Saturday, August 31, 2019

Descent Into Inhumanity

In early August 2019, a form letter was sent out by the Department of Homeland Security (DHS) to a targeted group of non-citizens currently living in the U.S. The letters served as official notification to revoke the special exemption immigration visa status that these recipients are currently under. This program is being completely and immediately shut down, even though there has been no advance announcement or public discussion about such a policy change. The recipients have been given notice to leave the country within 33 days of the mailing date – a chunk of that time already having expired as a result of the bureaucratic mailing process itself.

Who are these dangerous and fearsome targets of this policy change? Mostly children, and their families that have accompanied them, who legally entered the U.S. to receive life-saving medical treatment needed due to their otherwise fatal disease. They include children with such things as cystic fibrosis, heart disease, transplant recipients, and cancer. All would-be fatal conditions except for the care they are receiving, care not available to them in their home country. Care that their doctors say is vitally needed, without which their short-term death is assured.

Take one case that has surfaced in the unfolding news stories relating to this situation. Years ago a seven-year-old girl came to the U.S. from Guatemala, suffering from a very rare enzyme disease certain to kill her. The research hospital affiliated with the University of California-San Francisco invited her to come here to voluntarily participate in a clinical trial being established to find a cure for her disease. Her participation in this group was critical, because given the very rarity of the disease, assembling such a trial group would be very difficult. Fortunately, she was granted legal entry; she came; she participated. Thanks to her contribution, a life-saving treatment (not a cure) was developed. For most of these afflicted children, seeing teenage years is a highly unlikely prospect. However, thanks to this treatment program, she is now 24 years old, recently graduated from college, and thinking about attending graduate school. But to accomplish all of this, she must receive a drug injection on a weekly basis to keep her alive. In thanks for her contribution to health science and helping others to live, she has now been given 33 days to leave the country. 33 days to return to Guatemala, which has no such requisite medical facilities. 33 days not to look forward to the rest of her emerging life, but 33 days to begin her deathwatch. Some may argue that the people on our southern border seeking entrance to the U.S. may or may not be truly in fear for their lives in their home country. There is no such debate about these “33-day people,” Send them home; sentence them to their death.

The DHS visa termination letter not only unilaterally ends this humanitarian visa program, it makes no case-by-case distinction regarding the individuals involved and their respective situations. It further states that there is no appeal to this decision, and thereby no appeal process in place. Upon inquiry from media reporters, DHS cannot even clarify whose idea this was, where it came from, how the decision was reached and by whom, and what supposed objective is to be accomplished. Within the Department, different agencies are pointing fingers at each other as to who was and will be responsible for this program; apparently no one wants to take the heat for this cruelly inhuman decision and non-process.

For several years, we have witnessed our country sink further and further into a sinkhole of national amorality. A sinkhole that has rapidly expanded over these last three years. A sinkhole drawing our citizenry into a daily exercise of hate, anger, and violence toward one another. And just when we want to believe we have finally hit rock bottom, we discover that some unnamed individual, hiding in anonymity, has taken us to yet another new low. This is not an immigration issue, a solution to a national security threat. This is simply meanness for the sake of being mean. It is just exercising power for the sake of power.

We were once the America of hope, of opportunity, of compassion for other human beings, of welcoming arms, of neighbors who looked out for one another. Where has all that gone? I know it still exists in pockets, though increasingly shouted down and hidden in the shadows of our anger. Why are all of our political representatives and religious leaders not standing on the barricades of human decency, reminding us of what is truly important in living our human life. Where are the voices of the citizenry saying that these kinds of actions “are not who we have been, nor who we are, nor who we seek to be.”

Perhaps we thought that separating young children from their families, planting potential seeds of a lifetime of trauma, was bad enough. The bottom of our collective amoral barrel. Apparently it was not. Closing our doors, turning off life supports, deliberately sending sick children home to most assuredly die, is not the America we thought we knew.

©   2019   Randy Bell   

Friday, August 16, 2019

Frontier Justice

America has a panoply of national icons. Those shared images that we believe personify the Nation and its people. They can cover a wide range of themes, including people (e.g. Mt. Rushmore), things (e.g. the Statue of Liberty), and events (e.g. Neil Armstrong’s footprints on the moon). Probably our first national icon was George Washington, “the Father of our Country,” his image showing up in all manners of contexts honoring his dedication and leadership to the Country. From that original icon, the catalog of our treasured imagery has expanded unendingly. These icons tell us about ourselves, and the values and principles we believe in, even though our preferred icons are specific to each of us. Taken together, they can inspire our aspirations and guide us in our decision-making.

In the late 1800s, we added a new icon to our portfolio: the American Cowboy. For years preceding, individuals had banded together to expand the American boundaries westward, some of whom found work in managing cattle herds. But after the Civil War there was a new mass migration from the eastern United States determined to fill in that great expanse of open space called “the Plains,” a vast, minimally inhabited gap in the middle of America. It was an area lying from Canada to Mexico, from just west of the Mississippi River to the Rockies, an arid, often brutal expanse made more feasible for settler occupancy by the installation of the trans-continental railroad and the resulting expansion of national trade.

And so they came, farmers and cowmen eking out a subsistence living from the oft-unforgiving land, while concurrently creating the small, rural frontier towns that still dot the contemporary landscape. Spread over such a broad territory, it was very much a “make it on your own,” self-sufficient life. That included the need to protect one’s self, family, and possessions from those thieving varmints who were hell-bent to take it away from you. Lacking an established local police presence, and a military force spread thinly over too vast an area defending settlers against Indian wars, security had to be achieved by one’s own abilities.

And so it fell to frontier justice. Where a badge was available, fine. But where not, justice was in one’s own hands – hands that held a rifle and a six-gun. The weapons of the hunt also served as the enforcer of law and order, delivering “do what you need to do” ad hoc justice. And so the myth, the icon, of the American Cowboy, was born out of this setting.

The Cowboy was a product of the Great Plains, but was nevertheless adopted by the cities in the East and Far West United States. Thanks to the dime novels and ballad songs of the times, the romanticized image of the independent, solo drifter wandering the plains, accountable to no one, living his life as seen fit, burned its way into the national psyche. Even the “bad guys” were elevated to mythic status.  Billy the Kid, Jesse James, Butch Cassidy and Sundance, the Clanton brothers may have been outside the law, but they bowed to nobody, including the law of Pat Garrett, the Earp brothers, and Wild Bill Hickok. Dodge City,  KS; Tombstone, AZ; and my hometown of Fort Smith on the Arkansas border of the Indian Territory (backdrop for the “True Grit” movies) served as stages for the Cowboy’s performance.

As is often the case with icons, the truth was far less than the myth. Being a Cowboy was typically a low-paid, lonely, unstable, non-family life. And it turned out to have a short timeline. By the early 1900s, “civilization” caught up with the Plains, and the Cowboy gave way to towns, local governments, automobiles, merchants, schools, and churches. Arizona, New Mexico, and the Indian Territory (now Oklahoma) achieved statehood, with all the attendant expectations of civilization.  The frequency of murders and associated mayhem brought calls for an end to the lawlessness and uncontrolled violence. Gradually the rifles went into display cases; the holsters into the drawers – no longer the mandatory fashion accessories.

But if the fact of the Cowboy died, the myth stayed on. The images that had been created from the dime novel became tangible across the country by the Buffalo Bill Cody traveling “Wild West Show.” The advent of moving pictures made Roy Rogers, Tom Mix, Hopalong Cassidy, and William S. Hart box office leaders. Legendary lawman Wyatt Earp retired and went to Hollywood to become a movie advisor, mentoring John Wayne and director John Ford. Zane Grey western novels topped book sales; western art (e.g. Frederick Remington sculptures) gave majesty to the disappearing Cowboy.

The tools of frontier justice disappeared from the streets. Instead, violence returned its focus on the South’s continuing assault on “freed” African-Americans through the mid-20th century, with a Depression Era side trip into gangster violence (Bonnie & Clyde; John Dillinger) and Mafia internal turf wars. Today, the Cowboy of 1870-1900 may be long gone, surviving only in pale imitation of its once self. But the heritage of his history remains implanted in the minds of a substantial number of Americans. The rodeo is an annual event across the country; dude ranches offer simulated fantasy excursions; fans in western clothing dance at western music shows. Far from where the Cowboy called home, the Cowboy legacy lives on. It is a legacy of the independent loner, going his own way, refusing to be told what to do, dispensing justice as he sees it, avenging perceived wrongs at the point of a gun.

Horrifyingly, this legacy is being reborn in modern America. The gun has now resurfaced in our social places, held by those unable to separate old myth from current reality. Funded by the gun manufacturers, promoted by the NRA, protected by vote-seeking politicians, inflamed by made-up claims of racial and ethnic threats, condoned by federal and state leaders (including intentionally divisive rhetoric from the highest and lowest levels of society), and legitimized by overly misguided judicial rulings, guns are now back on the streets of America. The Cowboys are back, reliving their own versions of the Wild West and vigilante justice. We are once again settling our disagreements and fighting off “enemies” with bullets – far more bullets than ever came out of a six-gun – in an increasing carnage of innocents.

To fight this carnage, some politicians and short-term thinkers propose that we all get a gun to protect ourselves, as if flooding the citizenry with guns is going to magically eliminate gun warfare. More guns in the hands of even well-meaning citizens is a recipe for more gun deaths, not less. But what happens when/if here-to-fore victims start shooting back? Will we finally descend into the race/cultural internecine war that white nationalists and Russia have been seeking to provoke?

I will not be getting a gun, even though as a teenager I learned to shoot one quite well. I will not participate in giving credence to insanity. I will not patronize establishments than allow guns on their premises. Nor is it the Moslem immigrant from the Middle East, or the Central American mother and child, that I fear. It is the modern American wanna-be Cowboy, typically male, white, aged 18-30, caught up in learned hatred, that I fear most.

America had its time to play Cowboy long ago, and determined to give it up in favor of community and laws. We need to put the guns back into the drawer – figuratively and factually. Make our streets, schools, businesses, and churches into safe places for gathering, not war zones. Allow our teachers teach, not guard schoolhouse doors. Make politicians’ substantive commitment to responsible gun safety a Priority One litmus test for how we vote. We, and our ancestors,  have worked too long and too hard to reach a still incomplete level of “civilized” to now let that achievement be lost. Our Cowboy past informs us of what was thought and done then, and how we arrived at now. That past does not tell us what our future should be.

Let the legacy die. Enough is Enough. Do Something.

©   2019   Randy Bell     

Thursday, July 25, 2019

Love It Or Leave It

In the early 1970s, America was a deeply divided nation. The 1950s/1960s had seen a national debate about our racial divide, legalized segregation, poverty, and lack of equal opportunity. By 1970, those causes had been subsumed under the weight of the Viet Nam War. The civil rights movement had provoked violent actions from those who saw their social order and way of life being upended. In turn, the anti-war movement provoked violent actions from those who believed that the government had embarked on a morally, politically, and militarily futile endeavor that was destroying the ethical character of the nation.

The war between the greatest military power on earth and a tiny far-away country in southeast Asia fighting its own war for independence and reunification struck many as an unwarranted and disproportionally unequal conflict. The national protest against it had already driven Lyndon Johnson out of the presidency. President Richard Nixon’s “secret plan” to end the war never materialized; by 1970 it was clearly now Nixon’s war. One part of the country, fresh from the unifying memory of WWII, felt an obligation to support the government in this war as a patriotic duty. Others, seeing the war continue to widen into Laos and Cambodia, seeing the growing number of Americans called into service, and seeing the extreme carnage being inflicted on both sides, concluded that this war was unjustified and unwinnable. Getting out was rapidly becoming the new national priority for our military.

As the war increasingly ground to a stalemate, as the optimistic reports from the front became more and more unbelievable, the public gradually turned towards less and less support for the President and his war. As Nixon desperately looked for ways to shore up the increasingly negative public opinion, he came up with a new tactic: define the war as a patriotic duty, and thereby attack the patriotism of the protestors as being un-American. It is an old rhetorical trick: when your rationale and logic in the debate no longer works or stands on its own, then shift gears and attack the character and credibility of your opponent. Skip over the debate question itself, disengage from the discussion, and just convince people that your opponent is personally so badly flawed that his/her argument is thereby inherently wrong.

And so began the drumbeat of the anti-anti-war populous: “America – love it or leave it.” Dissenting against the war, dissenting against the government, failing to support the President, was cast as anti-American conduct. Objecting to point-in-time decisions and actions of the President was un-American and unpatriotic. The war was not wrong; protesting against it was wrong. Disliking what the government was doing somehow meant that one disliked America. If you did not like America – meaning you did not like what the President/government was doing – one should not fight or criticize to try to change it. Rather, just keep your opinions to yourself or go live somewhere else.

In this love-it-or-leave-it climate, America descended into even greater division. Instead of discussing whether continuing the war was justified, or how to properly conduct it, the discussion now became personal: who was the true American and who was the anti-American.

None of us likes to be criticized. No president likes to be criticized. In 1798, President John Adams tried to make it a federal crime (the Alien and Sedition Act) to make false or malicious statements that criticized the president or the government. His effort to stifle dissent ultimately contributed to his reelection defeat, and no president since has tried to silence criticism so overtly through the law. But that has still left the rhetorical devices available for a weak leader to try to use.

Our Freedom of Speech certainly caries the expectation for us to speak responsibly. But Freedom of Speech does not mandate us to speak intelligently, or to simply repeat the prevailing opinions of the day, or to not speak critically of those that serve us in government positions. Criticism of our President comes with the territory; it is not a job for the weak of heart or the insecure or the untested. Our current President has elected to try the same wrap-me-in-the-flag patriotism card with his political opponents. He speaks in variations of “America – love it or leave it.” Accuses his opponents (without substantiation) of “hating America” simply because they hate the policies and decisions he is making. “Send her back” is a contemptable chant from intolerant hearts. “Go back where you came from” is a short trip for someone who is a U.S. citizen.

In the end, Richard Nixon lost his effort to silence his critics over who was the true patriot. The White House tapes made it very clear who were the non-patriots. As the times from 50 years ago repeat themselves in continuing reverberation today, Donald Trump will likely similarly lose the battle over who are today’s true patriots. The litany of his crimes, me-first pursuits, and cronyism exposes his self-serving understanding of patriotism. Loving one’s country is not measured by loving one’s politician or what s/he says.

The ideals of America are perfect; the implementation of these ideals has always been less than perfect. Military and civilian personnel over our history have sacrificed themselves for the right to speak up, to put ideas – however crazy – into the marketplace of the American public debate. Such debate helps us find the best of ideas to accomplish our ideals. Nobody needs to “leave America.” Nobody needs to “go back where they came from.” Everyone needs to stay right here and let the debate over ideas happen. In the meantime, we can skip the non-debate about who is “the true American.” We can call out those who would subvert our right to self-govern through open debate. We should not allow ourselves to become entrapped within someone else’s empty and malicious rhetorical tricks.

©   2019   Randy Bell   

Tuesday, June 18, 2019

Opposing Opposition Research

Dear Donald: Let us try to explain it to you. Yes, most politicians do some form of “opposition research” on their political campaign opponents. They look for some embarrassing personal incident, political misstatement, or questionable decision made, usually from some long-ago time in the opponent’s past – an action that is not appropriate in today’s climate. Then they use that information to either inform a rational debate on an issue, or far more often, use that information in the sleaziest and/or most distorted manner possible to defame their opponent. This element of campaigning has gone on since the first political vote in our Republic, and for better or worse has little chance of ending.

But the doing or receiving of “opposition research” for your campaign is not the issue that has provoked the latest well-deserved criticism of you. We already assume that you would welcome such dirt on a campaign opponent. Rather, it is the SOURCE of the research that is being called into fierce criticism. When you were asked, you stated that “of course” you would be interested in receiving such negative information, even if it came from a foreign source. “Give me a break – that’s the way it works.” And “no,” you saw no reason to call the FBI and report such an offer from a foreign source. And the Director of the FBI who said that is what you actually should do? Your answer was “he is wrong.”

Stated simply, he is not wrong. Your answer was wrong because existing federal law says contributions to American political campaigns from any foreign source – including of money, services, or “things of value” – are prohibited. Prohibited means it is illegal – for both the giver and the receiver. This legal prohibition has been publicly affirmed by the Chairman of the Federal Election Commission. Your answer was wrong because American elections are actions that Americans take towards governing this country, and governing America is not the business of non-Americans. Your answer was wrong because when foreign entities – governments, hired agents, or individual foreign citizens – seek to influence the American electorate, this is an assault against our Constitutional governance. The President of the United States – and every Congressperson and judge – has sworn to protect that Constitution above all else.

Failing to understand the distinction between obtaining opposition research, and it coming from a foreign source, is the universal criticism. To later say that you would “first examine the information to see if it was correct or inappropriate” and then, based on that review, decide whether or not to notify the FBI (“maybe”), does not change the intent or the impact of your words. It is the receipt of the information, not its quality, that is pertinent. Your position is ethically wrong and criminally liable.

Your statements were recorded and broadcast for all to hear. No amount of attempted backtracking and rewording can change them. No efforts at “clarifications” can undo the confirmation that you once again believe that you are above the spirit and fact of our laws, and the enforcement thereof. After two years of Mueller investigations and his findings about Russian influence on our 2016 election, you have clearly learned nothing about your legal and moral obligations regarding the sanctity and integrity of our American elections. Hence your claims of “no collusion” in 2016 have become even more unbelievable given your publicly stated willingness to collude in the future. Which explains your failure of leadership to strengthen protections for such sanctity and integrity going into our 2020 elections.

Your FBI Director was right. You were wrong. It would be nice if, for once, you could just simply acknowledge that. The country’s faith in its leadership deserves that. Then again, we won’t hold our collective breath waiting for it.

©   2019   Randy Bell   

Friday, May 3, 2019

Marching Towards Constitutional Crisis

Let us be clear: Robert Mueller found ample evidence that Donald Trump committed obstruction of justice on numerous occasions. He fully detailed that evidence in his (redacted) report. That he did not then go forward with formally indicting Trump was not because “he could not reach a conclusion” – as claimed by AG William Barr’s misleading “summary memo” of a month ago. Rather, it was solely due to the DOJ’s old internal POLICY (not law or regulation) that – regardless of the crime or evidence thereof – a “sitting president” cannot be indicted. As an employee prosecutor in the Department of Justice, Mueller was obligated to abide by that policy, regardless of his findings. The unavoidable conclusion is that Trump’s conduct – if he were any other common citizen – would most certainly be criminally indictable if he were not the current President.

Concurrently, given his handling and release of the Mueller Report itself, its conclusions, and the undisclosed ongoing criminal investigations still in process, William Barr has lost any remaining shred of credibility regarding his follow-up to Mueller’s investigation. He has made blatant efforts to whitewash the President’s actions, and has misled (and lied to) Congress and the American public regarding his interpretation of, and personal actions regarding, the legal issues and processes involved. Even more significant and damaging, he has shown himself to be unable (or unwilling) to maintain the politically neutral and objective independence of the DOJ and FBI that is so critical to their effective functioning – and so critical to the trust Americans have in their top law enforcement agencies and officials.

The Executive Branch of our government is now being led by people with no respect for either the letter or the spirit of our Constitution, the law, legal process, and precedence. Rather, they act with a consistent arrogance that they are above the law, and the rules do not apply to them. They alone know what is best; they are free to act as they choose. It is an attitude that is the firm belief of the President himself. It is, in turn, a corrosive virus that ensnares and engulfs those ethically lesser individuals who come under the spell of the President’s influence.

Today, lying by government officials is taken as a normal, everyday event. White House and agency officials arbitrarily defy requests to give testimony to legitimate Congressional committees. Lobbyists, industry representatives, and unqualified personnel with minimal-to-no expertise are appointed to hold public offices. As a result of an unambiguous attack on governmental order and restraint, we are now mere steps away from a Constitutional Crisis unprecedented in our national history. Even for a country with a long history of self-serving political argument, we are entering a unique and extremely dangerous time for the very meaning of our always-fragile American democracy.

Meanwhile, for the sake of holding on to their party’s power, Republican Congresspersons sit idly by and say nothing publicly. (This in spite of what they said in 2016 about a potential Trump presidency, and the reality they acknowledge today behind closed doors). They say nothing while ignoring what they said regarding Democratic President Barack Obama and his Attorney General Eric Holder. For a political party that has traditionally claimed to be the “law and order / Constitutional defender,” their hypocrisy rings loud and clear. They say nothing, even as the integrity and coequal role of Congress itself slowly dissipates and slips away. Power not Right, Self-interest not Principle, are the motivators.

Our country was founded by creative and visionary giants who, in spite of their ethical shortcomings and political self-interests, responded to a higher need at a difficult and critical moment of their times. Today, where are the successor statesmen/stateswomen in this moment when they are so badly needed?

“For what shall it profit a man, if he shall gain the whole world, and lose his own soul.”   Jesus

©   2019   Randy Bell     

Friday, March 29, 2019

Mueller And His Investigation

On Friday, March 23, 2019, Robert Mueller finished what he was charged to do, which was a portion – not everything – of a vast, far-reaching series of investigations. He turned over a report recapping what he did, and (perhaps explicitly or implicitly) what he did not do, and what conclusions he formed from that investigation. With the submission of that report, the investigation moved out of his hands.

This report was always destined to be a letdown for its political and mass audiences. Some portion of that audience was hoping to get a secret spy story competing with Hollywood’s best. Others wanted a roll call of lawbreakers – national and international – to be brought to justice at the public docks. Still others were waiting for vindication of their political hero, at long last defeating his antagonists with a vindictive “I told you so.” In the end, none of these scripts worked out as anticipated. So what do we truly know?

1. Only a few DOJ officials have actually seen “The Mueller Report.” The rest of us have seen the “Attorney General Barr” report – Barr’s four-page personal summary of Mueller’s findings. We know what Barr says did/did not happen; we have no substantiated idea what Mueller actually found. Beyond Barr’s four pages, all else is factually unknown. Given that Mueller’s report is reputed to be greater than 300 pages long, it is perhaps a concern that Barr could properly summarize it in just 36 hours after receiving it.

2. The official narrow charge to Robert Mueller was a) to investigate whether Russia operatives interfered with our 2016 election, and if so, b) whether members of the Trump campaign conspired with them to effect that interference. If other areas of wrong-doing were discovered in the course of his investigation, he was free to follow that trail and to refer such matters over to regular DOJ offices for follow-up (as apparently happened with Michael Cohen), but such avenues were not his focus. The exception to this scope was the added question of c) did Donald Trump commit “obstruction of justice” by seeking to undermine, impede, or block Mueller’s pursuit of his investigation.

3. According to the Barr report, Mueller concluded that: a) yes, Russia did interfere. Almost three dozen indictments of Russians confirmed that conclusion; b) no definitive evidence was found that Trump campaign officials criminally conspired with the Russians to commit that interference; c) whether Trump committed “obstruction of justice” was left unanswered – with both yes/no evidence being found, the question was deferred to the Attorney General to decide to answer. Barr  has said no; whether that answer is based on the evidence, or the DOJ’s 1974 internal opinion (now policy, not law) against indicting a sitting president, is not clear. (See previous essay, “Indicting A Sitting President,” March 9, 2019, on this blogsite.)

4. Trump seized upon the Barr report as definitive, and as usual, immediately lied about the findings. Trump correctly noted that Barr’s report exonerated him with about Russian collusion, but he also claimed that it cleared him of obstruction – which it most certainly did not. Barr has said he will not prosecute Trump on that charge, but has not clarified the basis of that decision. (Always playing the victim, Trump went one step further and lied that the entire investigation was illegal, which it most certainly was not.)

5. All of this ambiguity reinforces the need to release Mueller’s full report and supportive evidence, consistent with legitimate concerns of national security and grand jury secrecy. Given Barr’s views of the laws and power applicable to the presidency, as well as his written advance judgement about the investigation, he should have recused himself from its oversight. Coming into the investigation after the fact, appointed by the President being investigated – a President who has consistently demonstrated minimal respect for the law or DOJ/FBI agencies – makes Barr a non-credible interpreter of the Mueller investigation.

6. Congress has requested a copy of the original Muller report and supporting investigative materials, stating that Barr’s summary is inadequate for proper information, assessment, and potential Congressional follow-up. In his confirmation hearing, Barr committed to sharing the full report for “transparency,” consistent with “confidentiality requirements and applicable law.” This release needs to happen. It is reasonable that a review of the extensive background materials will take some time, but “all deliberate speed” should be the priority given the degree of unhelpful speculation that arises out of the silence.

7. The troubling concern from this “conclusion” of the Mueller investigation is the seeming many loose ends and unanswered questions that remain from this process, and therefore what may come next – or need to come next.
- It has been publicly acknowledged that several Trump campaign and/or transition officials (e.g. Flynn, Don Jr., Kushner, Stone) had conversations with Russian officials. If these conversations were so innocuous and non-conspiratorial, then why did so many lie so frequently about them?
- There are several investigations and indictments over Russian interference that are in process or not yet concluded by Mueller (e.g. Flynn, Stone, Butina). What will happen to these, and who will complete these actions? Barr has provided no guidance regarding these outstanding processes.
- Clearly some investigations have been handed off to, or initiated by, various DOJ offices. These cases cover a wide range of issues beyond Mueller’s original narrow charge. It is assumed that these cases will continue, including those with “sitting president” complications. Again, the guidance or decisions will Barr make regarding these legal processes is unknown.
- There are also federal and state investigations and lawsuits regarding the defunct Trump Foundation, Trump Company real estate dealings (tax, insurance and bank fraud), Emolument Clause violations, and campaign finance violations against Trump and others. These also need to run their course. The to-do list remains long.
- What ongoing, or new, investigations are occurring within the various field offices, out of the public view, that we do not even know about?

The most disturbing thing about this end-of-investigation phase, and the assessment thereof, is this: how can a top-level FBI investigation conclude that there was no Trump campaign/Russia collusion, or no obstruction of justice regarding that investigation, yet never have interviewed the key campaign players of Don, Jr., Eric, Ivanka, and Jerod? Or, for that matter, a live interview with Trump himself? Or, since supposedly agents/prosecutors usually interview only witnesses, not the “targets” of an investigation, is a different supposition warranted?

In the meantime, as this follow-up period unfolds, House Democrats should pursue legitimate investigations of potential wrongdoing. However, they need to focus their scope towards truly primary issues, not overreach and scattershot their energies. (The Senate should be doing the same thing, but this will not happen under the blind-eye rule of Mitch McConnell.) In the meantime, Congress should remember that there is a government to run, and a citizenry to serve – all of which has been done very badly the last several years. If Democrats – or much of the country – are looking to remove Trump from being the President, impeachment is not a feasible option (unless some far more damaging and convincing evidence surfaces). It must happen at the 2020 ballot box, and simply running an anti-Trump campaign will not be sufficient to win that election.

We need to deal with facts – both from the past and those still to come – not the speculation. The presidential storm may have paused, but it is far from done. Only one of many investigations has concluded; there are legitimate and necessary other investigations that need to continue. There is still far more to come, and it ain’t over ‘till it’s over. Stay tuned.

©   2019   Randy Bell   

Saturday, March 9, 2019

Indicting A Sitting President

“If the President does it, that means it is not illegal.”
—President Richard Nixon, interview with David Frost, 1977

INTRODUCTION: As criminal investigations continue to swirl around Donald Trump in increasing frequency and scope, the question that arises is whether a sitting president can be criminally indicted. This is not merely a theoretical, law-school discussion. Rather, it looms as the potential next upheaval following the last two years of presidential and governance turmoil.

CONSTITUTIONAL CONTEXT: When our country’s founders met in Philadelphia in the summer of 1787, they realized that an effective central government transcending the authority of the individual thirteen states was truly needed. However, they were only six years out from a costly Revolution to establish a new freedom in America, so a very different form of government was required. It was initially assumed that central power would be vested in a legislature – the Congress. It later emerged that a new and unique office – a “President” – was needed to lead the nation as a whole. To avoid replacing a king with yet another royal position came the idea of our Constitutional “checks and balances.” Three separate governmental branches, each with assigned powers, each serving as a check on each other. In the instance that one branch exceeded its power or failed in its duty, defined remedies would be available to correct the imbalance. If those remedies failed (as regarded the President or Congress), then citizens could make a correction through the ballot box.

EQUAL UNDER THE LAW: Our Founders firmly believed that no citizen should be above another, or receive special treatment or favors under the law. Our Declaration of Independence stated that “all men are created equal.” Over our history, fulfilling that intention of equality to all segments of our citizenry has been a major theme of politics, legislation, legal rulings – and a civil war. While not explicitly stated in the Constitution, it is reasonable to intuit that equality and fair treatment were implicit in the Founders’ view of government officeholders.

IMPEACHMENT – THE POLITICAL SOLUTION: If a President exceeds the designated authority of the office, or fails in performing his/her duties, or commits acts detrimental to the Presidency, then that person can be removed from their office by the process of Impeachment – e.g. a governmental trial.

Article I/Section 2 of the Constitution gives the House of Representatives the sole power to Impeach (make formal charges against) the President. Article II/Section 4 specifies the reasons for impeachment are committing Treason, Bribery, or other High Crimes and Misdemeanors (i.e. “Misconduct”). Specific definitions of these reasons are not provided, provoking one contemporary legal commentator to suggest that these terms mean “whatever Congress decides they mean” in a given impeachment proceeding. Also, these terms do not necessarily have the same standard as a criminal felony trial. A President can be impeached for actions not criminally indictable, and not impeached for indictable actions; these are two parallel but separate actions. Nowhere in the Constitution is “policy differences” given as a basis for impeachment.

Article I/Section 3 gives the Senate the sole power to try an impeachment; a guilty finding requires the assent of 2/3 of the senators. The bar for a finding of guilty does not require the same standard as in a criminal trial. If convicted, the President loses the job to the Vice President. After removal, the ex-President is disqualified from holding any future federal office, and is not protected from subsequent legal procedures applicable to his/her crimes. Rather, the ex-President “shall nevertheless be liable and subject to Indictment, Judgment, and Punishment, according to Law.”

LACK OF STATUTE: The question rises of whether a sitting and unimpeached President is subject to criminal and/or civil proceedings due to his/her actions. The Constitution says nothing explicitly on this question. No single federal or state statute has addressed, nor has a court at any level ruled on, this direct question.

Courts have somewhat accepted the concept of “executive privilege” – the idea that some confidential or sensitive conversations and materials within the Executive branch are implicitly protected from disclosure. Executive Privilege is nowhere in the Constitution, although certain related decisions have been made by the court (e.g. Nixon ordered to turn over the White House tapes to the special prosecutor). However, this protection does not extend to conversations and materials involving criminal actions or deceit (similar to the rules governing attorney-client privilege). Applying this broad concept is difficult, and the Executive, Congress, and Courts often have differing opinions on specific items.

DOJ OPINION: In 1972, the Department of Justice’s Office of Legal Counsel issued an internal opinion that a sitting president cannot be indicted for criminal acts. Nevertheless, s/he could be named an “unindicted conspirator,” particularly when charging a group of conspirators. This Opinion has served as the DOJ’s bedrock operational policy ever since, although it has never been affirmed by Congress or the courts. The Opinion further allowed for indicting a president while in office, but postponing trial until after the president leaves office. This avoids issues of Constitutional separation of powers, as well as avoids Statute of Limitations issues.

DOING THE PRESIDENT’S WORK: The Presidency is a serious and highly demanding job, covering a wide range of responsibilities that affect national and world-wide outcomes. From that perspective, the President does require protection from legal harassment and “trivial” distractions that would hinder his/her performance – a protection that the courts have been willing to grant (up to a point) over the years. The 1972 DOJ Opinion stated, “The proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities … of the Presidency … criminal proceedings against a President in office should not go beyond a point where they could result in so serious a  physical interference with the President’s performance of his official duties that it would amount to an incapacitation … The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”

In this age of knee-jerk lawsuits, subjecting the Presidency to only the most serious of concerns is warranted. But “most serious” is a judgment call. Over the last several decades, we, and our elected politicians, have not shown much capacity to make good, apolitical, subjective judgments about our government.

CONCLUSION: The question of whether a sitting President is immune from indictment for criminal activities committed before or after his/her election is subject to a wide range of unsettled legal opinion. 1) Impeaching a President removes that person from office, but demands no further follow-up political action. 2) “Treason, Bribery, or other High Crimes and Misdemeanors have meaning for Congress to consider in its deliberations, but they are independent of additional separate criminal actions, and may or may not overlap into justifiable criminal charges. 3) The Founders clearly presumed that a person serving as President is legally accountable at law for his/her actions, at some point in time and in some manner.

A President should be charged for crimes of a particularly serious nature. (“No man is above the law.”) Those charges can be prosecuted during the current term of office, or delayed until after, reflecting the seriousness of the crime. There should be no blanket DOJ policy of immunity, versus a policy adequate to meet differing times, needs and criticality.

Donald Trump said during his campaign that he could “walk down 5th Avenue and shoot someone and no one would care.” Presumably a number of people would most definitely care. The idea that a President could commit murder and be exempt from prosecution by virtue of simply holding that office is abhorrent on its face, akin to what we have seen with the dictator of North Korea and the Crown Prince of Saudi Arabia. There needs to be a scalable guide by which to measure and hold accountable a President’s wrong-doing, and new statutes of federal law are needed to clarify this ambiguity.

Yet a note of caution. Donald Trump has divided this country as no other President before him. The zeal to protect him by his supporters, and the zeal to prosecute him by his detractors, should not override carefully thought out legislative and legal decisions. It is the Presidency that is at stake here, not one individual President. The decisions made, and actions taken in this current legal quagmire, will affect not just Donald Trump, but also set precedence for all future Presidents. Given that seriousness, all of us – citizens, Congresspersons, and legal officials – need to set aside our political interests in favor of what is right for our current and future country.

“Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.”
—John Jay, first Chief Justice, writing for the Supreme Court, 1794

©   2019   Randy Bell