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:

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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]

 

An Open Letter to my Conservative Friends

Although many may disagree, I think that there is a better than even chance that Special Counsel Robert Mueller’s team will present genuine evidence of wrong doing by the President and/or his aides.  Assuming for a moment that this prediction is accurate, each of us citizens will have to assess – critically and impartially – whether the evidence is sufficient, in light of our national value system and the rule of law, to warrant Mr. Trump’s impeachment and/or the conviction of his associates.  I consider Republican Senator Barry Goldwater’s advising President Nixon that based on the tapes’ evidence, he would vote to impeach Mr. Nixon, one of America’s finest moments — provided by someone that was an American first, a Republican second.

In making our individual assessments as citizens, we will need to think critically.  We need to work to get accurate information.  Too many of our people spend all their time in propaganda silos.  We need to not only passively absorb information, but to assess its quality – in part, by assessing the motives behind the purveyors of the reports.

I am concerned that among the significant hazards we will face as this process unfolds are the shows that purport to be news.  I once heard a liberal commentator call Fox News “comfort food for the Right” – and he’s correct.  Fox stirs up its viewers’ emotions by telling them what they want to hear:  “It’s all the Left’s and Democrats’ fault.”  What the liberal talking head didn’t say is that MSNBC has made itself “comfort food for the Left.”  MSNBC, like Fox, stirs up its viewers’ emotions by telling them what they want to hear:  “It’s all the Right’s and President Trump’s fault.”

Why do these outlets do this?  For the money. I don’t suggest that their senior managements are not respectively fundamentally liberal or conservative, but they exaggerate any point to stir up their constituencies because they’re in the entertainment business.  Like ESPN and the Hallmark Channel, they give their viewers what they want to see (nobody wants to see a wrestling match on the Hallmark Channel).  The alt-right and far-left sources are even more dependent on feeding their followers what they want to hear – fair or not.

Too many of our politicians are now no better.  I think that Americans of all political persuasions mostly agree that what has come to drive too many of our representatives over the last decades is not what’s good for America, but what will keep them in their hallowed jobs (if they lose, they again become regular folks like the rest of us).  What keeps them in office is … campaign money.  Unfortunately, the most partisan rich on both sides primarily fund these campaigns.  As we’ve seen over the last year, a disturbing – to me, terrifying – number of our politicians will spout virtually anything, will denigrate anything, in favor of a particular partisan view – for their good, not ours.

No matter whether we’re liberal or conservative, we’re letting them – the cable TV networks, the social media blasts, the politicians – anaesthetize us with what we want to believe.  When visiting a car dealership, how much more prone is one to believe the salesman when he says, “I’m giving you a really good deal,” when you want that car that he’s selling?  When you have two or three models/dealerships in mind, how much more objective are you?  When those salesmen say, “It’s a great deal,” how much more likely are you to say to yourself, “This guy is just selling me because it puts money in his pocket.”?  In politics as in car sales, why should our people uncritically accept the word of somebody whose livelihood is directly tied to telling them what they want to hear?  Those of us with a few years behind us are painfully aware that many times, the person that tells us what we don’t want to hear … is right.

None of this is particularly controversial.  What follows might be.

What makes us best able to exercise and protect our rights as citizens?  I would submit that freedom of the press, fair criminal justice mechanisms, and a respected independent judicial system are paramount.

The Press first:  Although I have little good to say above about TV cable and social media outlets, I believe we need to trust in reputable newspapers.  A newspaper’s lifeblood is information, not entertainment.  While local papers necessarily specialize in reporting on community affairs, we Americans are fortunate to have three great national publications:  The New York Times, The Washington Post, and The Wall Street Journal.  On their opinion pages, obviously two skew liberal and one conservative.  That said, on their news pages, each can be wrong – but each has too much at stake to intentionally deviate from the truth.

The Times has been the chronicler of the American experience since 1851.  At bottom, it cares most about its tradition for comprehensive accuracy.  By maintaining its tradition, it will survive Mr. Trump as it has his 31 immediate predecessors.  The Post most cares about maintaining quality commensurate to the Times.  In its last historic dispute with a President about the accuracy of its reporting, the Post was correct, and the President was lying.  The Journal’s readers demand accuracy to effectively run their businesses.  Although the Murdoch family controls both the Journal and Fox News, the family obviously understands that Journal readers are seeking information, while Fox News viewers are seeking entertainment.

I would offer that it doesn’t matter which of the three a citizen chooses to follow – but the citizen needs to carefully read the news accounts of one to competently assess the Constitutional challenges that our nation may soon face.

Prosecutors and Law Enforcement Agencies Next:  I have found the Right’s recent attacks on Mr. Mueller and the FBI to be extremely disappointing and dangerous.

Putting aside the facts that Mr. Mueller is a Republican, that he was appointed FBI Director by a Republican, that he was appointed to his current post by an official of the Trump Administration, that no credible anti-Trump motive has been attributed to him, and that his team has already obtained two guilty pleas, place yourself in Mr. Mueller’s position:  What would be most important to you if you had to discharge his duties?  For me, the enormity of the importance of the task would immediately extinguish any personal feelings, pro or con, I had about the President, his aides, or his policies.  Since the way I performed this task would be my legacy — the first line in my obituary — what would drive me wouldn’t be the result, but whether History (and my grandchildren) would be able to look back and say that I had performed my responsibilities competently, impartially, honorably, and honestly.  If that reaction resonates, why would one think that Mr. Mueller would feel differently?  I would suggest that only absolute partisans are unable to attribute other than partisan motivations to others.

As to the FBI, I am concerned that we have become so toxic and tribal that only winning matters – that either side is willing to try to make “black equal white” if it suits its particular narrative.  While one can certainly argue that James Comey made missteps as Director, presumably even the President’s most ardent defenders recognize that Mr. Comey’s announcement, 10 days before the election, that he was reopening the Clinton email investigation helped Mr. Trump and harmed Ms. Clinton.  This was clearly not the action of a Clinton/Democratic loyalist.  At a larger level, I would submit that any citizen that pauses to reflect will recognize that people attracted to positions at the FBI place a high store on law and order – generally Republican inclinations.  To think that the FBI is populated with politically partisan liberal do-gooder Democratic loyalists defies everything that those of us with a bit of gray in our hair viscerally know to be true.  I believe that we would be best served by letting the FBI do its job, and objectively assess the evidence it gathers.

Finally, our Judicial System:  Given my lifetime as a lawyer, Mr. Trump’s treatment of Judge Curiel in the Trump University case – in which the President challenged the Judge’s impartiality simply because of his Mexican heritage — fills me with the deepest foreboding (from more than one perspective).  In this context, the damage that the President and his defenders could do, purely for partisan advantage, by impugning the standing, integrity, impartiality, and competence of our court system and of the judges hearing any cases involving members of the Trump Administration, simply can’t be overstated.  Lawyers know that the vast majority of federal judges – whether appointed by Republicans or Democrats – are competent, diligent, and try their best to “get it right.”  The fact that a judge rules against a litigant doesn’t mean that the judge is wrong or biased.  Our judicial system is the envy of the world – which is why the Russians, the Chinese, and others who don’t adhere to our values invest here.  They know that despite the differences in our respective political systems, they’ll get a fair shake in our courts.  I have seen a commentator on the Right question our Grand Jury system through which prosecutors, including Mr. Mueller, secure indictments; in fact, the Grand Jury system was established in the Fifth Amendment as an additional protection to shield citizens against unfair prosecutions.  Finally, any citizen with common sense will readily realize that a system that some feel is too lenient on defendants – many of them indigent – won’t be unfairly harsh on individuals with millions to spend on excellent defense lawyers and a cohort of people pressing their innocence.

In High Crimes and Misdemeanors, written in the late ‘90’s regarding President Clinton’s behavior while in office, conservative pundit Ann Coulter argued 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 bar for impeachable behavior was pretty low – that the official “simply behave amiss.”  The argument can fairly be made that according to the standard Ms. Coulter outlined, a number of the undisputed actions that Mr. Trump has taken while in office would be grounds for impeachment.  President Trump was validly elected in 2016.  Should he be impeached?  Should any of his associates claiming innocence be found guilty of crimes?  Today, I … have no opinion.  Although it will be up to members of Congress and juries to make the official determinations respectively regarding impeachment and criminal culpability, I’ll form my own opinion when, based upon reports provided by reputable news sources, I’ve had a chance to critically consider any evidence presented by our competent and honorable prosecutors and law enforcement agencies and the fruits of any judicial due process conducted through our envied court system.  I hope all of our citizens, regardless of political leanings, will do the same.  The future of our nation may depend on it.