The President and 2018

Yesterday I heard Michael Steele, the former R.N.C. Chair, comment that the President’s behavior in the last weeks indicates that he doesn’t care who his political opponents are – Democrats or Republicans — and that keeping the House in Republican hands is not his interest. Given Mr. Steele’s comment, I can’t resist posting excerpts from a letter I wrote in September, 2017 [maybe I should have been a pundit 😉 ] :

I wonder if the President – whether or not he consciously realizes it – really cares whether he achieves any substantive legislative goals (save, perhaps, a change in the tax code that puts money in his and his family’s pockets). He clearly has come to realize that his supporters love him because of what he is and says – as [some] have said, the symbolic middle finger to the elites and establishment – not for what he does.

As a uniquely-skilled showman that seemingly craves adulation even more than money, the President clearly understands that any good show needs struggle and an antagonist. This has and will enable him to rail against Congress – no matter which party controls it – “for failing to get things done.” Change of control of either or both Houses of Congress will be devastating to people like Mitch McConnell and Paul Ryan, but – aside from impeachment concerns — will the President really care? It will simply allow him to make Chuck Schumer and Nancy Pelosi his antagonists – to blame them for the fact nothing is getting done to help his supporters.

An Addendum: Hope Hicks

Ms. Hicks’ departure has made me reflect on her in a way that I hadn’t when I posted the last piece. Given her continuous close physical proximity to the President from the beginning of the campaign through now, and her obvious great affection for him (and his for her), any evidence she would present regarding his activities would seemingly have great weight with a jury. Since Ms. Hicks is younger than my youngest child, it would be my advice to her not only as a lawyer but also as a father: You’re 29. You’ll likely live 50 years after the President dies. Don’t let this ruin your life as Monica Lewinsky’s life has been irreparably harmed. Tell Mueller’s people everything you know. You certainly seem likely to be characterized as a witness to, rather than an actor in, whatever went on, so if you play it straight, you will probably walk away from this with no legal ramifications and plenty of opportunities. If you don’t, there’s a better than even chance you’ll end up bitterly regretting it for the rest of your life …

Messrs. Trump, Mueller, and “The Godfather”

Lawyers like to play out scenarios; a few premises followed by a reference to the operational wisdom of the fictional Don Vito Corleone.

If I were Mr. Mueller, and I was trying to obtain evidence of wrong doing against President Trump, I think I’d have reached the following conclusions:

Even assuming that a President can be indicted or tried, any case against the President would certainly involve a credibility contest between the President and the prosecution’s witnesses. Any one person’s word against the President’s would be insufficient to warrant bringing a case against him; there would be no realistic expectation of obtaining a verdict of guilty beyond a reasonable doubt. This would certainly be true of any case brought on the uncorroborated testimony of Michael Flynn, who’s already pled guilty to lying to the FBI.

Rick Gates has also now pled guilty to lying to the FBI; he may or may not have been sufficiently part of the Trump inner circle to provide corroborating evidence against the President, but he was certainly close enough to implicate Paul Manafort. Testimony by Mr. Manafort, corroborating Mr. Flynn’s, would be a nice arrow in the quiver … but I’d still consider it too chancy.

Despite Steve Bannon’s dismissive assessment that Donald Trump, Jr., can be “cracked like an egg,” I would not primarily focus my efforts on Mr. Trump, Jr. in seeking corroboration for any evidence against the President. I’d assume that Mr. Trump, Jr. will never turn on his father since — I think any observer would agree — such disloyalty would cause the President to entirely disinherit him and his children.

Instead, I’d focus on Jared Kushner. Unlike Mr. Trump, Jr., Mr. Kushner doesn’t need the President’s money. If the Mueller Team assembled sufficient evidence against Mr. Kushner to credibly threaten him with conviction of crimes that could result in his spending decades in prison, and I believed that Mr. Kushner could provide corroborating evidence against the President, I’d propose to Mr. Kushner that in return such evidence, Mr. Kushner himself might only have to plead guilty to crimes involving months in a minimum security prison — enabling him to thereafter return to his family and his New York billionaire life. Mr. Kushner’s marriage to the President’s daughter would create a complication, but Ms. Trump might be persuaded to support her husband’s decision to testify if she understood that it was likely that her children might otherwise not see their father, apart from prison visits, until he was eligible for Medicare.

As aptly noted in the movie, You’ve Got Mail, The Godfather is … the I Ching; the sum of all wisdom; the answer to any question.

Not specifically called out in the film, Mario Puzo wrote in the novel:

“[The fictional Don Corleone] … put layers of insulation between himself and any operational act. When he gave an order it was to [the Consigliore] or to one of the caporegimes alone. Rarely did he have a witness to any order he gave any particular one of them …

Between the head of the family, Don Corleone, who dictated policy, and the operating level of men who actually carried out the orders of the Don, there were three layers, or buffers … each link of the chain would have to turn traitor for the Don to be involved …”

If Mr. Mueller and his team are seeking high-level corroboration of evidence against the President, whether they secure it may come down to whether Mr. Trump read The Godfather, or merely saw the movie …

The President and Mr. Mueller

What follows is a note I wrote in mid-July, 2017. As I say at its conclusion: “Opinions are easy; we’ll see what’s borne out”; but if there is evidence that implicates the President and/or his close associates in wrong doing, a graceful withdrawal seems a less available path now than it may have been then …

As all are aware, A.G. Sessions has been under increasing pressure from the President, in large part due to Mr. Sessions’ decision to recuse himself (undisputedly in accord with DOJ rules and procedures) from the Russia investigation. It’s hard to contest that the President’s irritation with Mr. Sessions arises from the President’s belief that Mr. Sessions could have controlled the Russia investigation, and his concern that Mr. Mueller’s probe is, from the President’s point of view, expanding in an unacceptable manner.

As perhaps all are aware, if the President was to get rid of Mr. Sessions, get rid of Mr. Rosenstein (the Assistant A.G. that appointed Mr. Mueller), and then fire Mr. Mueller, a number of legislators of both parties have indicated that Congress would reinstitute a Special Counsel law, place Mr. Mueller in that role, and have him proceed. I had wondered whether there was actually sufficient support to bring that about. What has brought the President’s predicament home to me is the fact that 7 Republican senators – Barrasso, Hatch, Grassley, Graham, Shelby, Tillis, and one on the video I didn’t recognize – went on record yesterday as supporting Mr. Sessions. Together with 48 Democrats, that’s but 5 short of overcoming any attempt to filibuster the bill. It is hard for me to believe that those five votes couldn’t be gathered from Sens. McCain (if he’s around – VERY sad), Burr, “Never Trumpers” Flake and Sasse, Collins and Murkowski, “Little Marco” Rubio (what goes around comes around), and Paul. Sen. McConnell himself is obviously no fan of the President, and wouldn’t want to be “on the wrong side of history.” Although the House isn’t as easily weighed, it’s pretty hard for me to believe that there wouldn’t be a sufficient number of Republicans that “wouldn’t want to be on the wrong side of history” to vote with Democrats for the Special Counsel law; supporters of the measure could all claim that they weren’t voting against the President – simply voting that “the truth should come out,” or some such.

Thus, the advice: Mr. President, you aren’t going to be able to get rid of Mr. Mueller. If there is something illegal in your past – either with Russia, or in your other business dealings – Mueller is going to find it. So if there is, get out now. Those adoring crowds won’t be able to save you. Furthermore, if the conservative media – Fox, Breitbart, Limbaugh, etc. — turns on you (there has been little discussion about the fact that the result of your departure will be Mike Pence – whom the conservatives like better than you), it will feed your base in a way that will ultimately cause it to desert you. Make up a pretext – health, whatever – resign, and go back to the life that you clearly liked considerably better than your current life. The appetite to continue investigation of your activities if you’re out of office – particularly while Republicans control both chambers – will be zilch. It very likely gets both you and Don, Jr. off the hook. Although you’ll leave dangerous loose ends behind – Flynn, for example – you have a reasonable shot of getting clear of this. Go back to New York, start your own network that appeals to your base, whatever. If you stay, and if there’s something to find, you’re lost …

Opinions are easy; we’ll see what’s borne out.

Ann Coulter: Impeachment Law Resource

If you are researching impeachment issues, I recommend as one source conservative commentator Ann Coulter’s 1998 book, High Crimes and Misdemeanors: The Case Against Bill Clinton. I bought the book assuming that Ms. Coulter had argued that the bar for impeachable behavior was pretty low. I wanted to see whether she and the conservative commentators who lauded her scholarship when applied to President Clinton would try to distinguish her arguments if applied to President Trump. Four impressions emerged.

First, Ms. Coulter asserted persuasively that the Founding Fathers considered grounds for impeachment in the American system to be primarily related to a moral standard, not necessarily linked or limited to legally criminal behavior, and that the standard was simply that the official “behave amiss.” She also flatly declared: “Lying is an impeachable offense.” An argument can fairly be made that according to the standard Ms. Coulter outlined, a number of Mr. Trump’s undisputed actions in office would be grounds for impeachment.

Second, her exhaustive allegations of inappropriate behaviors of President and Ms. Clinton stirred lost memories. Ms. Coulter’s accuracy has sometimes been assailed, but if but half of what she recounts is accurate, even those who don’t vigorously oppose the Clintons gain a better appreciation as to why their activities – and their apparent ability to get away with them — so infuriated conservatives.

Third, Ms. Coulter’s recitation of the methods used by the Clinton White House to defend itself seems a literal playbook of the approaches now being used by President Trump and his adherents: aggressive attacks against officials whose careers had theretofore been above reproach; assailing investigators’ alleged motives as a manner to distract from the strength of the evidence they uncovered; decrying leaks; sudden reversals in accounts supported by a cohort of advocates; claims that The New York Times and The Washington Post were biased against the president, etc.

Finally, Ms. Coulter makes a number of declarations about Mr. Clinton that have ironic and disturbing resonance given the circumstances in which we find ourselves today:

“Instead of reflecting Americans’ virtues and aspirations, President Clinton reflects the country’s dark side. He has debased the White House, the administration, and the entire country, not only by what he has done but also by how he has defended himself …. Clinton has done worse than lie: he has told lies that no one can believe, and forced those around him to lie as well. And then he and his cronies have denied not only the facts but even basic standards of decency …. Clinton’s legacy is that he has no shame, no sense of duty or obligation to the country, and no concern for his own reputation.”
“Clinton’s [behavior] has led directly to monstrous ‘factions’ of hypnotized zombies spouting the absurd…. [H]is own lack of integrity has infected the nation …. People who used to say controversial, but not preposterous, things are now having to twist themselves into pretzels to defend him. The line of defense shifts away from protests that the president is innocent to charges that the accusers have bad motives. (Even if their accusations happen to be true.)”
“Ruthless political gamesmanship has overtaken the law and finally overtaken the truth. Politicians are allowed to reshape our understanding of facts and truth, because it’s all just political spin.”
“Clinton draws on every sick theme of our culture to win politically …. Under Clinton the country has grown accustomed to believing that there is no truth.”
“One of the most terrible things [Italics in Original] Clinton has done to the country is to make it respectable to lie.”
“It may sound trite, but truth is all that separates us from the cave. People cannot communicate if they cannot assume that most of what they hear is true. Truth is prerequisite for a society to survive, for capitalism to flourish, and for a system of law to dispense justice, rather than raw power.”

The last quoted passage in particular contains good words, seemingly written from a real sense of outrage (even if the outrage blazed more brightly due to Ms. Coulter’s substantive policy differences with Mr. Clinton). Although I suspect that most presidential historians would indicate that President Clinton was not the first president that may have twisted the truth and it seems pretty indisputable that he hasn’t been the last, what matters now is how and whether we as a people can escape our cycle of tribalism, distortion, and recrimination. As our mothers taught us, two (or more) wrongs don’t make a right. It’s time for us to stop.

If I were President … Gun Control

A Letter to the Editor I have just forwarded to the Wisconsin State Journal:

While I strongly believe that our representatives should be collegial and collaborative in governing, the stalemate over gun violence in our society has gone on years too long. If I were President – recognizing the gauntlet I’d be throwing down to Congress — I would go on TV and read, state by state, the names of the Congressional leadership and all Senators and Representatives that as of the night I spoke were unwilling to vote for aggressive background checks for gun buyers and a ban on the sale of assault weapons.

I would conclude with this: “When one of these horrific incidents happens again – and it will – I’ll be back, reading the names of the Congressional leaders and the members of the Congressional delegation of the state where the incident occurred that refuse today and were refusing on the day of the next incident to support background checks and an assault weapons ban. And then … I’m going to do the same after every future incident until we get appropriate background check and assault weapons ban legislation in place.”

Although President Trump will obviously never do this, we need an approach that will scare legislators more than the NRA.

China’s Softer Foreign Policy

The first paragraph is from a note I wrote in April, 2016; the second paragraph my addendum as of today:

The Wall Street Journal has a fairly long article today on China’s efforts to claim the Scarborough Shoal — rocks, reefs, and such much closer to the Philippines than to China. Such a claim would be a major hindrance to maritime shipping in the South China Sea. The Journal reports — delicately — that we have approached the issue “with caution,” but are starting to step up our response. My interpretation: President Xi smiles a lot, but I think he’s the most dangerous man to our interests in the world [Mr. Putin would like to be, but he’s got too many other problems ;)] … and I candidly think Mr. Xi’s decided to grab as much as he can while President Obama is in power, since the going will likely be rougher when dealing either with Ms. Clinton (has expertise and guts) or Mr. Trump (probably crazily unpredictable).

I haven’t seen anything to discredit my comments about Mr. Xi’s intentions almost two years ago, and Mr. Xi continued to push while Mr. Obama was in office (although Mr. Obama, to his credit, did somewhat overcome his second term gingerliness in foreign affairs and pushed back to a degree in the South China Sea). However, I now add this qualifier: I think China’s efforts to push for strategic advantage have taken a slightly different tack – become more subtle during the last year – once Mr. Xi recognized that Mr. Trump is, by accident or design, reducing America’s leadership role and influence in world affairs (what Richard Haass has somewhat pejoratively termed our “abdication”). Why should China act provocatively when current American foreign policy is creating a vacuum it’s ready to fill?

Hopefully, Delay Wasn’t Opportunity Lost

The Wisconsin State Journal was reporting in the days leading up to the Packers’ selection of Brian Gutekunst (whose name I can’t yet pronounce) as their new General Manager that the Packers had an interest in hiring Seattle General Manager John Schneider. As reported by The Wisconsin State Journal and The Seattle Times, Mr. Schneider, a Wisconsin native, had an out in his Seattle contract until 2016 that would have enabled him to go to Green Bay if he wished. That right was eliminated from his current contract, and Seattle reportedly rejected Green Bay’s request to interview Mr. Schneider for the GB GM role. After that, GB CEO Mark Murphy turned to Mr. Gutekunst.

Mr. Gutekunst may, despite his lack of experience as a General Manager, prove to be an excellent choice for the role; that said, the team clearly had an interest in Mr. Schneider, who already has an excellent track record as a GM. Given the rumblings about former Packer GM Ted Thompson’s performance that predate the expiration of Mr. Schneider’s last contract, let us hope that we don’t find that Mr. Murphy lost a better GM because he waited too long to pull the plug on Mr. Thompson. Of one thing we can be sure: if Mr. Thompson had been in Mr. Murphy’s position, such a delay is not a mistake that Mr. Thompson would have made …

Messrs. Trump and Popeye

Probably my favorite piece of political commentary during the 2016 presidential campaign came in August, 2016, from an MSNBC commentator (don’t recall the name — not one of the anchors): ” ‘I am who I am, and that’s who I am’ worked for Popeye the Sailor Man; it remains to be seen whether it will work for Donald Trump.”

Obviously, it did — at least as far as being elected …

On SCOTUS Nominations

As noted in the correspondence below, I believe that the Senate should consider only two factors in considering a judicial nominee: Is s/he highly qualified? And if so: Is there an objective reason why s/he should not be confirmed (criminal record or indictment, substantiated drug abuse problem, etc.)? The candidate’s substantive views should not play a role. The Constitution gives the President the power to nominate and appoint; the Senate should discharge its duty … consenting to qualified nominees, withholding consent from those that are not. Below are edited versions of letters I sent to Sen. Charles Grassley in March, 2016 and Sen. Tammy Baldwin in February, 2017. Alas, neither agreed with me. In between, there is edited text of an email I sent to a friend in July, 2016. Not being any sort of Constitutional lawyer, I have no idea whether the noise I spouted in that email would have had any legal merit; in any event, Mr. Obama didn’t try it.

March, 2016

In re: Senators’ Consideration of Judge Garland for Supreme Court

Dear Senator Grassley:

I am writing to express my extreme disappointment at the current refusal by you and your Republican colleagues to carefully consider the nomination of Judge Garland – or indeed, any nominee put forth by President Obama – to the Supreme Court. This letter comes from me, not as part of any initiative by any lobbying group.

Both parties talk about “doing the people’s business,” and the Republican Party particularly stresses the need for judges that will abide by the “plain meaning of the Constitution.” I have actually gone back and read Article II, Section 2 of the Constitution. As you well know, it grants the President the power to “…nominate, and by and with the advice and consent of the Senate … appoint … judges of the Supreme Court [Emphasis Added] ….”

I see nowhere in the section any language limiting the President’s powers of nomination and appointment to the first three years of his/her term. Although a time frame for the Senate’s consideration isn’t specified, I doubt that even a strict constructionist would question the drafters’ intent that the Senate consider the qualifications of a candidate for a position at the top of the third branch of the government promptly and impartially. Republican comments I’m hearing about “letting the people speak” are an unfortunate avoidance of duty; the people did speak — in 2012. I’m confident that you would concede (albeit ruefully) that the Republican Party made the President’s power to appoint Supreme Court nominees an issue in the last presidential campaign.

Realizing how naïve this sounds, I truly believe that the Senate should consider only two factors in considering a judicial nominee: Is s/he highly qualified? And if so: Is there an objective reason why s/he should not be confirmed (criminal record or indictment, substantiated drug abuse problem, etc.)? The candidate’s substantive views should not play a role. We elect a President; the Constitution gives him/her the power to nominate and appoint; the Senate should discharge its duty … consenting to qualified nominees, withholding consent from those that are not.

Based upon the position currently being taken by you and your Republican colleagues, any objective observer will conclude that the Republicans like the Constitution when they agree with it … and are just as willing as they claim Democrats are to discount the Constitution when they don’t agree with it. I have no idea whether Judge Garland is qualified; that is for the Senate to determine. However, if he is well qualified and has no other objective impediments, he should be confirmed. [Very truly yours]

July, 2016

There’s an opinion piece in The Wall Street Journal this morning by the President of the United States, decrying the Senate’s unwillingness to hold a hearing on Judge Garland.

Am wondering whether the President could sue the Senate on the theory that the Senate has violated the President’s constitutional right under Article II to appoint Supreme Court Justices by its failure to provide any advice or consent (i.e., no hearing) within a reasonable time after the President made his nomination. No matter what the disposition at the lower court levels, it would obviously (and wildly interestingly) reach the 4-4 Court … and it seems [at least to me 😉 ] that there would be some chance that either Roberts or Kennedy (or both) would find that the Senate does have a duty to hold hearings and vote on a President’s nominee within a reasonable time …

Doesn’t mean Garland would be confirmed — he almost certainly wouldn’t be; and at this late date, by the time the claim wound its way through the court levels, the issue would be moot … but am disappointed that Obama didn’t bring the claim …

February, 2017

In re: Standard for Assessment of Judge Gorsuch

Dear Senator Baldwin:

Although I have limited hope that you will heed this request, I am compelled to make it: please review the qualifications of Judge Gorsuch fairly and impartially, and base your vote to confirm or reject upon objective criteria rather than upon the nominee’s substantive views.

I consider the Senate Republicans’ refusal to hold hearings on Judge Garland’s nomination (nor – unless unexpected issues had surfaced – to have confirmed him) a dereliction of their duty. Furthermore, I am pretty darn confident that I would have been more comfortable with Judge Garland’s contributions to the Supreme Court than I will be with Judge Gorsuch’s.

That said, I now urge you to adopt this approach toward Judge Gorsuch’s and any future nominations to the Supreme Court that come before you: Is s/he highly qualified? And if so: Is there an objective reason why s/he should not be confirmed (criminal record or indictment, substantiated drug abuse problem, etc.)? As naïve as I realize this sounds, the nominee’s substantive views should not play a role. We elect a President; the Constitution gives him/her the power to nominate and appoint; the Senate should discharge its duty … consenting to qualified nominees, withholding consent from those that are not.

[Even so, if I was on the Senate Judiciary Committee, I would not be able to resist asking Judge Gorsuch these questions during his hearing: Based upon his own knowledge of Judge Garland’s jurisprudence, does he consider Judge Garland qualified to sit on the Supreme Court? And: Although Judge Gorsuch is a literalist, are there instances that he would apply a “reasonable time” standard to a constitutional duty even if none is expressed in the document?]

Although many are disheartened by many of the actions President Trump has taken since assuming the presidency, under the Electoral College system we use, the people have spoken.

As President Obama said toward the end of his term: elections matter, and if a voter doesn’t like a result, s/he should “grab a clipboard” and start organizing and/or running for office. Paraphrasing Ms. Obama: Government needs to go high. Process and performance of duty matter. In the last round, he won; she lost. Elected officials shouldn’t indulge in the luxury of letting their instincts or emotions govern the performance of their responsibilities. [Very truly yours]