded guilty to lying to the FBI, he did not in fact lie to them. Do the innocent ever plead guilty? Answer: Yes, they do.

This is a dirty little secret of the American justice system. Often, the cost of defending oneself is so burdensome that a guilty plea — if not disabling to one’s profession, such as law or medicine — offers a tolerable and far less expensive way out. In my years as a trial judge in New Jersey, I accepted more than 1,000 guilty pleas. I always asked if the defendant was truly guilty, and the defendants always replied affirmatively. But the guilt of those pleading guilty is often a legal fiction, practiced every day in courthouses around the United States.

Paul Manafort was convicted of financial crimes by a jury and also pleaded guilty to other financial crimes. Roger Stone was indicted for lying to Congress and is scheduled for trial in the fall. Dr. Jerome Corsi, who was interrogated extensively by Mueller’s FBI agents, was threatened with indictment, revealed the threat and was never indicted.

I recount this thumbnail history to remind readers that Mueller delved into many more areas than President Donald Trump’s behavior. Knowing federal prosecutors as I do, I am comfortable suggesting that more people were swept up into this investigation and were not charged with any crimes. Under the law, Barr and his team must be told of all this, but the public has no right to know who these folks are or what they discussed with the FBI.

Now back to Barr’s four-page assessment. The Department of Justice is in the business of investigating crimes and determining if it has sufficient, lawfully acquired evidence to prosecute and to prove guilt beyond a reasonable doubt. The DOJ is not in the business of exoneration. In fact, the word “exoneration” and the concept appear nowhere in the U.S. Code or the Federal Rules of Criminal Procedure. To offer, as Barr has in his letter, that Mueller exonerated Trump is to offer nonsense. Jay Sekulow, one of Trump’s personal lawyers, acknowledged as much publicly last weekend.

In his letter, Barr did not write that Mueller found no evidence of a conspiracy. Conspiracy is an agreement to commit a crime, whether or not that crime is actually committed. This is what the media and the president have been calling collusion. “Collusion” also does not appear in the U.S. Code and does not describe criminal behavior. It was insinuated into our vocabulary by Trump’s television lawyer, former New York City Mayor Rudy Giuliani, after a successful but deceptive word game campaign.

As well, Barr did not write that Mueller found no evidence of obstruction of justice. Obstruction is not a crime that requires completion, only a serious attempt. If I tackle you on your way into a courthouse where you plan to testify against me, so as to impede your testimony, then I have committed obstruction, even if you subsequently give the intended testimony.

The reason for my criticism of the no collusion and no obstruction bandwagon riders is because we know that Mueller must have found some evidence of conspiracy and some evidence of obstruction — just not enough to prove guilt beyond a reasonable doubt. Barr tipped his hand to this when he wrote in his letter that the DOJ could not “establish” these crimes. That’s lawyer-speak for “could not prove them beyond a reasonable doubt.”

If Mueller had found no evidence whatsoever of conspiracy and obstruction, Barr would have said so in his letter. He didn’t. So, will we see whatever evidence Mueller did find?

We also know that, according to some on the Mueller team, the flavor of whatever Mueller found did not come through in Barr’s four-page letter, and some have voiced privately to the media their displeasure. This has caused the president to accuse Mueller’s team of unlawful leaking. That is not necessarily so.

Voicing displeasure is one thing — “wait for the full report to come out and decide for yourself if the Attorney General fairly characterized it” — revealing 6(e) materials is another. The former is protected free speech. The latter could be career-ending.

Where does all this leave us? In the hands of Bill Barr. The House Judiciary Committee wants to see the evidence, which Barr will argue the law requires him to keep secret. Yet, did the president waive his privacy rights when he called for the public revelation of the full Mueller report? A federal judge will soon answer that question, as well as this one: With respect to the president, which is the higher value — privacy or truth?

Fox News Judge: How We Know Mueller Found Evidence Of Conspiracy

Last Sunday afternoon, U.S. Attorney General William Barr released a letter, which he said summarized the report he had received from special counsel Robert Mueller about alleged crimes committed by President Donald Trump. Barr wrote that the president’s exoneration is complete with respect to any conspiracy between the Trump campaign and Russian intelligence to affect the outcome of the 2016 presidential election. He also wrote that though Trump will not be prosecuted by the Department of Justice for obstruction of justice, the special counsel did not exonerate him.This is a head-scratcher.

The head-scratcher is why Barr revealed any ambivalence on the part of anyone in the DOJ on the issue of obstruction of justice when he needn’t have. As well, under the Federal Rules of Criminal Procedure, he shouldn’t have. Those rules, which prohibit the revelation of evidence for and against prosecution of people not actually prosecuted, also prohibit the revelation of the existence of such evidence, as well as any disagreements among prosecutors over the legal significance of the evidence.

The Barr revelation constitutes the same violation of federal rules and DOJ policy that FBI Director James Comey committed when he announced in the summer of 2016 that Hillary Clinton would not be prosecuted for using private email servers to communicate about classified materials and then revealed that the FBI had convincing evidence against her and then revealed what that evidence was.

When the president learned of the Barr summary of the Mueller report, he naturally rejoiced, and then he thoughtlessly asked for the full Mueller report to be made public. That was a mistake.

Here is the back story.

Barr’s four-page summary of Mueller’s 700-page report claims to have characterized fairly Mueller’s principal conclusions. Yet a careful reading between the lines of those four pages reveals lawyerly language that the president does not want to hear analyzed. Though the president will not be charged with conspiracy to receive something of value from the Russians in order to affect the outcome of a political campaign (a felony), Mueller clearly found some evidence of a conspiracy between the Trump campaign and Russian intelligence (probably the 100-plus communications, some in person, between them), but not enough evidence “to establish” the conspiracy — that is, not enough evidence to prove the existence of the conspiracy beyond a reasonable doubt.

We know Mueller found some evidence of such a conspiracy because if he failed to find any evidence, Barr would have said so. He didn’t.

The second conclusion related by Barr is that Mueller found the evidence against Trump of obstruction of justice (interfering, or attempting to interfere, with an FBI investigation for a self-serving purpose) to be equivocal. That means Mueller found there is evidence that the president obstructed or attempted to obstruct justice and there is equally as strong exculpatory evidence or public policy or credibility reasons for not prosecuting, as well.

Both of these conclusions were made known to Barr three weeks ago, but he revealed them last Sunday.

Why would Mueller punt on the obstruction charge? It is not uncommon for prosecutors to view the same facts and the same law and come to different conclusions about whether a crime can be proven beyond a reasonable doubt. In the conspiracy charge, Mueller concluded he could not prove the case beyond a reasonable doubt. On the obstruction charge, he allowed his boss, Barr, to make the decision about whether to prosecute the president. Such a “kicking the case upstairs” is not uncommon in high-profile cases.

Why Barr revealed all this is a mystery, as it will beat the drum for the release of Mueller’s full report and perhaps the evidence on which that report is based so that members of Congress who want to second-guess Mueller or examine for themselves what evidence of conspiracy and obstruction he found may do so.

What’s next? The Barr letter is a summary of the Mueller report. The Mueller report is itself a summary of the millions of pages of raw evidence Mueller and his team accumulated. That raw evidence consists of grand jury transcripts; FBI notes of interrogations of witnesses; transcripts of wiretaps, emails and text messages; prosecutors’ impressions of the quality of their evidence; and more than 1 million pages of campaign and White House documents voluntarily surrendered to Mueller.

If the 700-page summary of the evidence or the trove of raw evidence on which the summary is based are revealed, there will be much in there for Trump’s adversaries to feast upon. It’s a mistake for the president to call for the revelation of anything that he or his lawyers have not seen.

While the political focus shifts to the House Democrats, the legal focus shifts to Manhattan, where federal prosecutors have an ongoing investigation of the president for election finance fraud. And they have a finding by a federal judge that the criminal conspiracy to evade election finance reporting — to which Michael Cohen pleaded guilty and for which the owner of the National Enquirer received a deal — was orchestrated by the president himself.

And the Senate Republicans now want to investigate who in the FBI or the CIA abused their legal authority and started all this. But the intelligence community will do its best to stifle them, just as that community stifled Trump from revealing what materials were seen by the secret Foreign Intelligence Surveillance Court. That is another can of worms the contents of which Trump should not want to be seen.

Senate Rejects Trump Emergency Declaration — As It Must

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” — Chief Justice Charles Evans Hughes (1862-1948)

On Thursday, the United States Senate took a historic vote known as a negation, a statutory procedure whereby Congress nullifies an act of the president. The negation vote is authorized by the National Emergencies Act of 1976, which was written to permit the president to streamline government during an unforeseen crisis.

The act itself fails to define what constitutes an emergency, but the courts — as is their job where a law is ambiguous — have generally defined an emergency as a sudden and imminent threat to life, liberty and property that cannot be addressed by the exercise of ordinary government powers.

When Hurricane Katrina devastated New Orleans, President George W. Bush declared a state of emergency. That declaration enabled him to move government assets and materials to suffering folks without regard to environmental laws, public bidding laws or even local speed limits. But it did not permit him to spend money that Congress had not authorized, nor could he as president exercise any powers that the Constitution delegated to Congress.

President Donald Trump, in his recent declaration of national emergency at the U.S.-Mexico border, ordered the departments of Defense and Homeland Security to spend unused but unauthorized money in their budgets on building a 55-mile steel barrier — “a big, beautiful wall” — along a portion of that border. Because Congress has expressly and explicitly declined to authorize the funds for the construction of such a barrier, we have a constitutional conflict on our hands.

The conflict is more acute than just a difference of opinion. It is an issue for Trump of fidelity to his oath of office. Several of the statutes that Trump will be violating by spending unauthorized money on the border barrier he himself signed into law. In the presidential oath, the president agrees to enforce federal laws “faithfully” — whether he agrees with them or not.

Can the Congress amend the Constitution? Can it cede to the president powers that the Constitution has delegated to Congress? Every time the courts have addressed these questions, they have answered with a resounding NO.

The issue of whether the status of matters at the southern border rises to the level of emergency will soon be decided by a federal court. It will rule if in the present situation there is an A) sudden, B) unanticipated and C) true threat to life, liberty or property that D) cannot be addressed by the ordinary employment of government assets. If a court decides that any of the A through D factors is not present, that is the end of the inquiry; the court will enjoin the enforcement of Trump’s declaration because it does not fit within the definition of an emergency.

But if a court agrees with the president — that the months-long mass movement of migrants from Mexico to Texas is an emergency that cannot be addressed by ordinary means — it must then address the constitutional issues. Here, the law is clear.

Under the Constitution, only Congress gets to decide how money from the federal treasury shall be spent. When the president has asked for funds — here, to condemn private property and build the barrier — and Congress has said no, he cannot legally go out and spend the funds anyway. Some have argued that Congress has given away some of its powers to appropriate funds to the president during prior emergencies. And some have argued that the existence of an emergency gives new powers to the president. Such arguments betray gross ignorance of the Constitution.

This amendment by consent is at the core of President Trump’s argument. He and his Republican colleagues in Congress have argued that Congress has given all presidents since 1976 new powers in emergencies. This is not possible under our system of constitutional government, even if all concerned did look the other way with a wink and a nod. Presidential power comes only from the Constitution, not from Congress.

In an ironic sense, those of us who believe that the Constitution means what it says are grateful to President Trump for teeing up this issue, expecting a judicial injunction. But no member of Congress can be faithful to her or his oath of office and still support Trump’s view of extraconstitutional powers.

The Senate now follows the House in voting to prevent President Trump from getting away with this. The price of him doing so far exceeds the construction costs of a border barrier. When a president exercises extraconstitutional power, he violates his oath to be faithful to the Constitution and he strikes at the core principle of the separation of powers. Such a strike irreparably undermines the basic protection of freedom in America itself.

In this case, the freedom being undermined is the right of the people to a government that obeys its own laws. Emergency does not create presidential power; only the Constitution does.

IMAGE: President Donald Trump leaves the President’s Room of the Senate at the Capitol after he formally signed his cabinet nominations into law, in Washington, D.C., January 20, 2017. REUTERS/J. Scott Applewhite/Pool