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.

2016 D Pct
2018 D Pct
Winner 2018
  Hamilton (D)
  Bosma (R)
  Huston (R)
  Campbell (D)
  Bacon (R)
  Carbaugh (R)
  Torr (R)
  Frizzell (R)
  Brown (R)
  Lindauer (R)
  Chyung (D)
  Mayfield (R)
 Kirchhofer (R)
  Ziemke (R)
  Morris (R)
  Manning (R)
  Burton (R)
  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:

2016 D Pct
2018 D Pct
Winner 2018
May (R)
Goodin (D)
Barrett (R)
Aylesworth (R)
Morrison (R)
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.