Comment Of The Day On The Testimony Of Prof. Jonathan Turley

This is the first of three Comments of the Day I will post  authored by Glenn Logan. Glenn was an accomplished blogger himself before he hung up his blogging shoes, and here he among the  longest participating commenters Ethics Alarms has, and, obviously, an outstanding one. He has been on an impressive run, and I realized that I better catch up. All three of Glenn’s COTDs relate to impeachment (as well as several other excellent comments).

Here is Glenn’s first Comment of the Day, on Professor Turley’s testimony on impeachment, Part II, You can find the links to the entire statement here.

The crux of Turley’s argument is that the process has not discovered objective proof of the impeachable conduct alleged, assuming arguendo that the conduct alleged actually qualifies in a substantive way for the Constitutional requirement of “…high crimes and misdemeanors.”

Setting aside the intentions of the House Democrats and the Judiciary Committee, this entire episode has become an abuse of process, Kabuki theater designed to produce an impeachment trial. As to why, well, there are surely lots of plausible explanations and even on-the-record statements suggesting answers, but ultimately it doesn’t matter. What does matter is what future Houses will conclude from these proceedings, and I think that is largely driven by what happens in the 2020 election.

If it turns out that the Republicans win big because of the broad rejection by Americans of this entire process, the lesson will be that the wages of orchestrating an inevitably failed impeachment without broad political support from the electorate are punishment at the ballot box. The Republicans learned this lesson in the Clinton impeachment, and you would think the Democrats would have marked it well also.

But many of us suppose this current train wreck is being conducted by the Democratic base, who manifestly loathe Trump and would happily see him executed by firing squad, or hanged. If the Democratic politicians fail to deliver even a pro-forma impeachment of such a loathsome President, the Democrats (perhaps rightly) fear the base will abandon conventional political campaigns and go “full commie,” a situation which will fracture the party and perhaps reduce it to rump status. Continue reading

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

( Part I is here.)

Professor Turley’s testimony continues…

B.  The Nixon Inquiry

The Nixon “impeachment” is often referenced as the “gold standard” for impeachments even though it was not an actual impeachment. President Richard Nixon resigned before the House voted on the final articles of impeachment. Nevertheless, the Nixon inquiry was everything that the Johnson impeachment was not. It was based on an array of clearly defined criminal acts with a broad evidentiary foundation. That record was supported by a number of key judicial decisions on executive privilege claims. It is a worthy model for any presidential impeachment. However, the claim by Chairman Schiff that the Ukrainian controversy is “beyond anything Nixon did” is wildly at odds with the historical record. The allegations in Nixon began with a felony crime of burglary and swept to encompass an array of other crimes involving political slush funds, payments of hush money, maintenance of an enemies list, directing tax audits of critics, witness intimidation, multiple instances of perjury, and even an alleged  kidnapping. Ultimately, there were nearly 70 officials charged and four dozen of them found guilty. Nixon was also named as an unindicted conspirator by a grand jury. The convicted officials include former Attorney General John N. Mitchell (perjury); former Attorney General Richard Kleindienst (contempt of court); former Deputy Director of the Committee to Re-elect The President Jeb Stuart Magruder (conspiracy to the burglary); former Chief of Staff H.R. Haldeman (conspiracy to the burglary, obstruction of justice, and perjury); former counsel and Assistant to the President for Domestic Affairs to Nixon John Ehlichman (conspiracy to the burglary, obstruction of justice, and perjury); former White House Counsel John W. Dean II (obstruction of justice); and former special counsel to the President Charles Colson (obstruction of justice). Many of the Watergate defendants went to jail, with some of the defendants sentenced to as long as 35 years. The claim that the Ukrainian controversy eclipses Watergate is unhinged from history.

While the Ukrainian controversy could still establish impeachable conduct, it undermines that effort to distort the historical record to elevate the current record. Indeed, the comparison to the Nixon inquiry only highlights the glaring differences in the underlying investigations, scope of impeachable conduct, and evidentiary records with the current inquiry. It is a difference between the comprehensive and the cursory; the proven and the presumed. In other words, it is not a comparison the House should invite if it is serious about moving forward in a few weeks on an impeachment based primarily on the Ukrainian controversy. The Nixon inquiry was based on the broadest and most developed evidentiary in any impeachment. There were roughly 14 months of hearings – not 10 weeks. There were scandalous tape recordings of Nixon and a host of criminal pleas and prosecutions. That record included investigations in both the House and the Senate as well as investigations by two special prosecutors, Archibald Cox and Leon Jaworski, including grand jury material. While the inquiry proceeded along sharply partisan lines, the vote on the proposed articles of impeachment ultimately included the support of some Republican members who, again, showed that principle could transcend politics in such historic moments.

Three articles were approved in the Nixon inquiry alleging obstruction of justice, abuse of power, and defiance of committee subpoenas. Two articles of impeachment based on usurping Congress, lying about the bombing of Cambodia, and tax fraud, were rejected on a bipartisan basis. While the Nixon impeachment had the most developed record and comprehensive investigation, I am not a fan of the structure used for the articles. The Committee evaded the need for specificity in alleging crimes like obstruction of justice while listing a variety of specific felonies after a catchall line declaring that “the means used to implement this course of conduct or plan included one or more of the following.” Given its gravity, impeachment should offer concrete and specific allegations in the actual articles. This is the case in most judicial impeachments.

The impeachment began with a felony when “agents of the Committee for the Re- election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence.” The first article of impeachment reflected the depth of the record and scope of the alleged crimes in citing Nixon’s personal involvement in the obstruction of federal and congressional investigations. The article included a host of specific criminal acts including lying to federal investigators, suborning perjury, and witness tampering. The second article of impeachment also alleged an array of criminal acts that were placed under the auspices of abuse of power. The article addressed Nixon’s rampant misuse of the IRS, CIA, and FBI to carry out his effort to conceal the evidence and crimes following the break-in. They included Nixon’s use of federal agencies to carry out “covert and unlawful activities” and how he used his office to block the investigation of federal agencies. The third article concerned defiance of Congress stemming from his refusal to turn over material to Congress.

These articles were never subjected to a vote of the full House. In my view, they were flawed in their language and structure. As noted earlier, there was a lack of specificity on the alleged acts due to the use of catch-all lists of alleged offenses. Continue reading

Ethics Warm-Up, 11/15/2019: Idiots, “Friends,” Rationalizations And Doing Things The Hard Way

The Korean War memorial on the Washington Mall….moving and ghostly.

Greetings!

1. The media, doing its best to make the public stupid. Yesterday the collected dolts  of “The View” managed to mangle the concept of hearsay, following a Democrat rep’s absurd contention that hearsay evidence cold be “better” than  direct testimony.  The panel show also misrepresented how the Clinton impeachment proceeded.

Sunny Hostin, the alleged conservative on the panel,  said that  President Clinton’s impeachment  was the result of Linda Tripp’s  testimony, saying , “Clinton was impeached because of Linda Tripp’s testimony, which was complete hearsay!”

How wrong can a statement be? Clinton was impeached because he lied under oath in a hearing involving the civil law suit against him by Paula Jones (as well as for lying to a grand jury and obstruction of justice.) Tripp had made an illegal tape recording of Lewinsky, which was not hearsay. Tripp’s tape was used to get Lewinsky to admit the affair, which was clearly not hearsay. Then there was that stained dress. Had not direct testimony and physical evidence backed up Tripp’s account, Clinton almost certainly   not have been impeached

2. This is why we can’t have nice things. It was inevitable, with all the recent resurgence in interest in the 90s sitcom “Friends,” that the long-running and still-popular show would finally be subjected to one of those depressing reunion specials. This was especially likely because the aging cast isn’t much in demand these days, and mots of them could use a boost.

But Beware, “Friends,” the woke posse is watching. The show about six white hetero singles living in New York was not diverse, and has been criticized in the 15 years since it ended for being implicitly racist, sexist, and anti-LGBTQ. Thus the Righteous have decreed, “Friends’ reunion is all we have wanted for years, but HBO Max version better have more racial diversity and LGBTQ representation.”

Thus we get this,

[T]he iconic NBC show is not without its problems, and yet it entertained us in real-time for ten years and for years after that, making us laugh on the days we are feeling low and making us believe that they will be there for us. It is only natural that we want to relive those feelings again, but even those of us who grew up on ‘Friends’ have outgrown those insensitive jabs about Chandler’s (Mathew Perry) drag queen father, unwarranted fat-shaming of Monica (Courtney Cox), repeated complicity of Joey’s (Matt LeBlanc) sexism and so on.

When the show does return in – hopefully – 2020 for an HBO Max audience, we should hope that it is rich in diversity without it being about tokenism. It is unfathomable that this group of friends who live in New York, the melting pot of America, hasn’t made friends with more diverse backgrounds. Even more so, it is difficult to believe that they haven’t even interacted with people of different sexualities, sexual identities, and races for them to know better than to make jokes about them. It may have flown in the 90s and 2000s, but it definitely isn’t going to in the current day and age.

No, we should hope that it is funny, but if awkward virtue signalling and making sure that all the EEOC boxes are checked while making up for ten years of insensitively showing a group of friends who hung out primarily with people like themselves (like most of us), are going to be the priorities, and you know they will be, it would be kinder and more responsible to leave Ross, Chandler, Joey, Phoebe, Rachel and Monica where they belong—in the past, on re-runs.

Incidentally, one of the two funniest jokes I ever heard on “Friends” involved “fat-shaming.” The groups was watching an old home movie taken when Monica was a grossly over-weight teen. The now svelte woman, embarrassed, said, “They say that the camera makes you look 15 pounds heavier,” to which Chandler replied, “Just how many cameras were on you?”

3. Upon reflection, I don’t think I need to add this new rationalization. The Rationalization List is stuck at 99, and I have been wondering what #100 would be. When I was writing about the now-fired Canadian hockey pundit Don Cherry bringing himself down with his big mouth, I was annoyed by how many of his defenders argued that Don was just being Don, and since he was always Don, and “didn’t mean anything” by being Don, and was popular because he was Don, being Don shouldn’t be held against him. I suspect this bothered me so much because it appears to be the only thing keeping Joe Biden from being ripped to pieces by #MeToo Furies, as he richly deserves to be. So briefly I considered the need for a “It’s just who he is” rationalization.

Upon reflection, I demurred. This is cutting the rationalizations too thin. We already have Rationalization 41 A. Popeye’s Excuse, or “I am what I am”:

Sure, let’s stipulate that the jerk is exactly who and what he presents himself as being. This doesn’t excuse his conduct in any way. He is what he is, and what he is is an irresponsible, narcissistic, rude, boorish, uncivil, nasty, destructive, ignorant, impulsive untrustworthy and despicable creep. Being a real  irresponsible, narcissistic, rude, boorish, uncivil, nasty, destructive, ignorant, impulsive untrustworthy and despicable creep is no more ethical than being a phony one. In this case, transparency is not a virtue.

..and Joe Biden even has his own rationalization springing from Cherry-like excuses, Rationalization 38B, Joe Biden’s Inoculation or “I don’t deny that I do this!”

A sub-rationalization to #38. The Miscreant’s Mulligan or “Give him/her/them/me a break!,” Joe Biden’s Inoculation argues that habitual bad conduct is mitigated by one’s open admission and acknowledgment that one’s engaging in it is an ongoing problem.

I think this base is well covered. The search for #100 goes on…

4. Why didn’t she just take the bar exam one more time?  I don’t understand this story at all.

Roberta Guedes graduated from Stetson University College of Law in 2014, but she  failed to pass the Florida Bar exam twice. The traditional remedy for this is boning up and taking the exam again, and again if necessary, but noooooo. 

Instead, federal prosecutors say, she used the name of a classmate  to register two new law firms with the state Division of Corporations. Agnieszka Piasecka attended law school with Roberta, and the friends  talked about starting a law firm together, When Guedes flunked the bar exam, Piasecka who did not flunk,   opened her own firm in Clearwater,  specializing in wills and trusts, immigration, and divorce cases.

The plot began when Guedes offered Piasecka the free use of her  office in downtown Tampa to meet with clients a few times.

In September 2014, Guedes incorporated a firm she called Ferguson and McKenzie LLC, listing Piasecka as its registered agent. In November, she started a second legal services business called Immigration and Litigation Law Office, Inc., listing another woman, Arlete Chouinard, as a vice president and manager.  Neither Piasecka nor Chouinard knew about this. She created websites for both companies, including claims of  national and international offices that didn’t exist, and faked partners and associates using stock photos. She also represented clients, accepting fees while never telling them that she had no license.

Now Guedes, 40, faces prison time after pleading guilty to federal charges of mail fraud and aggravated identity theft. It is fair to say that it is now too late to pass the bar exam.

The Brazen Dishonesty Of Move-On.Org

If you know the background, this is hilarious…but not surprising.

Move-On.org has been an ethics burr under my saddle since they first sullied the political scene with their emergence during the Clinton impeachment drama. The name of the organization stood for the proposition, an out-growth of the ethically corrupting Democratic defenses of President Clinton’s conduct, that we should all get along, that the President and the nation had suffered enough, it was all just a big misunderstanding over sex and “private personal conduct,” and in the interests of everyone, we should just “move on to pressing issues facing the country.’”

This was transparent and dishonest partisan garbage at the time, and I wrote about it extensively on the old Ethics Scoreboard (which will be back on-line as soon as I have the stomach to fight via-email with the cheap hosting site that refuses to allow any direct phone contact, and is improperly holding my website hostage.) The group’s underlying supposition was and is corrupt: yes, the President illegally used an intern as his sex toy in the White House, lied under oath in a court proceeding, and used his power to hide evidence and cover-up his acts, but we should just let that go because there are more important things to worry about. The “ethically corrupting Democratic defenses of President Clinton’s conduct’ that spawned the cynical Move-On efforts were 1) It’s just sex. 2) lying about sex under oath isn’t really lying, because “everybody does it” 3) the President using his power and position to get sexual favors from an intern and U.S. government employee is no big deal; and 4) Come on, lots of other Presidents did bad stuff. Continue reading

Morning Ethics Warm-Up, 11/21/18: BREAKING! Bill Clinton Harassed Women!

Good morning!

Me? I’m thankful that I’ve had the Warm-Up to fall back on when I’m too busy trying to sleep off this ^$$@!#^& endless chest cold, so I can at least keep a little bit current on Ethics Alarms. Today, the hell with it! Mind over matter, exhaustion be damned, I’m going to work, shop, make delayed client calls and research until I drop, literally. Time to stop being a weenie. Then tomorrow I can be thankful that I’m still alive.

1. Do not let the Clinton defenders off the hook.  For me, this is head exploding: the New York Times is crediting an A&E series about “The Clinton Affair” with suddenly, remarkably, making it possible to see that Paula Jones, as well as Katherine Willey and Juanita Broaddrick, were not just “right wing conspiracy”- primed bimbos weaponized to bring down Bill Clinton. Ah! Now, through the sudden clarity provided by the #MeToo movement, the Times and the rest of the mainstream media feels that the truth, so impenetrable all those years ago,  has been revealed! Jones was credible! Willey and Broaddrick were (and are) credible! What a shock! Who knew?

Excuse me if I barf. I knew, and, I submit, so did the New York Times et al,, including my hypocritical feminist lawyer friends at the Association of Trial Lawyers of America, where I worked during the Clinton years. “I believe Anita Hill!” boasted the button worn by the association’s first female President. “Really?” I asked her? Then why didn’t you believe Paula Jones? Clinton has had a history of sexual harassment and predator allegations; Clarence Thomas hasn’t.” Her answer was, to paraphrase, “Humina humina humina…’ She had no answer. She knew she had sided with a powerful man against a powerless woman for purely political reasons, and credibility and justice had nothing to do with the calculation. So did the New York Times. All of the defenses of Clinton were rationalizations—all of them, every one. I argued, and I taught at the time, that the Lewinsky affair was classic workplace harassment where the disparity of power made true consent impossible, even as such feminists as Gloria Steinem denied it, because, you see, Bill supported abortion rights. Of course he did. I’ll bet those rights served him well at one or more junctures in his rise.

Now, though, the realization of what Clinton was really doing has come into focus, as if it wasn’t deliberately blurred by the same forces now proclaiming it. In her essay for Vanity Fair earlier this year, Monica wrote that #MeToo had given her a “new lens” for seeing her own story, writing “Now, at 44, I’m beginning (just beginning) to consider the implications of the power differentials that were so vast between a president and a White House intern.”

Well, you’re slow, Monica, but at least you have an excuse. The New York Times is simply covering up a lie. It has no new lens: it was just pretending, along with the Democratic Party and most of the news media, that it didn’t know what was obvious to anyone with a neutral perspective. Bill Clinton was a serial harasser and sexual predator. He used his power in office to abuse women, and then to cover up his misconduct. Hillary Clinton was his accomplice, for her own gain. The President lied under oath in the Jones suit, a genuine, proven, “high crime.” It was not personal conduct, but professional, official, workplace misconduct, by well-accepted standards in the employment law field. That other Presidents, notably Kennedy, hasalso been sexual predators was not an valid excuse or a defense. The Democratic Party’s alleged feminism and dedication to women’s rights has been pure hypocrisy and cynical misrepresentation as long as the Clintons were embraced as allies and icons, a situation which existed right up through the 2016 election.

How dare the Times pretend all of this was unfathomable before 2018? Are Times readers really this corrupt and gullible? I know I especially resent it, because everything the paper says is suddenly, amazingly “in focus” was clear to me 20 years ago, and I got the same sneering condescension from my left-corrupted friends then that I get from them now, though on different topics. I’m thankful for the Clinton Ethics Train Wreck, because it started me writing about ethics on-line. But I am not letting these liars and hypocrites off the hook. Neither should you. Continue reading

Ethics Observations On Pew’s “17 Striking Findings From 2017”

#1Partisan divides dwarf demographic differences on key political values. The average gap between the views of Republicans and Republican-leaning independents and Democrats and Democratic-leaning independents across 10 political values has increased from 15 percentage points in 1994 to 36 points today. Two decades ago, the average partisan differences on these items were only slightly wider than differences by religious attendance or educational attainment, and about as wide as differences across racial lines. Today, the partisan gaps far exceed differences across other key demographics.

I attribute this ominous development to both parties crossing previously observed lines of appropriate political tactics and rhetoric, picking at the seams that hold our society and democracy together. The GOP-advanced Whitewater investigation of the Clintons’ financial shenanigans began the criminalization of politics. President Clinton’s arrogance and recklessness as a sexual predator placed Democrats in the position of defending unethical conduct especially repugnant to conservatives, and the furious (and dishonest) efforts of both Clinton and Democrats to deny the legitimacy of his impeachment drove the parties further apart.

The essentially tied election of 2000 came at the worst possible time, but Democrats made its wounds to public comity worse that they had to be by using the false claim that the election was “stolen” to energize its base for years. The rise of hyper-partisan leaders in the House and Senate—Gingrich, Pelosi, McConnell, and worst of all, Harry Reid—continued to poison discourse.  The Iraq War fiasco, a Republican mistake, and the false Democratic mantra “Bush lied…” in response to it exacerbated the divide. Then the bi-partisan botches that led to the 2008 crash were widely attributed only to Republicans. Spurred by the prospect of a black President, the news media, always heavily tilted leftward, abandoned large portions of its ethical values to be an unapologetic cheerleader for the Democratic candidate, because having a black President elected would be so darn wonderful for everybody. Thus did the media fully embrace “the ends justifies the means” as an operating principle/

The inevitable racist response of a minority—but a vocal one—in conservative and Republican circles to the prospect of a black President caused further division, and Obama’s alliance with an openly racist Reverend Wright caused more racial polarization. Once elected, President Obama could have healed much of the damage since 1994 (as he promised to do) , but instead he chose to leverage divisions among races, genders, ages, classes, gays and straights, and legal and illegal immigrants for political advantage. His supporters, meanwhile, including those in the news media, began using accusations of racism to smother and inhibit legitimate criticism. Obama broke with Presidential tradition by repeatedly blaming his predecessor for problems he proved unable to solve, keeping partisan resentment hot.

Even with all of this, Obama could have healed much of the accumulated partisan antipathy if he had been an effective leader. He wasn’t. In contrast to his predecessor he was an effective (though over-praised) communicator,and in marked contrast to the current POTUS, he played the part beautifully, and that’s not inconsequential. The rest, however, was an ugly combination of misplaced priorities, incompetence, laziness, racial bias and posturing, with awful results. This hastened the divide, because Obama’s core base, the African American community, was inclined to view him uncritically no matter what he did. As other groups called out the President on his failings, that group’s loyalty and bias drove it, and allied groups, into defensive, knee-jerk ideological opposition, as the growing power of social media exacerbated hostility between the ideological polls.

Obama’s divisive administration, rhetoric and poor governing habits begat Donald Trump.

And here we are. Continue reading

Ethics Observations On The Impeachment Poll

johnson-impeachment

Public Policy Polling reported yesterday that…

“Just three weeks into his administration, voters are already evenly divided on the issue of impeaching Trump with 46% in favor and 46% opposed. Support for impeaching Trump has crept up from 35% 2 weeks ago, to 40% last week, to its 46% standing this week. While Clinton voters initially only supported Trump’s impeachment 65/14, after seeing him in office over the last few weeks that’s gone up already to 83/6.”

What’s going on here?

Ethics Observations:

1. The article buries the lede. What has changed is that Clinton voters now want the President to be impeached by an incredible 83-6 margin. Good job, news media! Well done, Democrats! Nice well-poisoning, social media! Now, if the poll is to be believed, virtually all of the 65,844,610 voters who supported Clinton have adopted the Left’s favored totalitarian mode of governance: if our candidate loses the election, gain power through other means.

2. This has been the relentless message wafting in from the Left  like Assad’s poison gas since November 8, 2016, when “The World Turned Upside-Down.” The popular vote should decide the election…Electors should violate their pledges…Trump should be impeached before he takes office…He should be stopped from taking the oath until he sells all of his business interests—Russia “hacked the election,” we should have a do-over…His cabinet should declare him “unable to discharge the duties of the Presidency,” and make Pence President…the military should take over…He should be arrested…He should be shot…Rioters should prevent the Inauguration from occurring…Did I miss any? I’m sure I must have. But now it has come back to impeachment.

3. Impeachment has been the default remedy of radicals, fanatics and crazies who oppose Presidents since at least the 1950s, when the John Birch Society was running amuck. Democrats, having once taken their name seriously and genuinely supported, you know, democracy, used to regard it as dangerous device that could be used to take power away without the inconvenience of elections. John F. Kennedy won a Pulitzer Prize for putting his name on a pop history book called “Profiles in Courage” (he didn’t write it) about heroic U.S. Senators, and one of the most stirring tales was the book’s recounting the story of Edmund Ross, Republican Senator from Kansas, who bucked his party leadership and his constituents by voting for President Andrew Johnson’s acquittal in his impeachment trial, thus causing the effort to throw Johnson out of office to fail by a single vote. Kennedy’s book stated that Ross, whose career in Kansas was ended by the vote (he later switched parties and moved to New Mexico), may well have saved the balance of powers and the integrity of the the democratic process. Johnson was an unpopular and obstructive President who stood in the way of the Radical Republicans’ plans to subjugate the defeated Confederacy, but his “high crimes” consisted of using his power in politically unpopular ways.

4. The Democrats carried on Ross’s tradition when they refused to give Bill Clinton’s impeachment a fair trial, and he had engaged in impeachable offenses. That didn’t mean that it would have been good for the country to remove Clinton from office, however, especially since the Republican Party had been openly searching for ways to undermine Clinton since he was elected. The impeachment was an example of something justifiable done for unethical reasons, thus setting, again, a dangerous precedent. Impeachment has to be a last resort when a President’s conduct abuses law and power, as it would have been if Nixon hadn’t resigned. Any other use of the device will allow elections to be overturned whenever a President’s opposition gets sufficient popular support and representation. Continue reading