Wednesday, February 19, 2020

Should Attorney General Curtis Hill Face Discipline for Groping Allegations?

At the 2016 Indiana GOP Convention, I voted against Curtis Hill nomination for Attorney General's race on all three ballots.  I remember the reason why:  1) Hill's position we need to aggressively prosecute people for marijuana possession; 2) Hill's use of his office to target a journalist who dared to report on the conditions at the Elkhart County jail; 3) Hill's ridiculous prosecution of the teenage burglars for "felony murder" when one of them ended up shot and killed by a homeowner.  He litigated it all the way to the Indiana Supreme Court which told him the obvious - that the felony
murder law didn't apply to that situation.

I am definitely no fan of Indiana Attorney General Curtis Hill.

Still Hill's prosecution of his alleged groping of women in a bar raises troubling questions.  Would an attorney in private practice be subject to discipline for such boorish behavior?  I say "boorish" because Hill's alleged behavior was not found to warrant criminal charges.  Hill also could have been impeached and removed by the General Assembly.  The leadership of the Indiana legislature though apparently did not believe Hill's conduct warranted impeachment.

Instead, Hill's effective removal is being attempted through the attorney disciplinary process.  Hill needs a license to practice law and if that license is suspended, Hill cannot serve as Attorney General.  Then you have the issue of his being eligible to being run for re-election.

The Disciplinary Commission's recommendation to the Hearing Officer, former Indiana Supreme Court Justice Myra Selby that Hill be suspended from the practice of law for two years was excessive to say the least.  Unfortunately there is a tendency of the Commission's leadership to take anything but complete acceptance of the rightness of the Commission's charges personally.  Attorneys who dare challenge Commission charges too often end up getting hit with excessive punishment recommendation. That is a fact I know all too well when the Commission recommended that yours truly be suspended for a year when I wrote a private email to another attorney criticizing a judge, an email in which I got a couple minor facts wrong regarding what happened in the case before I entered my appearance.

Selby soundly rejected the Disciplinary Commission's recommendation, and instead determined that Hill should be suspended for two months, without automatic reinstatement.  Still should Hill face even that discipline?

The IBJ reports:
A prominent supporter of Indiana’s attorney general is arguing that a proposed suspension of his law license over allegations of drunkenly groping four women is excessive and that even the proposed punishment wouldn’t force him from office.It remained unclear Monday whether Republican Attorney General Curtis Hill could remain in as the state government’s top lawyer if the Indiana Supreme Court agreed with a hearing officer’s recommendation released Friday that his law license be suspended for at least 60 days. 
Hill has denied wrongdoing and rebuffed calls from Gov. Eric Holcomb and other GOP state officials for his resignation for his actions during the March 2018 party at an Indianapolis bar marking the end of that year’s legislative session. 
Former state Supreme Court Justice Myra Selby wrote in her report to the court that Hill’s “conduct was offensive, invasive, damaging and embarrassing” to the women. She recommended a 60-day suspension of his law license without automatic reinstatement under which the sanction could continue indefinitely until lifted by the state Supreme Court, which will make the final decision in the professional misconduct case. 
James Bopp, a Terre Haute attorney who is a former vice chairman of the Republican National Committee, objected to Selby’s findings that Hill should be held to a higher standard of conduct because of his status as the state’s top law enforcement officer.“He should not be treated more harshly because he is a public official, that’s the job of the voters,” said Bopp, who helped start a legal defense fund for Hill in 2018. “When people do things in office, they’re judged by the voters.”
Bopp is 100% correct.   Barring a criminal charges or misconduct relating to the office, the attorney disciplinary process should not be used as a way to overturn the results of an election or prevent attorney office holders from running for re-election. While Selby's determination that a two months suspension is warranted is far more reasonable than the position taken by the Disciplinary Commission, it still constitutes substantial discipline for conduct removed from Hill's actual duties as the elected attorney for the State of Indiana.

It is a very slippery road when attorney disciplinary bodies start disciplining lawyers for non-criminal conduct unrelated to their jobs.  Where is the line?   That's not to say the conduct Hill is accused of is perfectly acceptable. It just means that it might not be something that should be dealt with by the attorney disciplinary process.   The Indiana Supreme Court should use the case to create some bright lines on what conduct is an appropriate subject for attorney discipline.

Monday, February 17, 2020

GOP Senators Will Pay for President Trump's Impeachment

One thing you learn in politics is that when one side wins a contentious issue, that issue no longer salient to the winners.  It is the generally losers of the issue who reap the benefits at the polls, especially when the election is several months down the road from the lost battle.

In 1973, liberals, mostly Democrats, won the abortion issue when the Supreme Court handed down Roe v. Wade.  Even though it was then, and still, is about a 50-50 issue, it is conservatives, mostly Republicans, who for 47 years have beat up those on the left on the issue.  If Roe v. Wade is ever overturned, expect conservatives to relax and the abortion issue to start working in the liberals favor
Army Lt. Col. Arthur Vindman
politically.

That brings me to the issue of impeachment.  Democrats were able to impeach President Trump in the House, but in the Senate removal fell far short as Republicans (sans Utah Senator Mitt Romney) voted lockstep to acquit the President.  In the process, an impeachment "trial" was held without witnesses or evidence being introduced.

Several Republican Senators, including Indiana's Mike Braun, opined that President Trump's behavior in trying to shake down an ally for help against a political opponent was over the line and Trump had learned a lesson from the impeachment.  In the days that followed his acquittal, President Trump proved he had, indeed, learned a lesson.  That lesson was that no matter what he did, no matter how illegal or morally wrong, Republicans in the Senate would always have his back..

Within days of the acquittal, President Trump removed Army Lt. Colonel Alexander Vindman from his position with the National Security Council because he dared show up to testify in response to a House subpoena, which he was required to by law, and then proceeded to tell the truth under oath, which he was required to do by law.  Vindman has faithfully served in the Army for over 20 years, starting as an infantryman in 1999.  In 2004, Vindman was injured by a roadside bomb in Iraq and received a Purple Heart.

After Trump's retaliation against Vindman, Republican Senators rallied to his defense.  Kidding.  They said nothing or explicitly backed President Trump over Vindman.  Indiana Senator Todd Young, who publicly claims to support veterans, chose to publicly back the five time draft dodger Donald Trump over Vindman, whose commitment to his adopted country by any measure qualifies him as a patriot.

Young was not alone in his support for the questionable decision to sack Vindman over his testimony.  Other Republican Senators chimed in, while some said it was okay because he was not sufficiently "loyal" to the President, most most bypassed the merits of the reassignment, focusing instead on the notion that the workplace retaliation against Vindman was perfectly legal because of the President's absolute authority to remove appointees to the NSC.  Too long to discuss here, but the legal issues regarding the Vindman reassignment are much more complex than those GOP Senators wished to admit.  But even if the retaliation was legal, that does not make what Trump did morally right.  On that point, Republican Senators are mostly silent, or support the President.

In 2018, the Republicans lost the House because the GOP-led majority refused to do their job and hold President Trump accountable.  The only thing that saved the GOP majority in the Senate that year was the incredibly favorable map, i.e. 1/3 of senators are up every 2 years and the 2018 election featured scores of Senate Democrats defending seats in states Trump won in 2016.  The 2020 Senate map is much less favorable for Republicans.

Trump may well escape the political consequences of "winning" the impeachment issue due to the Electoral College and the Democrats' apparent stubborn intent to offer an avowed socialist, Bernie Sanders, as Trump's opponent in the Fall.  The GOP Senators though do not have the luxury of the Electoral College and they may well square off against Democratic moderates capable of picking up enough votes to swing competitive states in their favor.

Senate Republicans were extremely foolish to not allow for witness testimony and documents in the Senate impeachment trial.  It makes Republican Senators vulnerable to the charges that they were trying to cover up the President's misconduct...which, of course, is exactly what they were doing.  But it is worse than that.  The Senate Republicans failure to even call for evidence at the trial assured Trump he can do whatever he wants and the Republican-led Senate will do absolutely nothing to hold him accountable.

Surprise, surprise, surprise (channeling my inner Gomer Pyle)....Trump has taken that assurance and run with it.  You can expect that Trump will continue to try to cheat to win the 2020 election (asking foreign countries to intervene in the election will just be the start.)  You can expect Trump will use the departments of government to go after his opponents and protect his friends.  (Trump will make Nixon look like a rank amateur in that regard.) You can expect he will continue to use his position to enrich himself and his family.

And you can expect the Republicans in the Senate to lose a majority because they refused to do their jobs and hold this President accountable.

Tuesday, February 4, 2020

Hopefully the Tabulation Snafu Spells the End of the Iowa Caucus

I was at my computer last night, eagerly awaiting the results of the Iowa caucus to start trickling in.  Nearly 24 hours later, I'm still waiting.

From the reactions of the candidates, Mayor Pete might have won.  Or, maybe, Bernie Sanders did.  Warren probably finished third. Biden, who seemed the most displeased with the delay and raised the issue of election integrity, probably slipped to fourth if not fifth. 

But who knows what happened?  By 5 pm, eastern time, Iowa Democratic officials are supposed to
release "partial" results. 

I frankly don't know how you mess up the count on a caucus.  Tabulating the votes in a primary involves much more moving parts and is much more complicated than a caucus.  With a caucus, people are declaring their preferences publicly and standing in a group with a group of people who support that candidate.  The precinct captain then counts the number of supporters each candidate has then reports that total.  So simple.

Apparently, the Iowa Democratic Party tried to use an app for the tabulation that had bugs.  That's why they should have had a backup plan. And there should have been a second backup plan if the first one didn't work.  That is why you always have test run of the equipment.

It appears the tabulation snafu has people so angry, the institution of Iowa caucus, founded in 1972, might be in danger.  Hallelujah!  First, caucuses are stupid.  In an age where privacy is of utmost concern and our politics is incredibly divisive, voters do not want to go to public meetings and declare in front of their neighbors who they support for President. 

But I have another reason I want the Iowa Caucuses to end - Ethanol.

When it comes to alternative energy sources, ethanol is far and away the worst.  It takes more energy to produce a gallon of ethanol than the energy that gallon of ethanol provides for consumers.  Blending ethanol with gasoline significantly reduces fuel economy, which results in cars requiring more gas to travel the same distance. Not only is ethanol bad for the environment, putting corn into our gas tanks drives up grocery prices.  Not only do humans consume corn, the farm animals we consume do as well.  There is only so much corn that farmers can grow.  When demand for corn is high due to the use of ethanol, the prices for corn, beef, pork and chicken all go up.

Environmental activists long ago figured out the flaws in ethanol and stopped advocating for its use.  So, if environmentalists aren't pushing for ethanol, it reduces mileage, and it raises prices for consumers, why is ethanol still being pushed.

Farmers.

In particular, the farmers from Iowa, the biggest ethanol producing state in the country.  Iowa farmers make a lot of money off ethanol.  So what is the tool by which those Iowa farmers ensure that powerful politicians protect the ethanol industry?  The Iowa presidential caucus held every four years.  For presidential candidates to do well in the all important first electoral contest, they must promise to support ethanol. 

If the wait for vote totals in Iowa spells the end of the Iowa Caucus and ethanol, the wait will be worth it.

Monday, February 3, 2020

Expect Iowans to "Feel the Bern" Tonight

Because caucuses, unlike primaries, require a substantial time commitment on behalf of participants, candidates who have a core of highly energized, committed supporters tend to do best.  Because of that, I would be shocked if Vermont Senator Bernie Sanders does not come out on top tonight. (A caveat, however.  Because of the way they are tallying votes in Iowa, there may be more than one
Vermont Senator Bernie Sanders
winner). 

As someone who studies politics, I am more interested in how the other candidates do.  Will Joe Biden fall to third or maybe even fourth place?   Will Elizabeth Warren finish a strong second, which runnerup status would keep her alive to possibly win New Hampshire?  Can Mayor Pete, who I think is the most talented politician in the field, recover some of the luster that briefly propelled himself to the lead in Iowa and New Hampshire polls?  And what about Minnesota Amy Klobuchar?  Can she have a strong showing in Iowa that will keep her campaign going?

Have I mentioned how ridiculous it is that we put so much meaning on the differences in candidates' totals in the Iowa caucuses that amount to just a few hundred voters?

If Sanders wins both Iowa and New Hampshire, I think Warren's campaign is effectively over.  If Mayor Pete and Klobuchar perform badly in Iowa, they are also on the ropes.  While I think Biden's campaign could survive bad performances in Iowa and New Hampshire, surviving is not the same thing as succeeding.  

I believe when it is all sorted out, there is likely to be one "progressive" candidate (almost certainly Sanders) and one moderate candidate (Biden, Mayor Pete, Klobuchar or former NYC mayor Michael Bloomberg) left pursuing the Democratic nomination.   I was originally dismissive of Bloomberg's chances, but I am not anymore.  I think he may have stumbled onto a strategy, the only strategy, that makes him viable for the Democratic nomination.  If it comes down to just Sanders or Bloomberg, my money is on Bloomberg, who Democrats would believe is a much stronger general election candidate.

GOP: The Conservative Party Becomes the Party of Corruption, Cover-Up

Nearly 40 years ago, I walked into my first Young Republicans meeting on the campus of Ball State University in Muncie, Indiana.  I had grown up with Democratic parents, but they were not liberals.  My father, in particular, complained constantly about liberals at the dinner table.  When I asked him why he didn't vote for Republican since he disliked liberals so much, he responded that the GOP did not support the working man.  He was the epitome of what used to call a "yellow dog Democrat," someone who would vote for a Democrat even if the party's candidate was a yellow dog.

At the Young Republican meeting and the other Republican meetings I attended that year and the
years that followed, I learned of a burgeoning group of intellectuals whose ideas provided the foundation for what became the conservative movement.  Over the years, I read many of their positions papers, books and other writings.  To this day, I still have on my bookshelves Milton Friedman "Free to Choose," Robert Bork's "Tempting of America, and the bible of privatization, "Reinventing Government."   

The conservative movement was about limited government, reduced budget deficits, a devolution of power from the national government to the states (i.e. federalism), a support for freedom and democracy around the world, family-friendly social policies, a commitment to the Constitution as written (and the Framers intended), and open, honest, and ethical government. It was about marshaling the better nature of people who choose to live in this great country and giving them the opportunity to succeed.  The conservative movement provided a positive vision of the future, a welcoming and supportive environment.  Liberals were not the enemy.  They were just people who had not yet been convinced of the correctness of our ideas..

Don't get me wrong.  The Republican Party, to which the conservative movement attached itself, often fell far, far short in implementing those objectives over the decades that followed. But there was never any doubt what those goals were. 

About a decade ago, the conservative movement, which came alive during Ronald Reagan's 1980 campaign, began dying.  Led by a multitude of hosts on FoxNews, Rush Limbaugh and others, the intellectual underpinnings of the conservative movement were replaced by the oversimplified dichotomy, "we good, they bad."  Except that the other side, the liberals, were not just bad, they were downright evil, worse than even the most brutal foreign dictators who repress freedom and kill their own citizens.  People no longer were expected to think critically about issues...instead they were asked to focus on who is for which policies.  Conservative politics became not about intellectualism, but about tribalism.  The conservative media's feedback loop created a flock of sheep who would simply support whatever policy or candidate they were told to support. 

With the intellectual underpinnings of conservativism gone, it wasn't long before the goals of the movement began falling as well.  Today, we have a Republican Party supporting record budget deficits (during a time of sustained economic growth no less).  The GOP has also apparently forgotten about federalism, enthusiastically mandating states adopt preferred policies such as a 21 year old smoking age.  On the foreign policy front, we have a Republican President who warmly embraces dictators who repress freedom and kill political opponents, while that same President, at every turn, undermines our allies and refuses to support American democratic values both at home and abroad..  Today's Republicans, in and out of Congress, regularly support these views, which just a few years early would have been called, rightfully, un-American and unpatriotic.

And let us not forget the Constitution.  The first few decades after I became a Republican, GOP candidates and elected officials bragged about carrying a copy of the Constitution in their pockets.  Today members of Congress, at least the Republican ones, have turned to gutting provisions the Founders put in the Constitution to protect our Republic.  The requirement that emoluments being given to the President be approved by Congress?  Ignored.  The power of the Senate to confirm key members of the executive branches, including those appointees conducting foreign policy?  Gone.  The President can just appoint unconfirmed "acting" officials or have his private attorney do the whatever he wants done.  The power of Congress to appropriate money for programs?  Never mind.  The President can just make a phony claim of an "emergency" and take money from other programs for his pet project. 

But at least Congress still has the power to conduct oversight of the executive branch, right?   Nope.  This past few days though we learned Congress has no right to subpoena documents or witnesses from the executive branch.  The President can just ignore the subpoenas without any consequence whatsoever.  Indeed as the impeachment saga played out, Justice Department officials were in federal court in another matter arguing that Congress had no authority to go to counts to enforce its subpoenas.  Congressional oversight is gone.  Not sure when gutting constitutional checks and balances to give the President absolute power became a Republican concept. 

Then you have impeachment.  The President used his office to illegally withhold congressionally appropriated military aid (a violation of the Impoundment Act) desperately needed by Ukraine to get that country's President to intervene into an American election.  In doing so, the President was willing to put America's national security at risk to get something he could use (the announcement of an investigation) politically against a rival.   Of course, the President does what he routinely does - he lied, saying there was no quid pro quo, that he didn't ask that the Bidens be investigated in an exchange for military aid.  The President then did everything he could to cover up what he did, ordering executive officials to not testify and not turn over a single page of documents in response to House subpoenas.  When impeachment reached the Senate, Republicans complained, wrongly,  there was no direct evidence of such a quid pro quo.  Of course, when there was an opportunity for Republican Senators to get even better direct evidence such as the testimony of former national security adviser John Bolton, they said they didn't want to hear it.  The first impeachment "trial" in American history without evidence will conclude this week. 

But it gets worse.  In reaching the conclusion that the President did in fact withhold military aid for a political favor, i.e. there was a quid pro quo, the Republicans in the Senate de facto adopted the doctrine put forward by former Harvard Professor Alan Dershowitz which states that if a President does something in furtherance of his re-election, that is by definition in the public's interest, and cannot be a subject of impeachment.  In fact, the President cannot even be investigated for such conduct.   The Dershowitz Doctrine makes Presidents immune from criminal and non-criminal acts, as long as they can tie it to an effort to get re-elected.   Too bad Nixon did not know about this "Get Out of Impeachment" card that Dershowitz, but no other legal expert, found buried in our Constitution.

To say the performance of the Republican Senators during impeachment has been an embarrassment is to be kind.  But it apparently won't end with the impeachment trial.  Iowa Senator Joni Ernst continues to gloat about the trial outing the supposed corruption of Joe Biden.  Back in the real world, Biden did absolutely nothing wrong.  The Ukraine prosecutor Biden pushed (at the behest of President Obama and scores of others) to get fired had long ago stopped investigating Burisma, the company his son, Hunter, was on the board of.  In fact, that stopped investigation and several others is why virtually everyone was pushing to get rid of the Ukraine prosecutor widely viewed as corrupt.  Biden's actions didn't stop an investigation of his son's company.  It in fact, made it possible for the investigation of Burisma to be restarted.  No doubt, Senator Ernst knows all of this.  But one you thing you learn in the Trump era is if the truth does not advance the cause politically, just tell a lie instead. 

Now South Carolina Senator Lindsey Graham is giving interviews in which he says he will subpoena the whistleblower whose report that sparked the investigation that led to impeachment.  Never mind that everything in the whistleblower report turned out to be true and the whisteblower became irrelevant the minute evidence was found supporting those claims, Graham and several Senators still want the whistleblower outed, which action they undoubtedly know will put his life in danger.  Their purpose behind doing so is clear - that want to intimidate future whistleblowers from speaking out about the wrongdoing they witness in the executive branch.

I have long preached that Donald Trump is not the cause of the Republican Party's problems.  Rather Trump is the symptom.  As a candidate and recent Republican convert, Trump swooped in and took advantage of a political party whose conservative intellectual moorings had been stripped away.  Trump filled in that vacuum with his own flexible version of populism and nationalism, which often had little if anything to do with the conservative positions that underpinned the rise of Ronald Reagan four decades earlier.

The problem is not Trump.  The problem are his enablers, the people who decided to surrender the Republican Party completely to Trump and have refused to hold him accountable for anything he has done.  As someone who studies election trends, I just do not understand those Republicans who think the GOP's long-term future is Trump, a political candidate who has shown virtually no electoral strength.  In 2016, Donald Trump won the electoral college by 78,000 votes in three key states, one of the closest presidential elections in American history.  In the process, Donald Trump ran behind virtually every Republican statewide candidate.  In almost every special and regular election in 2017, 2018 and 2019, the support for Republican candidates declined dramatically.  This included in 2018, when Republicans suffered historic losses in the House despite heavily gerrymandered maps in the GOP's favor.  Exit polls show women, suburbanites and college-educated voters fleeing the Republican Party in droves during the Trump era. 

As far as 2020 goes, Trump runs behind virtually every Democratic candidate and his popularity level has never reached 50% despite having a strong economy.  Any other Republican President would be cruising to re-election.  While Trump may still win re-election because of the strong economy (which he did not create by the way...Presidents do not run the American economy) and the foolishness of Democrats, who appear eager to nominate the avowed socialist, Bernie Sanders.  While Trump is one of the few Republican presidential candidates who could actually lose to a socialist, the odds of his winning go way up if the Democrats nominate someone on the far left such as Sanders or Massachusetts Senator Elizabeth Warren instead of a moderate. 

While the Electoral College and the Dershowitz Doctrine, which sanctions a President cheating to win re-election, may save the White House for the GOP, the Republicans in Congress and state legislatures have no such protection and will continue to lose seats in the Trump era.  Republican Senators, in particular, will pay a price at the polls for their conduct during the impeachment.  Voters know that trials are supposed to have witnesses and evidence and what Republicans in the Senate did was doing was covering up the corrupt actions of a corrupt President.

Most of the intellectuals who provided the ballast for Republican policies have fled the party in the Trump era.  They saw the GOP, a party that used to be based on conservative ideals, becoming a party that is willing to condone and cover up corruption by a President that they refuse, at all costs, to hold accountable. 

As I write this, I see a law school classmate of mine, Ed Adams, has announced he is leaving the Republican Party.  So too has one of my brothers.  That is not a choice I have made.  I think the best choice of action is for real conservatives and the intellectuals is to fight to get the Republican Party (or whatever name it will be known by in the future) back.  There is certainly no future in Trumpism.  The general election electorate is sending that message at every election. 

Today's Republican Party, the conservative party I chose to associate myself with in my youth, has become instead the party of corruption and cover-up.  And that makes me incredibly sad.

Tuesday, January 28, 2020

Downtown Indy Needs BlueIndy Parking Spaces Back

Late last year it was announced that the electric car service company, BlueIndy, was ceasing operations.   BlueIndy was one of the many hair-brained ideas that came during the Ballard administration, ideas that almost always involved taxpayers subsidizing private business.

This is how Blue Indy describes itself:
BlueIndy is a revolutionary 100% electric self-service car sharing service in Indianapolis available 24/7. The BlueIndy system will be the largest electric car share service in the U.S. when complete. The service is part of the city’s transit strategy. Stations throughout Indianapolis will offer the membership-based car share service as well as electric vehicle charging infrastructure for public use. 
BlueIndy is a subsidiary of the Bolloré Group which is among the world's 500 largest companies. 
Despite being given free prime parking spaces throughout Indianapolis, BlueIndy could not turn a profit.  Not a surprise.  The spaces were almost always occupied by unrented BlueIndy vehicles taking up valuable parking spaces. 

If you have been downtown lately, you will know it is a mess for those of us still driving vehicles  Scores of traffic lanes have been taken away in favor of dedicated Red Line bus and bike lanes.  Numerous traffic signals have been added providing different options which do little more than confuse everyone.  In some places, parking has been moved off the curb so that parked cars appear to be in traffic lanes. 

The other day I drove from 16th and Capital to Maryland and Capitol, about 2 miles.  It took me 30 minutes.  Downtown traffic was just one big parking lot at rush hour.

But let's return to the parking issue   Finding on-street parking in the middle of the day near the City-County Building is virtually impossible.  You might drive around for 30 minutes looking for a space.  Scores of parking spaces have been removed to create dedicated bus and bike lanes.  And then you have the numerous BlueIndy cars taking up valuable parking spaces.

Not only have Indianapolis residents lost out on valuable parking spots, we are paying for those lost spots.  Yep, when Indianapolis privatized on-street parking several years ago (another hair-brained Ballard idea), we agreed to pay ACS (ParkIndy) for each parking spot taken out of commission as if they were fully-occupied six days a week. 

When BlueIndy moves out of the spots, city officials need to return those spots for the use they were intended - on street parking.

Tuesday, January 21, 2020

An Impeachment Richly Deserved

In a few hours the third presidential impeachment "trial" in American history will begin.  I hesitate to call it a "trial" because it is still not clear that the Republican-controlled Senate will agree to hear witnesses and evidence, or even whether that body will consider the documents and witness testimony gathered by the House.  

Andrew Johnson was the first President impeached. That effort, in 1868, fell one vote short of
conviction in the Senate.  In 1998, President Bill Clinton was impeached for perjury and obstruction of justice.  His conviction on those charges failed by votes of 45-55 and 50-50.  In the 100 member Senate, 67 votes are needed for a conviction.

At the time, I supported Clinton's removal from office.  My view over the years has changed however,.  I still believe Clinton committed a felony (perjury) and, no, you don't get a free pass to lie when the issue is sex.  Also, it should not be overlooked that Clinton was carrying on a sexual affair with a subordinate in the workplace.  That's not right and to the Democrats credit, most at the time acknowledged that Clinton's conduct was wrong.  But most of those Democrats also took the position that Clinton's conduct was not impeachable and I agree with that now.  As heinous as Clinton's conduct was, that conduct did not directly relate to his presidential duties.  I think that should generally be the standard for impeachment.

The Trump's impeachment is most similar to the impeachment charges against Richard Nixon that were voted out by the House Judiciary Committee in 1974.  Those charges were 1) obstruction of justice for Nixon's attempt to impede the investigation of the Watergate break-in; 2) abuse of power 
for using his office to compel federal agencies to target his enemies; and 3) contempt of Congress for refusing to comply with congressional subpoenas.

I was only 13 in 1974, but I followed the Nixon impeachment hearings quite closely.  (Nixon, of course, resigned before the full House could impeach him.)  Donald Trump's transgressions make Richard Nixon's look like jaywalking. There is no comparison.

In 2016, Donald Trump accepted the help of a hostile foreign power, Russia, to win an American election.   It is illegal for foreign powers to involve itself in American elections.  And it is illegal for candidate to solicit that help.  At the very least, the candidate can be charged with a criminal campaign finance violation.

As the 2020 election approached, Donald Trump decided he would cheat again.  This time he used his office to "encourage" Ukraine into announcing an investigation of his chief political rival, Joe Biden, so he could try to paint Biden as "corrupt."  (I find it ironic that the most corrupt President in my lifetime, by far, thinks corruption is a good issue for him.).  To accomplish this goal, Trump, through intermediaries, offered Ukraine's President Zelensky a bribe - already appropriated military aid that Ukraine desperately needed for survival in defending itself against Russia.  (Never mind that Trump had no actual authority to impound the congressionally appropriated money.)  Trump was willing to put America's national security at risk for his own selfish, political reasons.  So much for Trump being a "patriiot."

And, no, Trumpers, the "transcript" (it was actually just notes) of the phone call does not exonerate Trump. Not even close.  Not that the phone call is the only evidence of Trump's Ukraine scheme.  Far from it.

When the House tried to investigate the Ukraine scheme, Trump immediately went into cover-up mode, attempting to block executive branch witnesses from testifying and refusing to turn over a single document (beyond the so-called "transcript").  The claim that executive privilege allows Trump to do this is laughable.  Nixon attempted to take the same approach when the White House recordings were subpoenaed.  The Supreme Court ruled 8-0 that Nixon executive privilege claim as to the tapes was invalid.  While a President can exert executive privilege when applicable, that privilege is not a blanket that allows a President to bar all witnesses or refuse to hand over any documents. The notion that Congress has no recourse but to run to court every time the President or other executive branch official refuses to comply with a subpoena by offering a bogus claim of blanket executive privilege is nonsensical.  

The House's impeachment charges against Trump are for 1) abuse of power; and 2) contempt of Congress.    Not only are both charges richly deserved, they only scratch the surface for what Trump could be charged with.  

As a Republican, I am greatly disheartened that so many people in my party, including those in Congress, want to give Trump a pass on behavior they would never in a million years accept from a Democratic President.  You would think they'd try to argue otherwise, but most do not.  It is a sign of today's tribalism, that they don't even protest when you point out their hypocrisy.  All that matters is what uniform the players are wearing.

History is watching.  History will judge Republican Senators harshly if they abdicate their responsibility to carefully consider the evidence and, instead, exonerate an obviously guilty President.  

Wednesday, December 11, 2019

Critics of Today's Political Environment Need to Stop Blaming Trump

Critics of today's destructive political environment point the finger at President Donald J. Trump as the culprit.   That would be wrong.  Trump is a symptom of today's current political climate.  He is not the cause of that climate.

Trump pictured with Russian Foreign Minister Lavrov yesterday.
Before Trump was elected President, he was a failed, dishonest businessman.  Banks would not loan
him money and the people of New York City considered him to be a joke.  The only success Trump ever personally achieved in life, before being elected President, was his reality show, the Apprentice, in which he pretended to be the successful businessman he never was in real life.  Even that success was fleeting as the show's ratings took a dive the last few seasons and was on its way to being cancelled when Trump bailed.

Candidate Trump warmly accepted, even publicly solicited, help from Russia to win the 2016 election.  As the 2020 election approaches, President Trump has decided he is going to try to cheat again, this time by using his office to coerce Ukraine into giving him political ammunition against Joe
Biden, his probable general election opponent. (He also China for dirt on Biden and Elizabeth Warren, another potential general election rival.) In the process, Trump has put Ukraine's future and America's national security at risk. Trump clearly does not think he can win an election without foreign interference and, given his anemic approval ratings, he may be right.

For anyone who has followed Donald J. Trump's career, his transgressions in office do not represent new behavior.  Trump has always been extremely dishonest (some would call him a pathological liar), incompetent, selfish, immoral, ignorant, and completely uneducated about about the issues.  You could walk into any downtown Indianapolis building after business hours, find a janitor cleaning toilets and that person would be better suited to be President of the United States than Donald J. Trump

As I write this, the U.S. House is moving forward with impeaching President Trump.  The two articles drafted by the Democratic leadership are for abuse of power for Trump using his office (not using past tense because those efforts continue to this very day) to coerce a foreign power to help him with his re-election efforts and obstruction of Congress for blocking any cooperation with the probe into his actions.  

People need to stop blaming Trump.  President Trump is operating exactly as he did when he was pretending to be a successful businessman. Instead blame the enablers, people who helped elect such an unqualified disgrace to the highest office in the land and then decided he should never be held accountable for his actions.

Those enablers include members of Congress.  You could count on one hand the number of Republicans in the House and Senate who think that what Trump is doing with Ukraine is perfectly fine. If President Obama or a President Hillary Clinton pulled the stunt Trump did, you can bet that GOP members of Congress would be unanimous in supporting impeachment.  But those Republicans have decided to put their their own electoral interest (which requires blind, unwavering loyalty to Trump) ahead of what is in best for the country and the Republican Party.  Regarding the latter, make no mistake about it, the GOP will pay a very high price for being on the wrong side of history.

While Republican elected officials who look the other way are a problem, the worst enablers are members of the so-called conservative media (a term I loathe as many long ago stopped acting like real conservatives) who have decided that honesty and integrity in our politics no longer matter. All that matters is Us v. Them, i.e. tribal warfare.  If our side does something, it is by definition is right.  If the Democrats do it, it is not only wrong, it is evil.

Many members of the conservative media decided to throw away their intellectual integrity to go all in on Trump not because they believe in him, but supporting Trump is the only way to get the audience needed to stay on the air  I am talking people like Sean Hannity, Lou Dobbs, Laura Ingraham, Tucker Carlson, Rush Limbaugh, Mark Levin...the list of these sell-out television and radio personalities is endless.  But the Trump effect on the conservative media is not just national...it is local as well.  Here in Indianapolis, we have WIBC "conservative" radio hosts such as Hammer and Nigel, Tony Katz, and the Chicks on the Right.  Probably the worst Trumper locally though is Chicks' producer and WIBC guest host Rob Kendall who never lets actual facts get in the way of presenting Trump talking points.  While the aforementioned media types seem to be just playing a role as Trump supporters to collect a paycheck, one gets the sense Kendall actually believes the propaganda he spouts.

The Trump-worshiping conservative media has created an echo chamber of alternative facts and conspiracy theories that shield Republican voters from reality.  When conservatives want the latest news, they turn on FoxNews and watch hosts Hannity, Ingraham, and Tucker Carlson, none of whom feel compelled to be balanced, or even factual, in discussing recent developments.  But as bad as the Fox News and radio hosts like Limbaugh and Levin can be, it is even worse when those conservatives turn to social media.  Twitter and Facebook offers even more outrageous "facts" and conspiracy theories than the more mainstream commentators could ever muster. 

Regardless of the information source, the approach is always the same: provide the audience tuning what they want to hear so they come back.    It doesn't matter if it is not factual.  All that matters is whether the audience is being fed what they want to hear so they will come back. The truth be damned.

Stop blaming Trump.  Blame the people who made a Donald J. Trump possible. They are the ones who need to be held responsible for today's toxic political environment.

Friday, December 6, 2019

Turley's Position Congress Must Work Through Courts to Enforce Subpoenas Not Supported by Fox News Legal Experts, His Own Previous Testimony

Prof. Jonathan Turley
Earlier this week, the House Judiciary Committee held a hearing with four constitutional law experts to discuss impeachment.  Three of the law professors, who were called as witnesses by the Democrats, said the bar for impeachment had been met.  The fourth one, Prof. Jonathan Turley, who teaches at the George Washington University Law School, disagreed.  Prof. Turley, the Republican's witness, said the Democrats had not yet compiled the evidence to make the case.  Of course, much of that is due to the fact President Trump has ordered employees of the executive branch to ignore all congressional subpoenas in the impeachment probe, i.e. to not testify or turn over any documents.

Turley argued that Trump's ordering executive employees to not comply with subpoenas  is not obstruction of justice.  The professor instead said that Congress must work through the courts to enforce its subpoenas and, until it does that and the President doesn't comply after the final appellate court rules on the issue, there is no obstruction of Congress  Of course, Congress being forced to litigate all the way to the United States Supreme Court every time it wants to enforce a congressional subpoena allows President Trump to run out the clock on impeachment.

Prof. Turley's position as to impeachment is so completely unfathomable, so bizarre even Fox News legal analysts disagreed with it.  Newsweek reports: 
[Judge Andrew} Napolitano said that the House has power of impeachment which supersedes the president's executive privilege. While mentioning the Supreme Court's ruling that the president has a limited executive privilege when documents are requested from the judicial branch, Napolitano pointed out that was not the source of the request. 
He added that the president's executive privilege only extends to matters of military, diplomatic and national security matters. 
While Napolitano mentioned his friendship with Turley, he said that Turley was "forgetting" that the House has sole—"s-o-l-e"—power of impeachment. 
"It doesn't need to go to a court for approval, it doesn't need to go to court to get its subpoenas enforced." Napolitano continued. "When the president receives a subpoena—or in this case, Mick Mulvaney, Mike Pompeo receive a subpoena—and they throw it in a drawer, they don't comply or challenge because the president told them to, that is the act of obstruction." 
He concluded that Turley's argument that the House needs to go to court to have their subpoenas enforced was a "misreading" of the Supreme Court ruling. 
Andy McCarthy, another guest on the panel, agreed with Napolitano's interpretation. 
"We could debate all day about whether a particular obstructive act would qualify as the framers' idea of a high crime and misdemeanor. The fact of the matter is, if it was trivial, or if it was a one-off, or if it was not suggestive of a heinous pattern of conduct, that Congress would not dare try to impeach over it," McCarthy said."I don't think the framers would have thought to that the Article 1 branch needed the assistance of the Article 3 branch to impeach an officer of the Article 2 branch," he added. "I don't think that's conceivable."
It should be added that McCarthy is a former prosecutor in the Southern District of New York, a National Review columnist, and a consistent presence on Fox News defending 99% of the time every position taken by the Trump administration. It would be hard to find a more loyal Trumper than Andrew McCarthy.
But there is someone else who doesn't agree with Professor Turley.  His name is...Professor Turley.  In June of 2016, Turley testified before the U.S. House which was investigating the alleged misconduct of the then IRS Commissioner John Koskinen who was accused of using his office to target conservative groups.  In his written statement, Turley bemoaned the increasing practice of the Obama administration not complying with congressional subpoenas.  Prof. Turley argued that Congress did not have to work through the courts to seek compliance, that Congress, under Article I, had the inherent power to enforce its own subpoenas.  2016 Prof. Turley also said executive branch non-compliance with congressional subpoenas is an obstructive act.  2019 Prof. Turley says that the executive branch has not committed an act of obstruction until it does not comply with court orders enforcing congressional subpoenas.

Unfortunately, it does not appear that anyone at the hearing confronted Prof. Turley about his evolving (devolving?) legal position regarding congressional subpoenas.  Even more unfortunately, Democrats on the Judiciary Committee didn't take the opportunity to call any of the scores of conservative, Republican legal scholars who support their position on impeachment and enforcement of congressional subpoenas.  It was a missed opportunity.

Thursday, December 5, 2019

Analysis Show Democrats in 2018 Made Significant Gains in Indiana State House Races


One thing that's always been true about Indiana politics  (at least as long as I can remember) is that Democratic candidates generally do better during presidential election years than during mid-terms.  In short, Hoosier Democrats typically are not as good at going to the polls as Republicans. Indiana Democrats tend to only want to show up for the big marquee event every four years when the Presidential race is on the ballot.

But Democrats, since Trump's election in 2016, have been energized and mobilized, even in the Hoosier state.  That's showing up in the numbers.

I did a comparison of the D v. R vote in Indiana state house races, 2016 v. 2018.  In particular I looked at those that had major party candidates squaring off in the district in both years.  Of the 100 house races, I found 50 had major party competition in 2016 and 2018.  Of those 50, Democratic candidates saw an increase in their percentage of the vote in 37 districts

Not surprisingly, the greatest movement toward Democrats has been in the more suburban districts, particularly around Indianapolis.  Below is a chart showing the numbers in the districts in which Democrats gained 3% or more.

Dist
2016 D Pct
2018 D Pct
Change
Winner 2018
87
52.2%
62.2%
10.0%
  Hamilton (D)
88
34.7%
44.5%
9.8%
  Bosma (R)
37
36.0%
45.5%
9.5%
  Huston (R)
26
47.4%
56.7%
9.3%
  Campbell (D)
75
30.8%
38.8%
8.0%
  Bacon (R)
81
39.1%
46.3%
7.2%
  Carbaugh (R)
39
36.1%
43.0%
6.9%
  Torr (R)
90
33.3%
39.7%
   6.4%  
  Speedy(R)
93
32.6%
37.6%
5.0%
  Frizzell (R)
41
22.1%
26.8%
4.7%
  Brown (R)
63
28.2%
32.8%
4.6%
  Lindauer (R)
15
45.7%
50.2%
4.5%
  Chyung (D)
60
36.6%
41.0%
4.4%
  Mayfield (R)
89
45.4%
49.5%
4.1%
 Kirchhofer (R)
55
23.7%
27.8%
4.1%
  Ziemke (R)
84
33.9%
37.4%
3.5%
  Morris (R)
23
29.6%
33.0%
3.4%
  Manning (R)
58
33.4%
36.7%
3.3%
  Burton (R)
32
25.1%
28.4%
3.3%
  Cook ( R)

Obviously, the transformation of retiring Speaker Brian Bosma's district into a competitive battleground stands out  Bosma could have faced some stiff competition in 2020.  Now that he is bowing out, picking up seat will be an even bigger priority for the Democrats.

Just north of Bosma's district is that of the next Speaker-Elect Todd Huston.  Like Bosma, Huston's district has suddenly become competitive.  Making him a target in the next election will likely cause him to spend precious resources protecting his own turf instead of helping fellow Republican incumbents.  

Then there is District 91.  Anchored on the southwest side of Indianapolis, the district is  represented by Republican Robert Behning.  In 2016, Democrats did not even have a challenger against Behning.  In 2018, Democrats not only found a candidate, he received 40% of the vote.  

Note: as a rule of thumb, once the losing party gets to 40%, it is considered a competitive district.  When it gets to 45%, it is highly competitive.  That is a very general rule though as factors like incumbency affect the competitiveness of a district.

There were a few House districts in which the Democratic incumbents lost ground in 2018.  Districts in which Democrats saw their numbers drop 3% or more are in the following table:

Dist
2016 D Pct
2018 D Pct
Change
Winner 2018
65
37.3%
30.7%
-6.6%
May (R)
66
60.3%
54.6%
-5.7%
Goodin (D)
56
38.7%
33.1%
-5.6%
Barrett (R)
11
39.5%
34.7%
-4.8%
Aylesworth (R)
42
43.4%
39.6%
-3.8%
Morrison (R)
68
24.9%
21.3%
-3.6%
Lyness (R)

Those are the more rural districts.  In addition to Goodin's district, Republicans appear to have an excellent shot at picking up District 35 which went from 52.5% Democrat in 2016 to 50.6% in 2018.

As Republicans hold 67 of the 100 seats in the Indiana House, the GOP will almost certainly hold onto its majority after the 2020 election.  But the data suggest Republicans will continue to lose seats as suburban districts continue to become more favorable to Democrats.