Conclusion To The Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment”

Jonathan Turley ended his epic testimony before the House Judiciary Committee with a flourish. His whole statement was remarkable, leaving no reasonable argument for impeachment standing—but then the now-insatiable desire to undo the 2016 election has never been rational, and it has relied, despicably, on the historical and legal ignorance of the vast majority of the American people. Turley provided an opportunity for responsible citizens to educate themselves: his language was easy and clear, and there were no pompous or especially academic turns of phrase. Nonetheless, few will read or watch the whole thing, allowing the news media, which has exceeded all previous villainy in this three-year long fiasco, to distort and minimize his patriotic achievement. To the degree that they succeed, it is do the detriment of the nation, and its future. Somehow, Turley makes this clear as well, yet does so without the kind of alienating condemnation that I, in his position, would be unable to resist.

No doubt about it, the professor is a far better scholar and advocate than I am, and a brilliantly talented teacher as well. Still, he made me feel good about the analysis I have been presenting here since 2016. I have studied Presidential history for a shockingly long time; I know my impeachment history well, and observed two of the three previous inquiries up close, live and carefully. I have been certain, certain, from the beginning that what we have seen here is an unprecedented crypto-coup, for virtually all the reasons Professor Turley explains. I’m glad to have the legal authority and the meticulous tracking of where the inquisition ran off the rails, but Turley validated the analysis I have  given readers here. That came as a relief and a confirmation.

It was naturally a special pleasure that the professor ended his testimony by referencing the scene in the video above, from “A Man for All Seasons,” my favorite ethics moment in any movie, and the clip most often used on Ethics Alarms. He also referenced the story of the Republican Senators who turned on their party and voted to acquit President Andrew Johnson, for me the most memorable chapter of “Profiles in Courage,” the book that introduced me to the topic of ethics when I was 12 years old. Turley quotes one of the Senators who was only slightly mentioned by credited author John Fitzgerald Kennedy, but it’s a stirring quote, and damn any politician or citizen who ignores its message.

Lyman Trumbull (R- Ill.) explained fateful decision to vote against Johnson’s impeachment this way:

“Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes … no future President will be safe who happens to differ with the majority of the House and two-thirds of the Senate …I tremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me…”

Those who endanger the future of my country because of their unrestained anger, hate, confirmation bias, partisan loyalty, prejudice, need to conform, and yes, ignorance and their lack of education, are contemptible. Those who lead them in pursuit of power are worse.

[Turley’s entire statement, with footnotes, is here. The Ethics Alarms edited version is here (Part I); here (PartII); here (Part III); here (Part IV), and here (Part V.) The video is here.]

***

V. CONCLUSION

Allow me to be candid in my closing remarks. I get it. You are mad. The President is mad. My Democratic friends are mad. My Republican friends are mad. My wife is mad. My kids are mad. Even my dog is mad . . . and Luna is a golden doodle and they are never mad. We are all mad and where has it taken us? Will a slipshod impeachment make us less mad or will it only give an invitation for the madness to follow in every future administration?

That is why this is wrong. It is not wrong because President Trump is right. His call was anything but “perfect” and his reference to the Bidens was highly inappropriate. It is not wrong because the House has no legitimate reason to investigate the Ukrainian controversy. The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.

It is not wrong because we are in an election year. There is no good time for an impeachment, but this process concerns the constitutional right to hold office in this term, not the next.

No, it is wrong because this is not how an American president should be impeached. For two years, members of this Committee have declared that criminal and impeachable acts were established for everything from treason to conspiracy to obstruction. However, no action was taken to impeach. Suddenly, just a few weeks ago, the House announced it would begin an impeachment inquiry and push for a final vote in just a matter of weeks. To do so, the House Intelligence Committee declared that it would not subpoena a host of witnesses who have direct knowledge of any quid pro quo. Instead, it will proceed on a record composed of a relatively small number of witnesses with largely second-hand knowledge of the position. The only three direct conversations with President Trump do not contain a statement of a quid pro quo and two expressly deny such a pre-condition. The House has offered compelling arguments why those two calls can be discounted by the fact that President Trump had knowledge of the underlying whistleblower complaint. However, this does not change the fact that it is moving forward based on conjecture, assuming what the evidence would show if there existed the time or inclination to establish it. The military aid was released after a delay that the witnesses described as “not uncommon” for this or prior Administrations. This is not a case of the unknowable. It is a case of the peripheral. The House testimony is replete with references to witnesses like John Bolton, Rudy Giuliani, and Mike Mulvaney who clearly hold material information.

To impeach a president on such a record would be to expose every future president to the same type of inchoate impeachment. Continue reading

Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART V]

Note the date…

In his final section before concluding, Professor Turley covers other theories being floated as justification for impeachment, and finds them startlingly weak and contrived.

The Hill has Turley’s lament regarding the  the Alliance of Unethical Conduct’s attacks on his thorough and objective dismantling of their coup efforts. (The AUC—that’s the Ethics Alarm shorthand for the Democratic Party-“resistance”-mainstream media alliance to remove Trump from office by any means possible, not Turley’s.)  He writes,

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached….

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts…. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments…. … Democrats have argued that they do not actually have to prove the elements of crimes…. In the Clinton impeachment, the crime was clearly established and widely recognized…. [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger…. 

Writes Ann Althouse in a post yesterday, “it seems to me that the real impeachable offense has always been that Donald Trump got himself elected.”

I wish Prof. Turley had dealt with that, the real justification, in their minds, for the House’s impeachment push.

Back to the professor:

C.  Extortion.

 As noted earlier, extortion and bribery cases share a common law lineage. Under laws like the Hobbs Act, prosecutors can allege different forms of extortion. The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.”85 Even if one were to claim the loss of military aid could instill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined.

Instead, it would presumably be alleged as extortion “under color of official right.” Clearly, both forms of extortion have a coercive element, but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations. The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.”87

As shown in cases like United States v. Silver, extortion is subject to the same limiting definition as bribery and resulted in a similar overturning of convictions. Another obvious threshold problem is defining an investigation into alleged corruption as “property.” Blackstone described a broad definition of extortion in early English law as “an abuse of public, justice which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.”89 The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.90 In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.

The theory advanced for impeachment bears a close similarity to one of the extortion theories in United States v. Blagojevich where the Seventh Circuit overturned an extortion conviction based on the Governor of Illinois, Rod Blagojevich, pressuring then Sen. Barack Obama to make him a cabinet member or help arrange for a high- paying job in exchange for Blagojevich appointing a friend of Obama’s to a vacant Senate seat. The prosecutors argued such a favor was property for the purposes of extortion. The court dismissed the notion, stating “The President-elect did not have aproperty interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).” In the recent hearings, witnesses spoke of the desire for “deliverables” sought with the aid. Whatever those “deliverables” may have been, they were not property as defined for the purposes of extortion any more than the “logrolling” rejected in Blagojevich.

There is one other aspect of the Blagojevich opinion worth noting. As I discussed earlier, the fact that the military aid was required to be obligated by the end of September weakens the allegation of bribery. Witnesses called before the House Intelligence Committee testified that delays were common, but that aid had to be released by September 30th. It was released on September 11th. The ability to deny the aid, or to even withhold it past September 30th is questionable and could have been challenged in court. The status of the funds also undermines the expansive claims on what constitutes an “official right” or “property”:

“The indictment charged Blagojevich with the ‘color of official right’ version of extortion, but none of the evidence suggests that Blagojevich claimed to have an ‘official right’ to a job in the Cabinet. He did have an ‘official right’ to appoint a new Senator, but unless a position in the Cabinet is ‘property’ from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not ‘property’ in the hands of a  public  agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”

A request for an investigation in another country or the release of money already authorized for Ukraine are even more far afield from the property concepts addressed by the Seventh Circuit.

The obvious flaws in the extortion theory were also made plain by the Supreme Court in Sekhar v. United States, where the defendant sent emails threatening to reveal embarrassing personal information to the New York State Comptroller’s general counsel in order to secure the investment of pension funds with the defendant. In an argument analogous to the current claims, the prosecutors suggested political or administrative support was a form of intangible property. As in McDonnell, the Court was unanimous in rejecting the “absurd” definition of property. The Court was highly dismissive of such convenient linguistic arguments and noted that “shifting and imprecise characterization of

the alleged property at issue betrays the weakness of its case.”94 It concluded that “[a]dopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. That we cannot do.”95 Nor should Congress. Much like such expansive interpretations would be “absurd” for citizens in criminal cases, it would be equally absurd in impeachment cases.

To define a request of this kind as extortion would again convert much of politics into a criminal enterprise. Indeed, much of politics is the leveraging of aid or subsidies or grants for votes and support. In Blagojevich, the court dismissed such “logrolling” as the basis for extortion since it is “a common exercise.” If anything of political value is now the subject of the Hobbs Act, the challenge in Washington would not be defining what extortion is, but what it is not.

D.  Campaign Finance Violation

Some individuals have claimed that the request for investigations also constitutes a felony violation of the election finance laws. Given the clear language of that law and the controlling case law, there are no good-faith grounds for such an argument. To put it simply, this dog won’t hunt as either a criminal or impeachment matter. U.S.C. section 30121 of Title 52 states: “It shall be unlawful for a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”

On first blush, federal election laws would seem to offer more flexibility to the House since the Federal Election Commission has adopted a broad interpretation of what can constitute a “thing of value” as a contribution. The Commission states “’Anything of value’ includes all ‘in-kind contributions,’ defined as ‘the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.’” However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation. This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a “thing of value” under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors. Such a decision would highlight the danger of claiming criminal acts, while insisting that impeachment does not require actual crimes. The “close enough for impeachment” argument will only undermine the legitimacy of the impeachment process, particularly if dependent on an election fraud allegation that itself is based on a demonstrably slipshod theory. Continue reading

The Forgotten Ethics Hero: William Ruckelshaus (1932-2019)

I’m supposed to be student of American Presidential history, and even I had virtually forgotten about William Ruckelshaus, who just died. It was Ruckelshaus who, along with Attorney General Elliot L. Richardson,  rejected Ethics Rationalization #15, The Futility Illusion or  “If I don’t do it, somebody else will” when the United States of America needed a hero, and got two.

His moment of courage arrived on an October night in 1973 destined to be known in the annals of American history as  the “Saturday Night Massacre.” Ruckelshaus was then Assistant Attorney General, and President Richard Nixon, was panicked that the ongoing investigation by Special Watergate prosecutor Archibald Cox was closing in on his blatant obstruction of justice. A White House-triggered burglary of the Democratic National Committee’s offices at the now-famous Foggy Bottom condo complex and hotel in Washington, D.C., seemed about to bring Nixon down, so Nixon resolved to have cripple the investigation by having Cox removed.  Ruckelshaus was the second of three officials the beleaguered POTUS ordered to fire the Harvard law professor. For some reason Nixon thought this might relieve him from having to produce the  nine incriminating Oval Office tape recordings that Cox had subpoenaed.

Ruckelshaus, under Nixon the first head of the new Environmental Protection Agency,  had been named acting head of the FBI in April of 1973, replacing L. Patrick Gray III. He was soon named the top deputy to Attorney General Elliot L. Richardson. When Nixon ordered the mild-mannered Richardson to fire Cox that fateful night, Richardson shocked Nixon by refusing, and resigning immediately. That made Ruckelshaus the Acting Attorney General, and he was suddenly on the hot seat, tasked with carrying out Nixon’s legally and ethically questionable orders.

Cox had been guaranteed complete independence by Nixon and Attorney General Richardson during the prosecutor’s Senate confirmation hearings in May of 1972.  Congress directed that he could be  be removed only for “gross malfeasance” in office, and by October 20, 1973, there had been none. “I thought what the president was doing was fundamentally wrong,” Ruckelshaus said  later. “I was convinced that Cox had only been doing what he had the authority to do; what was really of concern to the President and the White House was that he was too close. He hadn’t engaged in any extraordinary improprieties, quite the contrary.” Continue reading

The Waffle House Ethics Heroes

I increasingly find myself searching, usually in vain, for stories to reassure myself and Ethics Alarms readers that out society, in the words of the pious churchgoers of Rock Ridge, isn’t “turning into shit.” Here is story out of Alabama involving a Waffle House. I’ve never eaten at one, though there has been a Waffle Shop down Russell Road in Alexandria, VA, less than five minutes from my home by car, the entire 39 years I’ve lived here. The fact that its awning has misspelled “Waffle” with only one “f” for all that time is the reason: I figure that it you can’t spell your own specialty, I can’t trust you to make it right, either.

But I digress…

At a  Birmingham, Alabama Waffle House  on the morning of November second, an estimated 25 customers found that the restaurant had only a single employee named  Ben on duty to serve the whole mob. Apparently there had been a scheduling snafu, leaving Ben with the responsibility of serving everybody. Said one witness to the scene, . “He was just staring at the room full of people. I can’t imagine what he was thinking.”

Then one customer who had been sitting at the bar, asked Ben what was going on and received the answer. He stood up, asked for an apron, and  started washing dishes. A few minutes later a female customer left her table and began bussing those of other partons, taking and serving orders, and making coffee. Then a third customer joined the volunteer staff. Continue reading

Ethics Warm-Up, 11/5/2019: A Whistleblower’s Biases, A Technology’s Risks, And A Thinking Actor’s Values

Hi!

1. So now we know…The mysterious “whistleblower” is almost certainly Eric Ciaramella,  a CIA analyst, former National Security Council staffer,  and  a career intelligence officer.who has served in both the Obama and Trump administrations. It would have been nice and reassuring if he were not so strongly tied to the Dark Side, meaning the Democrats and various “resistance” figures, but he is. That doesn’t mean he had an agenda, but somehow all of the leakers and rebels who have been instrumental in keeping the Left’s coup fires burning have aspects of their backgrounds that justify skepticism.

From the generally useful and fair article about in Heavy:

Ciaramella has worked for the Central Intelligence Agency for several years and was assigned to the White House during the end of the Obama administration. He worked closely with Biden in his role as an expert on Ukraine. Ciaramella also has ties to Sean Misko, a former NSC co-worker who now works for Representative Adam Schiff and the Intelligence Committee. According to The New York Times, the whistleblower first went to a CIA lawyer and then to an unnamed Schiff aide before filing the whistleblower complaint. The aide told the whistleblower to follow the formal process, but conveyed some of the information he learned from him to Schiff, without revealing his name, The Times reported.

“Like other whistle-blowers have done before and since under Republican and Democratic-controlled committees, the whistle-blower contacted the committee for guidance on how to report possible wrongdoing within the jurisdiction of the intelligence community,” said Patrick Boland, a spokesman for Schiff, told The Times.

The whistleblower’s ties to Democrats, including Biden, Schiff, former CIA Director John Brennan, former Director of Intelligence James Clapper and former National Security Adviser Susan Rice, have created controversy, with Trump and Republicans using his past work with them in an attempt to discredit him.

I did say generally fair. The fact that this guy who created the path to the latest impeachment excuse just happens to be a Democrat with connections to a veritable nest of anti-Trump zealots does and should discredit his objectivity to some extent. An “attempt” shouldn’t be necessary.

2.  Geewhatasurprise…. From the MIT Technology Review:

A study published today in JAMA Pediatrics warns that kids’ literacy and language skills suffer with screen use, and MRI scans of their brains appear to back up the findings…. Forty-seven 3- to 5-year-olds took a test to measure their cognitive abilities, and their parents were asked to answer a detailed survey about screen time habits. …The scans revealed that kids who spent more time in front of screens had what the authors call lower “white matter integrity.” White matter can be roughly thought of as the brain’s internal communications network—its long nerve fibers are sheathed in fatty insulation that allows electrical signals to move from one area of the brain to another without interruption. The integrity of that structure—how well organized the nerve fibers are, and how well developed the myelin sheath is—is associated with cognitive function, and it develops as kids learn language. …Lead author John Hutton of Cincinnati Children’s Hospital told MIT Technology Review there’s a clear link between higher screen use and lower white matter integrity in the children his team studied. That structural change appears to be reflected in the results of the cognitive test the kids took as well, which showed high screen time associated with lower levels of language and literacy skills. “The effect size is substantial, as these findings also rigorously controlled for multiple comparisons across the brain,” Hutton says.

One easy and ethical remedy would be for parents to make sure their kids don’t see them constantly staring at their phone.

3.  A terrific, ethical, extemporaneous speech from Richard Dreyfus. No, Richard Dreyfus is not, and has never been, a typical Hollywood knee-jerk leftist. Glenn Beck’s conservative website “The Blaze” was “astonished” when actor/educator Richard Dreyfus recently told Fox News host Tucker Carlson,

“You were talking about the speakers on university campuses. And I am totally, incontrovertibly on your side about this. I think any intrusion into freedom of speech is an intrusion into freedom of speech. And when one of the presidents of one of the colleges said, ‘this is a school, not a battlefield,’ I said, no, it is a battlefield of ideas and we must have dissonant, dissenting opinions on campuses and I think it’s political correctness taken to a nightmarish point of view

I have withdrawn from partisan politics. I am a constitutionalist who believes that the Constitution and the Bill of Rights must be central and the parties must be peripheral. What’s most important for me is what you just mentioned haphazardly, we are over 30. Civics has not been taught in the American public school system since 1970. And that means everyone in Congress never studied the constitution and the bill of rights as you and I might have. And that is a critical flaw because it’s why we were admired and respected for so long, it gives us our national identity, it tells the world who we are and why we are who we are, and without a frame that gives us values that stand behind the bill of rights, we’re just floating in the air and our sectors of society are not connected.

What’s really important is that the assumptions of the left and the right are all skewed wrong. We have to find areas of agreement and areas that we share. And we do share the notion that education accomplishes certain things. One, it turns students into citizens. And, two, it teaches students how to run the country before it’s their turn to run the country. And, three, it teaches the values of this nation.

People come from all over the world or are born into this nation without the values that we have here. That’s why they came here, to get them. And what are they? You can put them in opportunity, rise by merit, mobility, and freedom. That’s what we sell. And if you don’t want that, you’ve chosen the wrong place. And you don’t get a pass by being born here, you have to learn it. Even the Ten Commandments are not known at birth. You must learn them. And we must learn our values and if we don’t, we are fatally, fatally wounding ourselves. We will not have any way to really combat the ideas behind ISIS because we won’t know our own. And we have to.

Exactly.

Fox News should give Dreyfus a show.

Ethics Hero: Washington Nationals Catcher Kurt Suzuki

So it’s come to this. A professional athlete now qualifies as an Ethics Hero for expressing respect and admiration for the President of the United States while being honored at the White House.

Good job, everybody!

Yes, this is emblematic of the harm “the resistance” has inflicted on the nation and the culture. During a ceremony on the South Lawn, the President Trump introduced a number of Nationals players and invited them to the podium. Asked by Trump Suzuki to “say a couple words,” the Nats catcher pulled out his MAGA hat and put it on, prompting the President to shout, “I love him!” and to give him a hug.

Of course, this spontaneous moment triggered a meltdown among the Axis of Unethical Conduct, especially on social media. Suzuki’s twitter feed transformed into an orgy of hate. Apparently furious that the Capital’s baseball team had the gall to be respectful to its most important resident, a doctored video circulated on Twitter supposedly showing star pitcher and World Series MVP Stephen Strasburg snubbing President Trump by not immediately shaking the president’s hand after speaking. Strasburg  quickly declared the deceptively edited clip “fake news,” and sure enough, the real footage confirms Strasburg shook hands with the President at the podium. Continue reading

Ethics Hero: McDonald’s

 

Neat, clean, unambiguous: Katie Hill take notice.

McDonald’s has either fired CEO Steve Easterbrook or forced him to resign (it’s unclear which)  after it was determined that he had a sexual relationship with an employee, and thus a subordinate.  The relationship was determined to be “consensual,” to the extent a non-workplace, intimate relationship with a superior who controls your livelihood and professional advancement can ever be regarded as truly consensual. The position of Ethics Alarms is that it can not be; this was once the official position of the National Organization for Women until the principle threatened the tenure of Bill Clinton in the White House, whereupon Gloria Steinem suddenly declared that such relationships were swell.

“Mickey D’s” Board of Directors found Easterbrook had “demonstrated poor judgement,” the company announced today, and had violated written company policy. Easterbrook, 52 years old, had seen the company’s shares nearly double  in value since he became chief executive in March 2015.  The board therefore definitively rejected the King’s Pass, sending an unequivocal message to other managers that treating the workplace as their personal dating bar wouldn’t be tolerated no matter how important they were or how effective they were at their jobs.

Good. Continue reading