Bob Schwartz

Category: Government

Barbara Jordan: Impeachment Is Not About Removal from Office

It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the President should be removed from office. The Constitution doesn’t say that. The powers relating to impeachment are an essential check in the hands of the body of the Legislature against and upon the encroachments of the Executive….

James Madison again at the Constitutional Convention: “A President is impeachable if he attempts to subvert the Constitution.” The Constitution charges the President with the task of taking care that the laws be faithfully executed, and yet the President has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice. “A President is impeachable if he attempts to subvert the Constitution.”…

If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that 18th-century Constitution should be abandoned to a 20th-century paper shredder!

Barbara Jordan, Statement on the Articles of Impeachment, 25 July 1974, House Judiciary Committee

Politician, legislator, educator, groundbreaker. Most especially orator. Former Congressman Barbara Jordan (1936-1996) was an American hero. And objectively one of the greatest American public figures of all time.

Objectively? How do we know this?

When you review American Rhetoric’s list of Top 100 Speeches you find Barbara Jordan at Number 5 (1976 Democratic National Convention Keynote Address) and Number 13 (Statement on the Articles of Impeachment, 25 July 1974, House Judiciary Committee). Her 1976 DNC speech is ranked below only MLK’s I Have A Dream, JFK’s Inaugural Address, and two speeches by FDR (First Inaugural Address and Pearl Habor Address to the Nation).

The reason her impeachment speech achieved its status is not only because of her unmatched talents as wordsmith and orator. It is because, as she often did, she went to the heart of the matter, which in the case of impeachment is not removal from office, but subverting the Constitution.

Mr. Chairman, I join my colleague Mr. Rangel in thanking you for giving the junior members of this committee the glorious opportunity of sharing the pain of this inquiry. Mr. Chairman, you are a strong man, and it has not been easy but we have tried as best we can to give you as much assistance as possible.

Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: “We, the people.” It’s a very eloquent beginning. But when that document was completed on the seventeenth of September in 1787, I was not included in that “We, the people.” I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in “We, the people.”

Today I am an inquisitor. An hyperbole would not be fictional and would not overstate the solemnness that I feel right now. My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.

“Who can so properly be the inquisitors for the nation as the representatives of the nation themselves?” “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men.”1 And that’s what we’re talking about. In other words, [the jurisdiction comes] from the abuse or violation of some public trust.

It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the President should be removed from office. The Constitution doesn’t say that. The powers relating to impeachment are an essential check in the hands of the body of the Legislature against and upon the encroachments of the Executive. The division between the two branches of the Legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the Framers of this Constitution were very astute. They did not make the accusers and the judgers — and the judges the same person.

We know the nature of impeachment. We’ve been talking about it awhile now. It is chiefly designed for the President and his high ministers to somehow be called into account. It is designed to “bridle” the Executive if he engages in excesses. “It is designed as a method of national inquest into the conduct of public men.”² The Framers confided in the Congress the power if need be, to remove the President in order to strike a delicate balance between a President swollen with power and grown tyrannical, and preservation of the independence of the Executive.

The nature of impeachment: a narrowly channeled exception to the separation-of-powers maxim.  The Federal Convention of 1787 said that. It limited impeachment to high crimes and misdemeanors and discounted and opposed the term “maladministration.” “It is to be used only for great misdemeanors,” so it was said in the North Carolina ratification convention. And in the Virginia ratification convention: “We do not trust our liberty to a particular branch. We need one branch to check the other.”

“No one need be afraid” — the North Carolina ratification convention — “No one need be afraid that officers who commit oppression will pass with immunity.” “Prosecutions of impeachments will seldom fail to agitate the passions of the whole community,” said Hamilton in the Federalist Papers, number 65. “We divide into parties more or less friendly or inimical to the accused.”³ I do not mean political parties in that sense.

The drawing of political lines goes to the motivation behind impeachment; but impeachment must proceed within the confines of the constitutional term “high crime[s] and misdemeanors.” Of the impeachment process, it was Woodrow Wilson who said that “Nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overgrow party interest may secure a conviction; but nothing else can.”

Common sense would be revolted if we engaged upon this process for petty reasons. Congress has a lot to do: Appropriations, Tax Reform, Health Insurance, Campaign Finance Reform, Housing, Environmental Protection, Energy Sufficiency, Mass Transportation. Pettiness cannot be allowed to stand in the face of such overwhelming problems. So today we are not being petty. We are trying to be big, because the task we have before us is a big one.

This morning, in a discussion of the evidence, we were told that the evidence which purports to support the allegations of misuse of the CIA by the President is thin. We’re told that that evidence is insufficient. What that recital of the evidence this morning did not include is what the President did know on June the 23rd, 1972.

The President did know that it was Republican money, that it was money from the Committee for the Re-Election of the President, which was found in the possession of one of the burglars arrested on June the 17th. What the President did know on the 23rd of June was the prior activities of E. Howard Hunt, which included his participation in the break-in of Daniel Ellsberg’s psychiatrist, which included Howard Hunt’s participation in the Dita Beard ITT affair, which included Howard Hunt’s fabrication of cables designed to discredit the Kennedy Administration.

We were further cautioned today that perhaps these proceedings ought to be delayed because certainly there would be new evidence forthcoming from the President of the United States. There has not even been an obfuscated indication that this committee would receive any additional materials from the President. The committee subpoena is outstanding, and if the President wants to supply that material, the committee sits here. The fact is that on yesterday, the American people waited with great anxiety for eight hours, not knowing whether their President would obey an order of the Supreme Court of the United States.

At this point, I would like to juxtapose a few of the impeachment criteria with some of the actions the President has engaged in. Impeachment criteria: James Madison, from the Virginia ratification convention. “If the President be connected in any suspicious manner with any person and there be grounds to believe that he will shelter him, he may be impeached.”

We have heard time and time again that the evidence reflects the payment to defendants money. The President had knowledge that these funds were being paid and these were funds collected for the 1972 presidential campaign. We know that the President met with Mr. Henry Petersen 27 times to discuss matters related to Watergate, and immediately thereafter met with the very persons who were implicated in the information Mr. Petersen was receiving. The words are: “If the President is connected in any suspicious manner with any person and there be grounds to believe that he will shelter that person, he may be impeached.”

Justice Story: “Impeachment” is attended — “is intended for occasional and extraordinary cases where a superior power acting for the whole people is put into operation to protect their rights and rescue their liberties from violations.” We know about the Huston plan. We know about the break-in of the psychiatrist’s office. We know that there was absolute complete direction on September 3rd when the President indicated that a surreptitious entry had been made in Dr. Fielding’s office, after having met with Mr. Ehrlichman and Mr. Young. “Protect their rights.” “Rescue their liberties from violation.”

The Carolina ratification convention impeachment criteria: those are impeachable “who behave amiss or betray their public trust.”4 Beginning shortly after the Watergate break-in and continuing to the present time, the President has engaged in a series of public statements and actions designed to thwart the lawful investigation by government prosecutors. Moreover, the President has made public announcements and assertions bearing on the Watergate case, which the evidence will show he knew to be false. These assertions, false assertions, impeachable, those who misbehave. Those who “behave amiss or betray the public trust.”

James Madison again at the Constitutional Convention: “A President is impeachable if he attempts to subvert the Constitution.” The Constitution charges the President with the task of taking care that the laws be faithfully executed, and yet the President has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice. “A President is impeachable if he attempts to subvert the Constitution.”

If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that 18th-century Constitution should be abandoned to a 20th-century paper shredder!

Has the President committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That’s the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.

Sarah Sanders Knows God’s Will and Says God Wants Trump

Berry Chapel, Ouachita Baptist University, Arkadelphia, Arkansas, alma mater of Sarah Sanders

“I think God calls all of us to fill different roles at different times and I think that he wanted Donald Trump to become president. And that’s why he’s there.”
Sarah Sanders, White House Press Secretary, interviewed by Christian Broadcasting Network

[long pause]

[another long pause]

Some people believe that that they know the will of God and that God intervenes in worldly affairs according to that will, in any and all matters. In this view, God exercises preference for particular outcomes—from presidential elections to football games to epidemic diseases. God wants Trump to be president. God wants the New England Patriots to win the Super Bowl. God wants to punish homosexuals with AIDS. And so on.

Others believe in a non-interventionist God, who has set the scene, given humans a treasure of tools, and expects those humans to make or break whatever they will. Sometimes those humans use those tools for great good, sometimes they act the fools, and sometimes they are monstrously destructive. It’s up to them. It’s up to us.

If, like Sarah Sanders, you claim to know God’s will and know that he wants Trump, consider this. If you sum up all that Trump has done and said so far, in his life and his presidency, does God by his “choosing” Trump endorse all of that? That is, under the Sanders theology, if we know Trump, we know his benefactor God.

Leaving us with this disturbing question: Just what kind of God does Sanders believe in?

Democracy dies in darkness, as the Washington Post reminds us. It can also be mortally wounded by un-Americans like Scott Walker and the Wisconsin Republicans

New York Times – September 17, 1933 – Reichstag Fire Trial

New York Times:

Wisconsin’s Scott Walker Signs Bills Stripping Powers From Incoming Governor

FOX CROSSING, Wis. — Scott Walker, the outgoing Republican governor of Wisconsin, on Friday signed into law measures that diminish the power of his Democratic successor and expand the authority of Republican lawmakers who teamed up with him over the last eight years to move the state firmly to the right.

Mr. Walker approved the measures over the vehement objections of the incoming governor and despite fierce protest in the State Capitol as Republican lawmakers rushed the bills through in a hastily-called session last week. Tony Evers, the Democrat who beat Mr. Walker in the November election, has suggested that he may file suit over the changes and said that Mr. Walker had chosen “to ignore and override the will of the people of Wisconsin.”

Mr. Walker’s move will solidify some of the policies that made him a hero to many conservatives nationally and, for a brief time, a leading presidential candidate. But participating in what many Democrats consider a legally dubious power grab also cemented another widely held view: that Mr. Walker is a bruising partisan willing to break precedent and ignore protests for political gain.

If you don’t understand what is wrong with this and how wrong it is, go back to your basic lessons in the U.S. Constitution, American civics and American history. World history too. This is just the sort of tactic used by current dictators—Putin and Xi among them—and past dictators such as Hitler to gain or maintain power.

Power, which in America and every other actual, rather than nominal, democracy rests in the people. Yes, the people.

A 7-year-old girl dies in U.S. custody. The White House disclaims responsibility. The White House needs lessons in logic. And compassion.

When I was hungry you gave me to eat
When I was thirsty you gave me to drink
Whatever you do to the least, you do it to Me

Washington Post:

Trump administration not to blame for ‘tragic’ death of 7-year-old girl in Border Patrol custody, White House says

A White House spokesman on Friday called the death of a 7-year-old girl in Border Patrol custody a “tragic situation” but said the Trump administration is not to blame and called on Congress to “disincentivize” migrants from making long treks to the southern U.S. border.

U.S. Customs and Border Protection said Thursday that the girl from Guatemala died of dehydration and shock after she was taken into custody last week for crossing from Mexico into the United States illegally with her father and a large group of migrants along a remote span of New Mexico desert.

Asked by a reporter if the administration is “taking any responsibility for the girl’s death,” White House spokesman Hogan Gidley said: “Does the administration take responsibility for a parent taking a child on a trek through Mexico to get to this country? No.”

According to CBP records, the girl and her father were detained about 10 p.m. Dec. 6 south of Lordsburg, N.M., as part of a group of 163 people who approached U.S. agents to turn themselves in.

More than eight hours later, the child began having seizures, CBP records show. Emergency responders, who arrived soon after, measured her body temperature at 105.7 degrees. According to a statement from CBP, she “reportedly had not eaten or consumed water for several days.”

She died less than 24 hours after being transported by helicopter to a hospital in El Paso.

Here is the missing logic:

It is stipulated that the girl died in part from dehydration, also possibly from malnutrition.
It is stipulated by the U.S. CBP that she had not eaten or consumed water for several days.
The CPB had her in custody for eight hours before she showed symptoms.
During the eight hours she was in custody, she could have been given water and food, but apparently wasn’t.
Therefore, CPB could have done something to help prevent the death but didn’t, which indicates some responsibility.

As for the missing compassion, last night the White House held its grand Christmas Party. Maybe somehow, sometime, during the season, they will learn something. Miracles do happen.

Trump Predicts Revolt If He Is Removed. Are His Words Illegal?

King Louis XV: “Après nous, le deluge.”

Barely noted yesterday, or mostly ignored because we discount just about everything that Trump says, is this from his interview with Reuters, talking about the possibility of impeachment:

“I’m not concerned, no. I think that the people would revolt if that happened.”

A President of the United States just suggested—implicitly endorsed—the possibility of revolution in the event of his ouster. Had this happened at any other time in the past two centuries, bells would be going off as if the Republic was on fire.

In the first place, it is arguably illegal:

18 U.S. Code § 2385 – Advocating Overthrow of Government

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government…

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

Does his interview constitute advocating or advising the desirability of overthrowing government? As a matter of crime, it might be a stretch. As a matter of civic responsibility from America’s highest public office, it is farther over the line than almost anything else Trump has said—and that is saying something.

Second—and this is the real bell ringer—he is in some sense right. The form of revolt is uncertain, but it would likely be more than angry and vicious posts on social media. Even his vacating the office through resignation or by electoral defeat in 2020 might have a similar effect.

In America’s darkest historic hour before the Civil War, in an overheated political climate, some of the greatest statesmen in our history tried to keep the lid on a boiling pot. They failed.

We are nowhere near that. But among the roster of politicians, we don’t seem to have as many genuine statesmen as we had back then—or as we had just a few decades ago. And we’ve never had a president predicting—encouraging—revolt as the consequence of his absence.

Bob Woodward and Seth Meyers have criticized CNN for suing the White House over the pulling of Jim Acosta’s press credentials. With all due respect to Woodward, you’re wrong.

Noted legal scholar Seth Meyers

The White House pulled the press credentials of CNN journalist Jim Acosta because Trump doesn’t like his questions, his attitude or him. The First Amendment does not allow this. CNN has sued.

Bob Woodward, an extraordinary and legendary journalist who has made his indelible mark on American history, has criticized CNN for feeding Trump’s appetite for lawsuits. So has Seth Meyers, an amusing entertainer legendary for nothing.

Lawyers are not that special. But lawyers are a bit more sensitive than some others to how unopposed government assaults on constitutional rights tend to gather momentum, sliding down a slippery slope. Waiting only makes things worse.

So to Bob Woodward, who deserves infinite respect for all he has done and continues to do, in this case you are wrong. And to Seth Meyers, who is well rewarded for working within the protection of the First Amendment, please remember that the First Amendment needs protection too. It is the First Amendment that allows those who are funny and sometimes ill-informed to express themselves without government interference.

“A Republic, if you can keep it.”

Possibly the most famous and prophetic quote from the American Constitutional Convention is attributed to Benjamin Franklin. America was not just a new nation; it was a new kind of nation, so naturally people wondered just what kind of a nation it was to be:

As Benjamin Franklin left the Constitutional Convention, on September 18, 1787, a certain Mrs. Powel shouted out to him: “Well, doctor, what have we got?,” and Franklin responded: “A Republic, if you can keep it.”

America has voted, there will be a Democratic-led House, and it appears that the Republic, which has been under serious internal siege for the past two years, is a little closer to again being kept.

It is just one step toward having an effective check on a leader and a ruling party intent on subverting virtually all of the principles that Franklin and friends embodied in the new nation. But a step in the right direction it is.

Franklin and friends are cautiously relieved. They, more than any, know how hard this is. So they are smiling a little. And so are many Americans.

The Hopeful But Limited Relief of Having the New Kavanaugh Investigation

It is good news that there will be a new FBI investigation in the Brett Kavanaugh matter. Any movement towards a return to free, open and lawful democracy is welcome.

But before we pop champagne and release balloons, a reality check. Here are some ways the investigation could have little effect on the outcome—in fact, will be designed to have little effect, besides providing cover for vulnerable and/or spineless Republicans.

1. It is a limited investigation. We don’t know the scope, which is being directed by Trump. It could be as narrow as the single incident alleged by Christine Blasey Ford, the incident that was the subject of Thursday’s hearing. This could mean simply talking to her, to Brett Kavanaugh, and to the few people who were there—only one of whom, Mark Judge, is an eyewitness.

Judge has already said that as an effect of his chronic alcoholic blackouts, going back to high school, he has no memory, one way or the other, of the incident. There is no reason he won’t say the same thing to the FBI.

The investigation could be broader. It could include other allegations that have been made. It could include everything that Ford and Kavanaugh testified to during the hearing. It could thus involve Kavanaugh’s claims about his benign behavior, claims that have been refuted by a number of people who knew him in high school and college. It could include all this, but almost certainly will not.

2. Trump controls the report of the investigation. Trump ordered the investigation. His order presumably included a specific scope of investigation for the FBI to follow. Just as importantly, the report of the investigation will go directly to Trump, who can decide how much of the investigation report can be shared and who it can be shared with.

The worst case, which would not be surprising, is that no copies of the report will be distributed. Instead, senators will be allowed to review the report in the White House. They may be allowed to take notes.

All of this—any presidential redaction and any restricted distribution—are part of the desire by some for this investigation to be “confidential”…

3. The investigation is, in some unspecified way, supposed to be “confidential”. Judge has said he wants whatever he says to be confidential. Kavanaugh has indicated he expects it to be confidential. It is unclear what this means functionally. But it is easy to see the case that would be made:

The only reason we are doing this investigation is to further inform the senators responsible for deciding on confirmation. Others, whether other members of Congress or citizens in general, may be curious, but they have no compelling reason to see the detailed report, given that it contains sensitive information.

If that reasoning sounds extreme, that is, extremely suspect, it is. But if you need a basis for it, just look at the “investigation” that went into Kavanaugh in the first place, and look at the history of the Trump administration. No twisted attempt at hiding the truth is too absurd.

“That’s Pride F***in’ Wit Ya”: Rod Rosenstein Could Never Figure Out Whether to Follow Self-Interest, Duty or Conscience

All public servants in the Trump era—from Senators and cabinet members on down—have three possible paths to follow:

Follow your self-interest
Follow your duty, to job and to country
Follow your conscience

Many of the highest level people in the government have taken the easy path of least resistance and most gain, and have chosen self-interest, even as they try to disguise it as duty or conscience. But a number of people, many of whom finally left the government—voluntarily or not—have had to wrestle with these choices.

Whatever is happening to Rod Rosenstein, a good public servant, he never seemed to be able to figure out exactly how to be a good public servant in such strange times. He knew he owed a duty to his office and to his country, which meant a duty to his president, but that came in conflict with his conscience.

I have previously cited the movie Pulp Fiction on the question of expedience, and I repeat it here.

At this point in the movie bad boss Marsellus Wallace (Ving Rhames) is convincing aging boxer Butch Coolidge (Bruce Willis) to take a dive:

I think you’re gonna find ­ when all this shit is over and done ­ I think you’re gonna find yourself one smilin’ motherfucker. Thing is Butch, right now you got ability. But painful as it may be, ability don’t last. Now that’s a hard motherfuckin’ fact of life, but it’s a fact of life your ass is gonna hafta git realistic about. This business is filled to the brim with unrealistic motherfuckers who thought their ass aged like wine. Besides, even if you went all the way, what would you be? Feather-weight champion of the world. Who gives a shit? I doubt you can even get a credit card based on that.

Now the night of the fight, you may fell a slight sting, that’s pride fuckin’ wit ya. Fuck pride! Pride only hurts, it never helps. Fight through that shit. ‘Cause a year from now, when you’re kickin’ it in the Caribbean you’re gonna say, “Marsellus Wallace was right.”

Note: For those who haven’t seen Pulp Fiction (why not?), in the end Marsellus Wallace gets his, in the spirit of Quentin Tarantino’s sense of rough and uncertain justice.

Ray of Light: Trump’s Pardoning May Be Like a Slot Machine

The likelihood of any individual being pardoned by Trump will be affected by Trump’s craziness, unreliability and lack of loyalty. It will be like a slot machine. And that may be a good thing for justice and the rule of law.

Even though I have long accepted that Trump would try to pardon almost everyone who is charged or convicted in the course of the investigation, Paul Manafort’s plea agreement to cooperate raises an encouraging insight:

If you were one of the dozens of people who are getting caught in this net, facing possible years in prison, and Trump told you to your face—not just through an intermediary, not just through hints on Twitter—that you could expect a pardon, would you believe him and depend on him to keep his word?

Of course you wouldn’t believe him and depend on him to keep his word. Which means, just like Manafort, you have to hedge your bets. It is possible that if you agree to cooperate, Trump might still pardon you. On the other hand, if you agree to cooperate, Trump might go crazy and refuse to pardon you. And in the worst case, you might stonewall and take your punishment, but because of some crazy voices in Trump’s head, he might still refuse to pardon you. Who knows? With Trump it’s a roll of the dice, a spin of the slots. As a defendant, are you willing to bet ten or twenty years of your life on a Looney Tunes character? I bet not.