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

Laws Aren’t Enough: Compassion, Prudence, Proportion And The Golden Rule Must Also Be In The Equation

Here is a cautionary tale out of Great Britain,  whose ethics comprehension appears to have gone into a tailspin.

In Manchester, England about a year ago, Jamie Griffiths , then a 19-year-old male student, reached out and  touched a 17-year-old female classmate’s arm while they were both walking along a city street during the day. Jamie explained to police, which the young woman contacted because of the incident, that he had just wanted to get her attention, introduce himself, and maybe “make a friend.”

Instead, the woman claims, the spontaneous encounter quickly spiraled out of control. As she told the court, according to The Manchester Evening News,

“I was just set on getting home and [reviewing] for my mock exams, but as I was coming over the bridge I saw him facing a hedge and I thought it was really weird. He wasn’t doing anything. He was just facing the hedge, staring at it. As I walked towards him, I was watching him and he suddenly swung round so he was facing me. I remember it happening fast. As soon as he moved, I moved, and I said: ‘stop’ and he touched me on my arm. I sort of jolted out of the way and I went into the road to avoid him and he very quickly walked away…I forgot about it for a while because I had my exams. I just thought it was weird behavior.” She went to the police and reported the episode. Then there was a second. This time, the 17-year-old was was walking to school when Griffiths walked in front of her and touched her side, staying in contact, she said, for about three seconds. “He smirked at me, he didn’t stop, he just touched me and walked off and I broke down crying in the street—it was quite traumatic.”

She and her mother filed a crime report. The student was traumatized by the encounters, she says. “Every time I started working I would cry because I would think of it. I felt very unsafe, even in my own home.”

A magistrate convicted Jamie Griffiths of two charges of sexual assault, accepting the young woman’s assessment that there was “no doubt” that had she not moved away from him that first time he touched her arm, he would have gone on to touch her breast. “The complainant’s evidence was very clear, logical and without embellishment,” the magistrate told the defendant. “We can think of no motivation for you to touch the victim other than sexual. Had she not taken evasive action the assault was likely to have been even more serious.” Continue reading

The Return Of The Finger Gun

 

If finger guns are made illegal, only those with fingers will have guns. No, wait..if fingers that can be be made into guns are illegal, only criminals will have fingers. No, that can’t be right…

I cannot resist posting this right after the previous post.

The last time Ethics Alarms discussed punishing children for making finger guns was in 2013. A six-year-old boy in Maryland’s ultra-progressive Montgomery County was suspended from school for making a finger and thumb gun gesture.

This came at the height of post-Sandy Hook anti-gun hysteria, though that was no excuse. I concluded the post,

This is, in order of importance,

  1. Child abuse. This young boy is being treated like a wrongdoer because the adults around him are acting like babies. Will they suspend him for making really scary faces next? Biting his pizza slice into threatening shapes?
  2. Proof of incompetence on the part of the school administrators. Why incompetence? They are stupid, that’s why. Only certifiably stupid people would think it is fair, sensible or reasonable to punish a first-grader for making a gesture kids have been making on playgrounds for hundreds of years, without a single casualty.
  3. Why many people lose respect for anti-gun zealots early in life. They forfeit all respect by acting like ninnies.

The dismaying aspect of this is ridiculous episode is that it has happened before in other schools, and clearly the message wasn’t sent clearly enough to the previous offenders–that is, the fools who victimized innocent children for miming, drawing or otherwise suggesting guns—that this kind of conduct is a career-ender. It should be; it has to be. Such irrational fearfulness, bad judgment, panic, disregard for the sensibilities of the young, lack of proportion and brain dysfunction forfeits all right to trust, and such fools must not be allowed to have power over young bodies and minds.

Nevertheless, it has happened again. Continue reading

Australia Goes Right Past Nanny State To Dog-Walker State

The new Australia law’s sponsors…

And all you thought they would do to stomp on individual rights  was to take away everyone’s guns! No, that was signature significance, you see. A state that decides that it, and not its citizens, should decide how they get to protect themselves is not going to stop with that. As Clarence Darrow said in the Scopes Trial, “Fanatacism is ever busy and needs feeding.  Always it is feeding and gloating for more.”

Down Under they just passed something called the the Animal Welfare Legislation Amendment Bill. Among its provisions is one that holds that dog owners can face heavy  fines if they keep their dog confined for 24 hours. Unless they then allow the dog to  “move freely” for the next two hours or face prosecution. That’s just a sample, however: the Australian Capital Territory’s new law says…

A person in charge of an animal commits an offence if the person fails to give the animal —

  • (a) appropriate food; or
  • appropriate water;
  • appropriate treatment for illness, disease or injury; or
  • appropriate shelter or accommodation; or
  • a clean and hygienic living environment; or
  • appropriate grooming and maintenance; or
  • appropriate exercise; or
  • appropriate opportunities to display behaviour that is normal for  the animal; or
  • care that is appropriate for the animal’s well-being.

No vagueness there! Maximum penalties include heavy fines , imprisonment for up to a year, or both. The territory is the first jurisdiction in Australia to recognize animal sentience, which apparently means the legislators let dogs write the legislation. Not smart dogs, either. Basset Hounds maybe. Irish setters.

Here are the particulars on dog-walking: Continue reading

Sunday Ethics Warm-Up, 8/4/2019: Mass Shootings, Teddy’s Grace, Skaters’ Peril, California’s Cheat

“Never on a Sunday” just doesn’t apply to the ethics biz.

Historical note: in 1960, the English language version of the title song from the hist Greek comedy “Never on a Sunday” was constantly on the radio. My friends were singing it; the song won the Oscar for Best Song. Nobody seemed to mind, or bothered to tell all the kids singing the cheerful earworm, that the song was about a prostitute who wouldn’t accept payment to be boinked on a Sunday. The translated song’s word “kiss” was a euphemism.

1. That bastion of ethics, California! Senator Kamala Harris has come under fire for pursuing aggressive prosecution policies while California Attorney General, in stark contrast to he campaign rhetoric regarding mass incarceration of minorities.  Now the California Department of Corrections and Rehabilitation has removed many of the more controversial arrest records during her term in office. from the  Washington Free Beacon:

The department removed public access to a number of reports on incarceration in the state, including when presidential candidate Kamala Harris (D.) was California’s attorney general. Twice a year, the CDCR releases information about the number of new individuals incarcerated in the California prison system as part of its “Offender Data Points” series. These reports provide important information on demographics, sentence length, offense type, and other figures relevant to criminal justice and incarceration.Until recently, these reports were publicly available at the CDCR’s websiteA search using archive.org’s Wayback Machine reveals that as of April 25, 2019—the most recent indexed date—ODP reports were available dating back to the spring of 2009. As of August 2019, the same web page now serves only a single ODP report, the one for Spring 2019. The pre-2019 reports have been removed….the reports contain information about Harris’s entire time as state A.G., 2011 to 2017.

As John Travolta memorably says in “Face-Off”: “What a coinky-dink!”

Is this a partisan abuse of power designed to keep information away from the public and the media in support of favored candidate? It is. An ethical recipient of this assistance would condemn it and demand the State records be restored.  In this case, however, it would be more in character for Harris to have requested the purge.

2. Another shooting, another misleading stat. Today’s shooting in Dayton, coming right on top of last week’s El Paso Walmart massacre, has revived the “mass shooting a day” trope that was used repeatedly in 2018. Thus USA Today wrote today that there have been 250 “mass shootings” in 216 days this year. That’s deliberately misleading and deceitful.

The trick seems to be based on the non-partisan Mass Shooting Tracker, which uses the definition of “mass shooting” that includes any time four or more individuals are shot, excluding the shooter. Thus the number is inflated with gang shoot-outs, domestic violence, and incidents like this one, from a high-crime section of President Trump’s favorite city, Baltimore, last month:

“Police responded to a triple shooting in Northwest Baltimore late Saturday that left two males with serious injuries. Shortly before 10:30 p.m., police were dispatched to the 2800 block of Boarman Avenue for a shooting. They found three males with gunshot wounds. One victim was shot in the leg, an injury that was not life-threatening.”

Do you think of the Gunfight at the OK Corral as a mass shooting?  It was by the USA Today standard, though only three men were killed. Two of the Earp brothers and Doc Holliday were shot, so it was a “mass shooting.”

When media outlets and politicians point to a true mass shooting like the one in El Paso, where 20 died and many were wounded by a madman, and say “this is the 250th Mass shooting this year,” that sounds like “we have had 250 shootings like this in 2019.”

And that’s what you are supposed to think. All the better to scare you into giving up your right to personal protection.

3. Teddy Roosevelt and “Mr. Dooley.” In Doris Kearns Goodwin’s “The Bully Pulpit,” she tells the story of how Finley Peter Dunne, the social critic, pundit and humorist who wrote in the voice of the fictional Irish barfly, “Mr. Dooley,” wrote a scathing review of then New York Governor Theodore Roosevelt’s account of his exploits in the Spanish American War, “The Rough Riders.” Dunne mocked Teddy as representing the war as a virtual one-man triumph, and suggested that the book would be better titled, “Alone in Cuba.”

Roosevelt wrote him soon after, saying, “I regret to state that my family and intimate friends are delighted with your review of my book. Now I think you owe me one; and I shall expect that when you next come east you pay me a visit. I have long wanted the chance of making your acquaintance.” They eventually met at the Republican Convention in 1900, and Roosevelt handed him a news scoop:  he would accept the nomination as President McKinley’s running mate.

They remained friends and correspondents even though Dunne, as Dooley, continued to lampoon Teddy. Dunne wrote later, “I never knew a man with a keener humor or one who could take a joke on himself with better grace.”

This is the mark of both a secure and a wise leader, as well as one with a sense of humor and proportion. We have had few such leaders, and fewer such Presidents. Imagine how much better off President Trump would be if he had treated critics like Stephen Colbert and Samantha Bee the way Teddy treated Dunne.  Imagine how much better off we all would be.

4. What? Young female athletes handed off by their parents to adult coaches and into unsupervised interaction with older male athletes are often sexually abused? How could that be?  Three-time United States skating champion and Olympic meal winner Ashley Wagner said  this week  John Coughlin, a male figure skater who commited suicide in January,  had sexually assaulted her when she was 17. (Wagner is  28 now.) Writes the Times, “The accusations have further raised concerns that the dynamics of figure skating feed a culture in which young women are all too vulnerable.”

Gee, ya think? It is, has been and will always be irresponsible parenting to send young athletes out of parental oversight into the clutches of strangers because the parents lust for vicarious fame and direct fortune.  At best, even if they avoid the molestation that is too common to ignore, they have been deposited into an unhealthy life path. Today’s Times recounts the story of how young Natalie Wood, being showcased to Hollywood studios by her aggressive stage-mother, was raped twice at an audition when she was 16. Her mother never reported it, lest Natalie be blackballed by the many Harvey Weinsteins in the industry. Women’s sports are no different.

As child star activist Paul Petersen wrote in the only guest post ever to appear here,

“In the Common Law, children are the property of their parents who, in law, “are entitled to the custody, income and services” of the child. The presumption is that parents will not willfully take advantage of their child’s vulnerability, and their inability to disobey. Sadly, the reality faced by children in today’s world is at odds with this presumption.”

This is a much a child endangerment problem as a sexual predator problem.

 

And Championing Racial Double Standards Can Be Expensive As Well As Wrong: Ask Oberlin

Oberlin College deliberately set out to  destroy a local bakery for insisting that laws apply to black college students.  Now, in the case of Gibson’s Bakery v. Oberlin College, a jury has awarded 11 million dollars in damages to the bakery owners, and punitive damages might up the award to over 30 million.

Good. Very good. Spectacularly good.

Ethics Alarms first wrote about this awful story here. A precis:

On November 9, 2016—probably not coincidentally the day after Donald Trump was elected, throwing ultra-liberal schools like Oberlin into a ludicrously extended period of irrational fear and loathing—Jonathan Aladin, Endia Lawrence and Cecelia Whettstone were caught stealing bottles of wine from Gibson’s Bakery, a small family-owned establishment with a contract with Oberlin . As they have been duly trained by our culture, the students played the race card, initially claiming the shop had racially profiled them, and that their only misdeed was presenting  fake IDs. When that wasn’t working, the three admitted their guilt and also signed statements that the store was innocent of any race-related bias. It also appears that the students punched and kicked the shopkeeper. … (Here is the police incident report.) 

The day after the arrests, hundreds of students protested outside the bakery, and Oberlin’s student senate published a resolution saying Gibson’s had “a history of racial profiling and discriminatory treatment.” The Oberlin police conducted an investigation into the arrests and found “a complete lack of evidence of racism.” Over a five-year period, the bakery had pursued charges against 40 shoplifters, and only six were African-American.

…The owner met with then-Oberlin President Marvin Krislov and Tita Reed, assistant to the president, and they  pressured him to drop criminal charges against the three students and any future student-thieves who were first time offenders. When he did not agree, the complaint alleges, the school made good on its threat and dropped its decade’s long contract with the bakery. …  Meredith Raimondo, vice president and dean of students, joined students and members of the school faculty in campus demonstrations against the bakery, distributing a flyer that accused Gibson’s Bakery of being a “RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.”  A boycott of the business was organized, and according to the complaint, facilitated by the school. College tour guides reportedly informed prospective students that Gibson’s is racist. …

The Ethics Alarms post listed the probable factors at work: Continue reading

Morning Ethics Drill, 5/7/19: Unethical Headlines, A Missing Coffee Cup, And A Comment Of The Day

A morning that begins with a trip to the dentist and a referral to an oral surgeon can’t be good. Sorry.

And now I see that without warning or explanation, WordPress has removed its spellcheck feature. I’m sure those of you who are sick of my typos will appreciate THAT…

1. Stop making me defend Anderson Cooper, sort of! Here’s a cheap shot Fox News headline:

Anderson Cooper denies he’s ‘on the left,’ then rips Trump for tweeting about Kentucky Derby

Well, I’m also not on “the left” (Cooper is, of course), and I’m going to rip the President for tweeting his opinion on the Kentucky Derby, without even getting into the fact that his opinion was ill-informed and stupid.

As I wrote more than once during the Obama administration, the President is not the national arbiter of everything, and should keep his opinion to himself unless it directly and clearly involves the national interest. President Obama had a proclivity for injecting himself into controversies large and small, from the Trayvon Martin shooting to picking brackets for the NCAA college basketball tournament.  I wrote in this post,

This can no longer be called a rookie mistake, like the Prof. Gates arrest affair. President Obama has now had plenty of time to absorb the fact that the President does not have a blank check to insert himself into every local controversy and use his office to sway public opinion and the conduct of others regarding matters outside his responsibilities. Still, he continues to do it. It may seem trivial at first: the President gave an interview on TNT in which he pointedly suggested that NBA superstar LeBron James consider the Chicago Bulls as he faces free agency.  After weighing in on the most important things for James to seek from his current team, the Cleveland Cavaliers, if he was going to stay there, the President said, “You know, like I said, I don’t want to meddle. I will say this: (Derrick) Rose, Joakim Noah it’s a pretty good core. You know, you could see LeBron fitting in pretty well there.”

Now, I don’t care what Cooper thinks of Trump’s meddling in matters that don’t concern him if the CNN anchor didn’t have the integrity to knock Obama for doing the same thing, and repeatedly. Still, Anderson was on the right track—finally—to say, as he did,

“The president of the United States seems to have a lot of time on his hands And he can’t even stand some horses getting uninterrupted airtime. He’s got to be a part of every frickin news cycle. He can’t help himself!”

(I guess “frickin” is now considered professional lexicon at CNN. Stay classy, Anderson!)

Less defensible was this comment: Continue reading