Wednesday, February 12, 2020

Impeachment Recap And Reflections

At 4:32pm on Wednesday, 2/5/2020, the Constitution of the United States was rushed to the Library of Congress and placed in intensive care, suffering from significant assaults against its Principles and Values. Concurrently, the spirits of the 39 Founders who signed the Constitution gathered in an impromptu vigil, waiting to see whether or not the Patient would survive its injuries. The outcome for the Republic is in doubt.

There is much to take away from these past five months of Impeachment and Trial.  The specific takeaways will vary considerably depending on the lens of our varying perspectives through which we view these events, shaped by our widely varying life experiences. In many respects, our concerns are not over what was specifically said and done. Instead, our greater concerns should likely focus more around issues of “rules of law and rules of order,” new precedents being established, and our basic assumptions about our government’s commitment and responsiveness to “We, the People.” Space limitations of this essay does not allow for in-depth discussion of these events; that will be left to the historians. Meanwhile, perhaps the following reflections may be helpful.

1. It is a violation of federal law to solicit or receive assistance from foreign entities for a political campaign. All discussion starts with that legal reality. Donald Trump admitted in the notes of his July 2019 call to the new President of Ukraine that he did solicit such election help by demanding a foreign investigation of his primary potential election rival. [Such admission was also consistent with his public call for assistance to Russia in 2016 (“Russia if you are listening…”), his interview with George Stephanopoulos in June 2019 expressing his willingness to accept political dirt from foreign entities (“I would look at it and decide whether to use it…”), and his 2019 request of China made on the lawn of the White House inviting them to “also look into corruption by the Bidens.”] These public/confessed actions broke the law. He reinforced his demands by acts of bribery/coercion in holding up a White House show-of-support meeting, along with illegally (per the General Accounting Office) holding up $250M+ of military aid appropriated by Congress. These actions constituted Impeachment Article 1.

2. The violation of the foreign interference law was not an accidental, one-time event, but was a deliberate campaign authorized and orchestrated by Trump that went on for nearly a year. It involved numerous employees and non-employees of the government to either obtain the Biden investigations, and/or to hide these secretive efforts. As was said, “everybody was in the loop” –cabinet secretaries, department heads, and outside players. It significantly included Devin Nunes (House Intel Committee ranking Republican) and Pat Cipollone (lead counsel on Trump’s defense team) – two significant conflicts of interest. Keeping these secrets hidden included a total refusal to comply with any legal Congressional subpoenas for testimony by participants, along with relevant documents. The defense argued that “there was no first-hand testimony about the president’s actions,” yet Trump refused to let firsthand witnesses testify. If Trump was truly innocent of these charges, why did he not flood the Senate with witness testimony and documents that would rebut the prosecution and prove his case? This, blanket refusal to cooperate with the House investigation constituted Impeachment Article 2.

3. The House Managers prosecuting the Senate trial were well-organized in laying out the detailed course of events underlying Impeachment Article 1. Their presentation earned compliments from a number of senators from both parties. This was in stark contrast to Trump’s legal defense team which never seemed to settle on a consistent line of defense.

4. The facts upon which the impeachment charges were based proved unarguable and uncontestable. This led Trump’s defense team to pursue an evolving line of defense. First: he did not seek a “political favor” from Ukraine. Second: well, he did, but what he did was not wrong. Third: well, his actions may not have been the best to do. Fourth: well, he asked Ukraine for a “favor,” but there was no quid pro quo – in spite of the substantial testimony to the contrary. Fifth: well, he committed no actual crime. Sixth: well, yes, he may have committed a crime, but it is a crime that does not rise to the “High Crimes and Misdemeanors” level of impeachment. Besides, ultimately a) Ukraine announced no prosecutions and b) they got their money. (Is the burglar who doesn’t find the jewels therefore innocent of the break-in?) Various Trump supporters tried to denigrate the significance of Trump’s solicitation of political help from Ukraine (and Russia and China). But for the Constitutional Founders, resisting any interference by foreign entities was a high priority and concern.

5. Twenty years ago in the impeachment trial of Bill Clinton, Senator Lindsey Graham and constitutional professor Alan Dershowitz separately argued that impeachment does NOT require the commission of an explicit statutory criminal act. In this trial on behalf of Trump, they each reversed course and said that impeachment DOES require a criminal act (an opinion rejected by the vast majority of legal scholars and Constitutional Founders). So which is it? Is legality based upon the law, or who the defendant is (and what political party s/he belongs to? Founder Alexander Hamilton wrote in “The Federalist” that impeachment applied to “the abuse or violation of some public trust” and “injuries done immediately to the society itself.”

Professor Dershowitz went on to offer a painfully nonsensical legal argument that if whatever the president does is for what s/he concludes is in the best interest of the country as s/he sees it, it is not illegal or impeachable. This includes concluding that if s/he is the best person to be president, then whatever s/he does to get elected is permissible. It is a discredited reasoning reminiscent of President Nixon’s statement during Watergate that “If the President does it, it is not a crime.”

6. One example of how far integrity has disappeared from Congress was the abdication of the Impeachment Oath. All one hundred senators swore an oath to their god committing them to approach this senate trial, and review the accusations and defense, from a perspective of “impartial justice.” Nevertheless, some senators from both parties announced their decision and intended vote well before the trial started. In particular, Majority Leader Mitch McConnell went even further by stating his intention to shut down and dismiss the trial as soon as possible, and that he was “in total coordination with the White House” (i.e. Trump) as to how the trial would be conducted. Hypocrisy reigned supreme.

7. To justify his decisions about the trial rules, McConnell (and other Republican senators) claimed that this trial was following the same rules as the Clinton impeachment. This was wrong. Clinton’s trial was based on the findings of an “Independent Counselor” (Ken Starr, now a part of Trump’s defense team) appointed by the Attorney General, who spent several years investigating Clinton. Starr turned over boxes of his interviews and supporting documentation – including sealed grand jury testimony – to the House, which formed the basis of the House’s Articles of Impeachment. This was supplemented by three witnesses called to the Senate. No such Independent Counselor or grand jury testimony was allowed for the trial of Trump. Trump’s trial was the first to include no witness testimony or additional documentation (though 70% of the public supported such input).

8. Some Republican defenders of Trump made the argument that this impeachment “was a partisan affair from the get-go in the House, an attempt to reverse the results of the 2016 election; the guilt/innocence of Trump should be left to the voters in November.” First, if it was a partisan affair in the House, would not the country be best served by rising above partisanship in the Senate and conducting a demonstrably model impartial trial– instead of tit-for-tat partisanship? Second, the Constitution assigns responsibility to the Congress for determining whether a president should be impeached and removed. It does not assign that responsibility to election day voters. Congress needed to step up to the job rather than pass the buck. Third, the basis for the Article 1 charge was that Trump sought to illegally tamper with the 2020 election. How does one defer his trial to the very process corrupted by his guilt?

In the end, this entire episode was not a proud moment for an America that has been an aspiration and role model for democracy for the world.  Trump broke at least two federal laws, threatened the security of both a European ally and America, and then tried to hide his actions from Congress and the citizenry. Virtually no Republican senator disputed that Trump committed these actions; rather, the trial was reduced to the subjective question of “how important” was it. The Senate “trial” proved to be no trial at all based upon many Americans’ understanding – by their own experience – of what constitutes a trial. In the process, the Senate effectively announced that: a) the President IS in fact above the law; b) House and Senate Republicans will back Trump in virtually whatever he chooses to do; and c) Congress has surrendered its oversight role over the Executive Branch – access to testimony, documents and information will henceforth be limited to only what a President allows.

Where this takes us from here, and what Trump will now feel free to do, is anyone’s guess. Now it is the People’s obligation to speak its impeachment judgment at the polls in November. What will America’s verdict be in November 2020?

©   2020   Randy Bell   

Saturday, January 18, 2020

2020 Vision

A new year is upon us. Not just a new year, but also a new decade. As it turns out, a decade as important and significant as was anticipated, a decade that will be defined by its first year. The events and the language are going to set our table, and define our future, more so than any year since 1945. Faced with a variety of choices, directions and alternatives, this is the year that will call the questions of who we are as a people and a country, and ask us to clarify what kind of country we want to live in, based upon what values and principles are truly most important.

We have been entrenched in uncivil conflict for 20 years, conflict now coming into open headlong collision. As a country, we have been arguing among ourselves about America’s purpose and promise since the very beginning of the Republic. We have been through and survived even worse times and fissures in our relationships. But not since our American Civil War has there been such a concerted attack on the institutions and principles that have held this country together in spite of our arguments. We argue about government programs, policies and priorities. We file endless lawsuits to try to clarify our laws, many of which are in fact clear in their intention. We elect leaders who do not lead – and do not even follow – but rather pursue their own personal agenda (or enrichment) with little regard for “the greater good.” Our conversations with each other have become superficial and outright mean, making societal progress and solutions to problems nearly impossible. Our Constitution – that marvelous expression of social and governmental creativity built upon our population’s better nature – is being chewed up by our population’s worse nature. We are drowning in fighting each other while we ignore the opportunities that are possible if we instead worked together. This dysfunction is funded by outlandish amounts of money spent to benefit self-interests in governmental, non-profit, cultural, religious, and corporate realms. And there seems no end in sight to this toxic and counterproductive environment.

Right out of the chute in 2020 will be the Senate impeachment trial of Donald Trump. Will this process be a political sham? Or will one hundred senators ignore the Politics of Power and, instead, act in an ethical exercise responsible to their special oath as “impartial impeachment jurors?” Separate from the ultimate verdict, will our citizens (and the world) watch our democracy in action, or will they see only political grandstanding and theater. Depending upon the outcome of the Senate vote, what actions will then follow, what forces will be unleashed?

Immediately thereafter (or even concurrently), the citizenry will begin to speak through the sacred voice of their vote. They will pick their candidates, and then their final choice, for president, but also for thousands of other federal, state, and local representatives. How will we conduct this election process, given that our experience suggests that this will be a very hard fought and ugly process, filled with exaggerated mistruths? Who will we choose, based upon what criteria: proposed policies; demonstrated competency; evidence of Character? Will this election be governed by fair rules that welcome all eligible voters, or corrupted by partisan misdeeds, perhaps even sabotaged by foreign adversaries intent on disrupting our faith in the results – if not the results themselves?

Alongside this internal journey, there will be incidents, threats, opportunities and conflicts happening across the globe. Ones we may be able to anticipate through today’s eyes; others not yet even a blip on our radar. Who will we entrust to navigate these events in the deeply interconnected world we now live – a world where isolation is no longer an option and cooperation is mandatory. Who will make friends and build partnerships, who will confront enemies appropriately, and who will be unable to distinguish between “friend and foe”?

Running in and out of these major narratives will be a continuing parade of investigations – federal and state prosecutions, judicial rulings, congressional oversight, and media reporting. There seems no end to the list of questionable actions and falsehoods still being continually uncovered. In 2020, some of these investigations will be concluded, some will continue to slowly unfold drop by drop, and (amazingly) some new ones will arise. For many Americans, it is nearly impossible to keep track of all of the separate cases now in process, much less the details embedded in each. But we have to try if we are to be informed voters trying to make good and rational decisions for our country.

Meanwhile, our many divisions continue to get bigger and deeper. We are building barriers over just about every facet of our society with an intention to dominate each other and establish one single “what’s right” for everyone. We are split between two political parties, and split even further within each. Many of our religions are dividing into more narrow denominations and branches over issues of faith, dogma and operational control. Economic goals conflict with social aspirations amid wide-spread debate about the role of government. Divisions over social, religious, gender and immigration questions are “negotiated” in seemingly daily barrages of bullets and violence. Meanwhile, “truth” and “facts” are strewn alongside the highway, roadkill casualties to our efforts to win at all costs. Potential progress is lost because it is “the other guy’s” fault.

Depressing? Yes, quite so. But it does not have to be this way. Our future is our choice – a choice to continue as we are or to make it different. What kind of America do we truly want? What American message do we wish to speak – to ourselves and to the world? When will we get tired of the fighting, and move to a renewed spirit of reconciliation and cooperation? What are we willing to give, and to give up, to achieve a renewed America?

In 2020, we will answer these fundamental, critical questions not by our words, but by our participatory engagement and our actions. It starts with our taking responsibility for the political and cultural environment we find ourselves in. It is not the other guy’s fault; it is our collective fault. The way out requires us to commit to truly staying informed, as difficult as it may be in these times when major events and headlines arrive on a seemingly daily basis. It requires us to reintroduce ourselves to our “opponents” and remember that these are our neighbors whose needs and aspirations should be our concern. It requires us to change the nature of our conversations from throwing bricks and hurling insults at each other, to listening to one another so as to understand why our worldviews differ. It requires us to reject lies, to speak from reasonable facts, to demand truth, and to insist on ethical behavior. It requires us to sit together, work together, and find the many middle grounds that are necessary to make living together possible. It requires us to move away from “my way” and to find “our way” by Compromising with each other – the very foundational and essential principle that our Founders had to draw upon to create this Republic in the first place.

Change does not start in the White House or Congress. Nor in governors’ mansions or state legislatures. It starts in each of our living rooms. Around our dinner tables. It is, as it was designed to be in the beginning, upon us – “We, the People.” What will we do with what we have been given?

©   2020   Randy Bell