Bob Schwartz

Category: Law

January 28, 2020

There is no sanction for lawyers who talk nonsense. But there is accountability for misleading and lying—especially in front of the Chief Justice.

Oath on Admission to the U.S. Courts

I do solemnly swear (or affirm) that as an attorney and as a counselor of this court I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States.

I regularly point out that almost two dozen of the lawyers who helped Richard Nixon execute and cover up his abuse of power and illegal schemes ended up being punished personally and professionally—from jail to disbarment to suspension. (See Lessons for Trump Attorneys: The Lawyers of Watergate)

It may seem a fine line between advocating a position and crossing the line into misconduct. But not really. Lawyers are sworn officers of the court, the law and the Constitution, given substantial power. They are commanded, by their oaths and by the rules of professional responsibility, not to mislead the court and not to lie (and obviously not to break the law).

It is the view of many, unspoken for a while but now being whispered, that various attorneys involved in Trump-related matters have put themselves on the wrong side of the professional line. I note with respect that lawyers are expert at walking up to the lines but not crossing them. Yet in high power highly-charged situations, as with Nixon, as with Trump, greater forces sometimes overwhelm even the smartest and most judicious.

We are still in the eye of the storm. After the dust settles, expect to see some of these lawyers brought before their respective bar associations for consideration of their conduct. It happened in Watergate. It will happen again.

1 Comment
December 18, 2019

Barbara Jordan: “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!”

“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!”

From Statement on the Articles of Impeachment, 25 July 1974, House Judiciary Committee by Rep. Barbara Jordan. Barbara Jordan is ranked by experts as one of the greatest American orators of the 20th century, alongside FDR, John F. Kennedy and Martin Luther King Jr. This speech is ranked number 13 on the all-time list.

Complete Statement on the Articles of Impeachment, 25 July 1974, House Judiciary Committee by Rep. Barbara Jordan

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.

Leave a comment
October 28, 2019

Critical times are tough tests for lawyers. Some pass, some fail.

Lawyers are sworn officers of the courts of their respective states and federal jurisdictions. They take a solemn oath. They take that oath because as citizens we give them substantial power as officers of the court. As Spiderman (not a lawyer) reminds us, with great power comes great responsibility.

In normal times it is hard enough for lawyers to balance all the interests surrounding them—professional, personal, political. In abnormal and critical times—like these—lawyers may be pushed to pick a lane. The onerous professional demands, as embodied in the oath, may be in conflict with other interests, including ambition, success and ideology.

In previous posts, I’ve mentioned a few examples of times in which lawyers chose poorly. One is the case of attorneys involved in Watergate, almost two dozen of whom ended up being punished and sanctioned.  Another is Hans Frank, a brilliant attorney known as Hitler’s Lawyer.  There are many other infamous examples.

The number of lawyers involved in current events, as principals or as advocates, is growing exponentially. It will only expand as dark matters surrounding the president get deeper and more serious. Please keep this in mind as this drama unfolds.

Here is an example of an oath, one taken by attorneys in the State of Washington:

 

OATH OF ATTORNEY

I do solemnly declare:

I am fully subject to the laws of the State of Washington and the laws of the United States and will abide by the same.

I will support the constitution of the State of Washington and the constitution of the United States.

I will abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Washington.

I will maintain the respect due to the courts of justice and judicial officers.

I will not counsel, or maintain any suit, or proceeding, which shall appear to me to be unjust, or any defense except as I believe to be honestly debatable under the law, unless it is in defense of a person charged with a public offense. I will employ for the purpose of maintaining the causes confided to me only those means consistent with truth and honor. I will never seek to mislead the judge or jury by any artifice or false statement.

I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with the business of my client unless this compensation is from or with the knowledge and approval of the client or with the approval of the court.

I will abstain from all offensive personalities, and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which I am charged.

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay unjustly the cause of any person.

 

Leave a comment
July 9, 2019

Hitler’s Lawyer

“Frank was a typical example of the Nazi intellectual gangster. He had joined the party in 1927, soon after his graduation from law school, and quickly made a reputation as the legal light of the movement. Nimble-minded, energetic, well-read not only in the law but in general literature, devoted to the arts and especially to music, he became a power in the legal profession after the Nazis assumed office, serving first as Bavarian Minister of Justice, then Reichsminister without Portfolio and president of the Academy of Law and of the German Bar Association. A dark, dapper, bouncy fellow, father of five children, his intelligence and cultivation partly offset his primitive fanaticism and up to this time made him one of the least repulsive of the men around Hitler. But behind the civilized veneer of the man lay the cold killer. The forty-two-volume journal he kept of his life and works, which showed up at Nuremberg, was one of the most terrifying documents to come out of the dark Nazi world, portraying the author as an icy, efficient, ruthless, bloodthirsty man. Apparently it omitted none of his barbaric utterances.”
William L. Shirer, The Rise and Fall of the Third Reich

Hitler, like all successful tyrants, subverted the legal system to his own ends. Part of this was finding lawyers willing to switch their allegiance from law and morality to Der Fuehrer. Some switched out of fear, but many switched because they agreed with Hitler’s ideology and were passionate enablers of his plans.

Hans Frank is often called Hitler’s Lawyer. That is precisely how he began his Nazi career, going on to roles as Commissioner of Justice and Reich Law Leader and as Governor General of Poland.

Hans Frank was tried and convicted of war crimes at the Nuremberg Trials. Before his execution, he claimed contrition. Along with other Nazi war criminals, he was executed.

Following are excerpts about Hans Frank from William L. Shirer’s The Rise and Fall of the Third Reich.

In the spring of 1930 three young lieutenants, Ludin, Scheringer and Wendt, of the garrison at Ulm were arrested for spreading Nazi doctrines in the Army and for trying to induce their fellow officers to agree that in the case of an armed Nazi revolt they would not fire on the rebels….A week after the Nazi successes in the September elections of 1930, the three subalterns were arraigned before the Supreme Court at Leipzig on charges of high treason. Among their defenders were two rising Nazi lawyers, Hans Frank and Dr. Carl Sack.

But it was neither the lawyers nor the accused who occupied the limelight at the trial, but Adolf Hitler. He was called by Frank as a witness. His appearance represented a calculated risk. It would be embarrassing to disown the three lieutenants, whose activities were proof of the growth of Nazi sentiment in the Army, which he did not want to discourage. It was embarrassing that Nazi efforts to subvert the Army had been uncovered. And it was not helpful to his present tactics that the prosecution had charged the Nazi Party with being a revolutionary organization intent on overthrowing the government by force. To deny that last charge, Hitler arranged with Frank to testify for the defense. But in reality the Fuehrer had a much more important objective. That was, as leader of a movement which had just scored a stunning popular triumph at the polls, to assure the Army and especially its leading officers that National Socialism, far from posing a threat to the Reichswehr, as the case of the Nazi subalterns implied, was really its salvation and the salvation of Germany….

The Civil Service law of April 7, 1933, was made applicable to all magistrates and quickly rid the judiciary not only of Jews but of those whose Nazism was deemed questionable, or, as the law stipulated, “who indicated that he was no longer prepared to intercede at all times for the National Socialist State.” To be sure, not many judges were eliminated by this law, but they were warned where their duty lay. Just to make sure that they understood, Dr. Hans Frank, Commissioner of Justice and Reich Law Leader, told the jurists in 1936, “The National Socialist ideology is the foundation of all basic laws, especially as explained in the party program and in the speeches of the Fuehrer.” Dr. Frank went on to explain what he meant:

There is no independence of law against National Socialism. Say to yourselves at every decision which you make: “How would the Fuehrer decide in my place?” In every decision ask yourselves: “Is this decision compatible with the National Socialist conscience of the German people?” Then you will have a firm iron foundation which, allied with the unity of the National Socialist People’s State and with your recognition of the eternal nature of the will of Adolf Hitler, will endow your own sphere of decision with the authority of the Third Reich, and this for all time.

That seemed plain enough, as did a new Civil Service law of the following year (January 26, 1937), which called for the dismissal of all officials, including judges, for “political unreliability.” Furthermore, all jurists were forced to join the League of National Socialist German Jurists, in which they were often lectured on the lines of Frank’s talk….

Such was the government of the Third Reich, administered from top to bottom on the so-called leadership principle by a vast and sprawling bureaucracy, having little of the efficiency usually credited to the Germans, poisoned by graft, beset by constant confusion and cutthroat rivalries augmented by the muddling interference of party potentates and often rendered impotent by the terror of the S.S.-Gestapo.

At the top of the swarming heap stood the onetime Austrian vagabond, now become, with the exception of Stalin, the most powerful dictator on earth. As Dr. Hans Frank reminded a convention of lawyers in the spring of 1936, “There is in Germany today only one authority, and that is the authority of the Fuehrer.”….

What was left of Poland after Russia seized her share in the east and Germany formally annexed her former provinces and some additional territory in the west was designated by a decree of the Fuehrer of October 12 as the General Government of Poland and Hans Frank appointed as its Governor General, with Seyss-Inquart, the Viennese quisling, as his deputy. Frank was a typical example of the Nazi intellectual gangster. He had joined the party in 1927, soon after his graduation from law school, and quickly made a reputation as the legal light of the movement. Nimble-minded, energetic, well-read not only in the law but in general literature, devoted to the arts and especially to music, he became a power in the legal profession after the Nazis assumed office, serving first as Bavarian Minister of Justice, then Reichsminister without Portfolio and president of the Academy of Law and of the German Bar Association. A dark, dapper, bouncy fellow, father of five children, his intelligence and cultivation partly offset his primitive fanaticism and up to this time made him one of the least repulsive of the men around Hitler. But behind the civilized veneer of the man lay the cold killer. The forty-two-volume journal he kept of his life and works, which showed up at Nuremberg,* was one of the most terrifying documents to come out of the dark Nazi world, portraying the author as an icy, efficient, ruthless, bloodthirsty man. Apparently it omitted none of his barbaric utterances.

“The Poles,” he declared the day after he took his new job, “shall be the slaves of the German Reich.” When once he heard that Neurath, the “Protector” of Bohemia, had put up posters announcing the execution of seven Czech university students, Frank exclaimed to a Nazi journalist, “If I wished to order that one should hang up posters about every seven Poles shot, there would not be enough forests in Poland with which to make the paper for these posters.”

Himmler and Heydrich were assigned by Hitler to liquidate the Jews. Frank’s job, besides squeezing food and supplies and forced labor out of Poland, was to liquidate the intelligentsia. The Nazis had a beautiful code name for this operation: “Extraordinary Pacification Action” (Ausserordentliche Befriedigungsaktion, or “AB Action,” as it came to be known). It took some time for Frank to get it going. It was not until the following late spring, when the big German offensive in the West took the attention of the world from Poland, that he began to achieve results. By May 30, as his own journal shows, he could boast in a pep talk to his police aides of good progress—the lives of “some thousands” of Polish intellectuals taken, or about to be taken.

“I pray you, gentlemen,” he asked, “to take the most rigorous measures possible to help us in this task.” Confidentially he added that these were “the Fuehrer’s orders.” Hitler, he said, had expressed it this way:

“The men capable of leadership in Poland must be liquidated. Those following them… must be eliminated in their turn. There is no need to burden the Reich with this… no need to send these elements to Reich concentration camps.”

They would be put out of the way, he said, right there in Poland.

At the meeting, as Frank noted in his journal, the chief of the Security Police gave a progress report. About two thousand men and several hundred women, he said, had been apprehended “at the beginning of the Extraordinary Pacification Action.” Most of them already had been “summarily sentenced”—a Nazi euphemism for liquidation. A second batch of intellectuals was now being rounded up “for summary sentence.” Altogether “about 3,500 persons,” the most dangerous of the Polish intelligentsia, would thus be taken care of.

Frank did not neglect the Jews, even if the Gestapo had filched the direct task of extermination away from him. His journal is full of his thoughts and accomplishments on the subject. On October 7, 1940, it records a speech he made that day to a Nazi assembly in Poland summing up his first year of effort.

My dear Comrades! …I could not eliminate all lice and Jews in only one year. [“Public amused,” he notes down at this point.] But in the course of time, and if you help me, this end will be attained.

A fortnight before Christmas of the following year, Frank closed a cabinet session at Cracow, his headquarters, by saying:

As far as the Jews are concerned, I want to tell you quite frankly that they must be done away with in one way or another… Gentlemen, I must ask you to rid yourself of all feeling of pity. We must annihilate the Jews.

It was difficult, he admitted, to “shoot or poison the three and a half million Jews in the General Government, but we shall be able to take measures which will lead, somehow, to their annihilation.” This was an accurate prediction….

Everything possible was squeezed out of Poland by the greedy Nazi conquerors. “I shall endeavor,” said Dr. Frank, the Governor General, “to squeeze out of this province everything that is still possible to squeeze out.” This was at the end of 1942, and in the three years since the occupation he had already squeezed out, as he continually boasted, a great deal, especially in foodstuffs for hungry Germans in the Reich. He warned, however, that “if the new food scheme is carried out in 1943 a half-million people in Warsaw and its suburbs alone will be deprived of food.”

The nature of the New Order in Poland had been laid down as soon as the country was conquered. On October 3, 1939, Frank informed the Army of Hitler’s orders.

“Poland can only be administered by utilizing the country through means of ruthless exploitation, deportation of all supplies, raw materials, machines, factory installations, etc., which are important for the German war economy, availability of all workers for work within Germany, reduction of the entire Polish economy to absolute minimum necessary for bare existence of the population, closing of all educational institutions, especially technical schools and colleges in order to prevent the growth of the new Polish intelligentsia. Poland shall be treated as a colony. The Poles shall be the slaves of the Greater German Reich.

 

Leave a comment
April 25, 2019

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.

Leave a comment
December 12, 2018

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.

Leave a comment
November 14, 2018

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.

Leave a comment
September 29, 2018

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.

Leave a comment
September 28, 2018

Mark Judge and the Theology of Whistleblowing

Mark Judge has come up frequently in the matter of Brett Kavanaugh. Judge was a high school buddy of Kavanaugh’s, and has chronicled his own wild years as a teenage alcoholic. The question Judge can answer—but so far won’t—is whether Kavanagugh was mostly a “choir boy”, as Kavanaugh swears he was, or whether together they engaged in drunken and sometimes aggressive behavior.

Kavanaugh doesn’t want an FBI investigation, Trump will not order one, and the Senate Judiciary Committee did not subpoena Judge. At this point, the only way Judge will speak out is voluntarily. And he has made clear that he does not want to be involved, that he has no memory of the particular incident involving Christine Blasey Ford, and that given his health and his recovery from long-time alcoholism, his public involvement would be detrimental.

This is all to introduce a different light on the matter. Judge’s memoirs of his life and recovery, including a high school depiction of the thinly disguised “Bart O’Kavanagh”, have gotten the most attention. But Judge, a devout Catholic, has also written frequently about the Church and about the need for more theological education.

The involvement of the Church in the Kavanaugh nomination has been pretty straightforward. It is believed that he will help in advancing constitutional limits on or even banning of abortion, and so he is favored. The influential magazine America: The Jesuit Review enthusiastically endorsed him in July. Yet after yesterday’s hearings, where it became apparent to some that Kavanaugh may have been lying about the incident with Ms. Ford, America rescinded its endorsement:

The Editors: It is time for the Kavanaugh nomination to be withdrawn

While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn….Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability….We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

This is not, however, about the Catholic position on Kavanaugh. It is about whistleblowing. Mark Judge is in the position of a whistleblower. As a general matter of ethics and theology, that is a topic that has been widely discussed by Catholic theologians and philosophers. And as a specific topic, the Church is painfully familiar with keeping secrets (yes, sexual secrets) and the theology of handling those who might open a pathway to the painful truth.

Mark Judge has no doubt sought faithful guidance on how to proceed. That religious direction may be supplanted by legal process: it is almost certain that in a Democratic Congress, the Kavanaugh matter will be pursued in hearings, even as Kavanaugh sits on the Court. That will mean a subpoena for Judge.

Duty to yourself. Duty to others, especially the suffering. Duty to your faith. Duty to the truth. As a thoughtful Catholic Mark Judge knows, as every thoughtful person of faith knows, there are way more questions than answers.

Leave a comment
June 18, 2018

To My Brothers and Sisters in the Law: Remember Professional Ethics in the Face of Tyranny

Some of my readers may be lawyers; certainly some colleagues, friends or members of their families are, so please pass this on if you would like. Many people involved in current immoral and unethical polices such as the forced separation of migrant children are also lawyers.

This is a brief chapter from On Tyranny: Twenty Lessons from the Twentieth Century (2017). Note that the Kindle edition of this essential book is only $3.99. It is the best and most conscientious $3.99 you can spend right now.

5. Remember Professional Ethics (emphases added)

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the paper for posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among the commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped, and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable.

Leave a comment