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History’s Rhyme, Part 4: Contempt Then, Contempt Now

[NB: Check the byline, thanks! /~Rayne]

I’ve previously looked at example Articles of Impeachment against Trump in this series of posts:

History’s Rhyme: Nixon’s Articles of Impeachment — focus on Obstruction of Justice

History’s Rhyme, Part 2a: ‘Abuse of Power’ Sounds So Familiar — Abuse of Power (may include Public Corruption)

History’s Rhyme, Part 3: How Nixon’s Impeachment Unfolded — Watergate and Nixon’s near-impeachment timeline

I still plan to return to do Part 2b to address more abuses of power in the near future. He’s racking them up faster than I can record and draft the rest of Article 2.

I’m still working on Article 4 and more related to violations of treaties and foreign policy failures, as well as human rights violations.

Let me note at this point the curious coincidence that The New York Times’ editor has published an article today with spiffy graphics comparing Nixon and Clinton Articles of Impeachment to articles Trump might face. What a topic; what amazing timing, six weeks after I began this series…

~ ~ ~

As noted before, the 93rd Congress’ House Judiciary Committee drafted five Articles of Impeachment against Richard M. Nixon in 1974. Only three of the five were passed by the committee; the first two were related to Obstruction of Justice and Abuses of Power. The misuse of government resources to spy on individuals and political opponents combined with Nixon’s efforts to thwart subsequent investigations into these abuses were impeachable on their own.

Nixon, however, doubled down and tried to withhold materials responsive to the Senate Watergate Committee’s, the special prosecutor’s, or the House investigation into the abuses of power which were revealed by the Pentagon Papers and the Watergate break-in.

How very familiar this feels, given how utterly uncooperative Trump and his administration have been in response to House Committee requests and subpoenas.

In July 1973 the Senate Watergate Committee and special prosecutor Archibald Cox both requested tapes recorded in the Oval Office; Nixon refused to comply.

On October 19, Nixon instead offered a compromise: Senator John C. Stennis would listen to the tapes for the special prosecutor’s office. Stennis had a hearing disability making this compromise untenable; Cox refused the offer.

Nixon ordered the Attorney General Eliot Richardson and Deputy Attorney General Ruckelshaus to fire Cox. They chose to resign instead. Next at bat was the Solicitor General Robert Bork who fired Cox on October 20, 1973. The resignations and Cox’s firing became known as the “Saturday Night Massacre.”

Cox’s successor Leon Jaworski subpoenaed the tapes on April 16, 1974. The White House offered only partial compliance by offering edited transcripts of the tapes on April 30.

Jaworski and the House Judiciary Committee insisted unedited actual tapes must be released in full; a deadline of May 31 was set for compliance.

Nixon’s special counsel James D. St. Clair went before Judge John Sirica of the U.S. District Court for the District of Columbia to quash the subpoena. Nixon’s motion was denied. Sirica ordered Nixon to turn over the tapes by May 31, 1974.

Special prosecutor Jaworski and Nixon appealed directly to the Supreme Court in United States v. Nixon. The court began to hear arguments on July 8.

The court delivered a unanimous decision on July 24, affirming the D.C. District Court’s order that subpoenaed materials be transmitted to that court.

Three days after the legal battle over the tapes ends, the House Judiciary Committee drafted and began to pass three of five Articles of Impeachment.

Sixteen days after the United States v. Nixon decision, Nixon resigned rather than face a trial before the Senate.

~ ~ ~

The third Article of Impeachment against Nixon was the simplest of the three the House Judiciary Committee passed. In essence it said Nixon had

…  failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. …

This itemization was sandwiched an opening and a closing statement in total, Article 3 was a whopping 281 words long. Short and sweet, it only addressed contempt of Congress and not Nixon’s failure to comply with the special prosecutor’s requests or the Senate Watergate Committee’s requests.

Now compare that to a theoretical Article 3 against Trump:

Article 3 – Contempt of Congress

In his conduct of the office of President of the United States, Donald J. Trump, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce testimony, papers and things as directed by duly authorized requests and subpoenas issued by the Committee on the Judiciary of the House of Representatives.

On the matter of Security Clearance:

The House Oversight Committee, while investigating the White House and Transition Team disregard for established procedures for safeguarding classified information, requested voluntary testimony from U.S. Defense Department’s Carl Kline on four occasions – January 23, 2019, February 11, 2019, March 1, 2019, and March 18, 2019. Mr. Kline failed to respond to these requests, and the White House refused to make him available. After testimony from whistleblower Tricia Newbold on April 1, 2019, the Committee received last-minute letters from Mr. Kline’s lawyer and the White House saying he would voluntarily comply. However, they made clear that he would not answer questions about specific officials, specific security violations, or specific security clearance adjudications, but instead would speak only about general policies and procedures.

On the matter of 2020 Census:

During the House Oversight Committee’s investigation into the Trump Administration’s secret efforts to add a citizenship question to the 2020 Census, Secretary Ross and other Department of Commerce (DOC) officials asserted multiple times before House Oversight Committee (May 8, 2018), House Committee on Appropriations (March 20, 2018), the House Committee on Ways and Means (March 22, 2018), the Senate Committee on Appropriations (May 10, 2018) that the decision to include a citizenship question on the 2020 Census arose from a request from the Department of Justice in December 2017. Internal documents dated March 10, 2017; April 5, 2017; May 2, 2017; July 21, 2017; August 9, 2017; and September 16, 2017 made public show that Secretary Ross took steps to add the citizenship question to the 2020 Census months before the DOJ’s request. The House Oversight Committee identified priority documents, extended deadlines, and offered to review certain documents in camera. The White House continued to avoid compliance with requests for information necessary to determine the real reason Secretary Ross added the citizenship question, obliging the Committee to subpoena Secretary Ross for testimony and documents.

On the matter of Potential Foreign influence on the U.S. Political Process:

As part of their oversight authority and their subsequent investigation into allegations that Russia and other foreign entities to influence the U.S. political process during and since the 2016 U.S. election, both House Committees on Intelligence and on Ways and Means have sought Donald J. Trump’s financial records to determine whether U.S. financial system was used for illicit purposes including unlawful influence through foreign banks operating in the U.S. with longtime relationships with Trump and past ties to Russian money laundering. Subpoenas were served on Deutsche Bank and Capital One for records related to their business transactions with the Trump family and Trump Organization. On April 30, 2019, the Trump family and Trump Organization filed a lawsuit against these financial institutions to prevent them from complying with the Congressional subpoena, thereby obstructing the Committees’ investigation. The D.C. District Court ruled on May 22, 2019 against the Trump family and Trump Organization but they have since filed an appeal.

On the matter of the Special Counsel’s Investigation:

The House Judiciary Committee, while investigating the Trump administration for possible obstruction of the Special Counsel’s investigation into foreign interference with the 2016 election, has subpoenaed former White House counsel Don McGahn to appear before the committee to discuss Donald J. Trump’s attempt to remove Special Counsel Rober Mueller and possible subornation of perjury. Special Counsel had previously interviewed Mr. McGahn while Mr. McGahn was still employed as White House counsel. Mr. McGahn no longer works for the White House and was subpoenaed after his employment ended. Donald J. Trump has since said he does not want his aides to testify before Congress. He also said, “We’re fighting all the subpoenas.” Attempts to obstruct justice and suborn perjury are not reasons for compelling confidentiality.

— TO BE CONTINUED — ]

Donald J. Trump has willfully disobeyed, or directed, or authorized disobedience by executive branch officials of such requests and subpoenas. The requested and subpoenaed testimony, papers, and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential acts, direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President.

In refusing to produce these testimony, papers, and things Donald J. Trump, substituting his judgment as to what materials were necessary for the inquiry, interposed the Article II powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by Article I of the Constitution in the House of Representatives.

In all of this, Donald J. Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Donald J. Trump, by such conduct, warrants impeachment and trial, and removal from office.

Take careful note: this theoretical article of impeachment is not complete, both because I haven’t fully documented every occasion when Trump and his administration have failed to comply with Congress’s requests and subpoenas, and because noncompliance is ongoing. The itemization of acts of contempt of Congress could be at least twice as long.

What else should be added which would qualify as contempt of Congress by the Trump administration?

~ ~ ~

Now here’s where it gets sticky, before I even look at another theoretical Article of Impeachment as I intend to do. We are at the point right now in the timeline that the Senate Watergate Committee, Special Prosecutors Cox and Jaworski, and the House Judiciary Committee were at in between October 1973 and May 1974, before the House began an impeachment inquiry. Trump and his administration have already ignored or rejected requests for testimony, papers, and things issued by both the Special Counsel’s Office and by Congress.

What Special Counsel Robert Mueller did not do was fight all the way to the Supreme Court to revisit United States v. Nixon.

At this point I want to make very clear what follows is my personal speculation, along with a reminder that I am not a lawyer.

I believe Mueller did not want to take the demand for Trump’s testimony and other papers and things all the way to the Supreme Court because the court’s current composition and its decisions have not instilled confidence in its ability to recognize the United States v. Nixon decision as settled, let alone trust the court will recognize Congress’s Article I powers of oversight and its co-equal status.

I believe Mueller recognized that Trump has no respect for the law or norms; it would be a horrible sacrifice to disturb the court’s decision in United States v. Nixon only to have Trump refuse to recognize the authority of any decision the court made against him.

I believe Mueller may have made an impeachment referral for exactly this reason — the solution isn’t to take this matter to the Supreme Court which is what Trump wants, before a bench which was skewed in 2016 by Senate Majority Leader Mitch McConnell’s refusal to allow former President Obama his nominated choice, Merrick Garland.

The solution is for the House to impeach Trump based on his ample failings to date as president.

Further, I believe it is up to the public to demand the Senate do its duty to try, convict, and remove Trump from office before he does any more damage to the nation including undermining Congress’s Article I powers. As long as Trump remains in office he poses a threat to the Constitutionally-described three co-equal branches of government which have served this nation since ratification of the Constitution 230 years ago.

Some will say that we can remove Trump ourselves as voters at the polls in 2020. Should we really wait that long when we have already made a choice at the polls to elect representatives who are enabled by the Constitution to rectify gross failings of civil officers who have committed High Crimes and Misdemeanors?

~ ~ ~

A republic, if you can keep it,” Ben Franklin explained when asked what form our government would take upon leaving the Constitution Convention.

What will you do to keep it? I’m looking at you, all 538 members of Congress elected to represent us, who swore an oath to uphold and defend the Constitution.

I’m looking at you, the people referred to in the Constitution’s Preamble; will you call your representative and two senators and insist on impeachment and removal?

Wednesday Morning: All the Range from Sublime to Silly

We start with the sublime, welcoming astronaut Scott Kelly back to earth after nearly a year in space — 340 days all told. Wouldn’t you like to know how these first hours and days will feel to Kelly as he regains his earth legs?

And then we have the silly…

Apple’s General Counsel Sewell and FBI Director Comey appeared before House Judiciary Committee
You’d think a Congressional hearing about FBI’s demand to crack open Apple iPhone would be far from silly, but yesterday’s hearing on Apple iPhone encryption…Jim Comey likened the iPhone 5C’s passcode protection to “a guard dog,” told Apple its business model wasn’t public safety, fretted about “warrant-proof spaces” and indulged in a thought exercise by wondering what would happen if Apple engineers were kidnapped and forced to write code.

What. The. Feck.

I think I’ll read about this hearing in French news outlets as it somehow sounds more rational: iPhone verrouillé: le patron du FBI sur le gril face au Congrès américain (iPhone locked: FBI boss grilled by US Congress – Le Monde). Other kickers in Comey’s testimony: an admission that a “mistake was made” (oh, the tell-tale passive voice here) in handling the San Bernardino shooter’s phone, the implication that the NSA couldn’t (wouldn’t?) backdoor the iPhone in question, and that obtaining the code demanded from Apple would set precedent applicable to other cases.

Predictably, Apple’s Bruce Sewell explained that “Building that software tool would not affect just one iPhone. It would weaken the security for all of them.” In other words, FBI’s demand that Apple writes new code to crack the iPhone 5C’s locking mechanism is a direct threat to Apple’s business model, based on secure electronic devices.

Catch the video of the entire hearing on C-SPAN.

Facebook’s Latin American VP arrested after resisting release of WhatsApp data
Here’s another legal precedent, set in another country, where a government made incorrect assumptions about technology. Brazilian law enforcement and courts believed WhatsApp stored data it maintains it doesn’t have, forcing the issue by arresting a Facebook executive though WhatsApp is a separate legal entity in Brazil. Imagine what could happen in Brazil if law enforcement wanted an Apple iPhone 5C unlocked. The executive will be released today, according to recent reports. The underlying case involved the use of WhatsApp messaging by drug traffickers.

USAO-EDNY subpoenaed Citigroup in FIFA bribery, corruption and money laundering allegations
In a financial filing, Citigroup advised it had been subpoenaed by the U.S. Attorney’s office. HSBC advised last week it had been contacted by U.S. law enforcement about its role. No word yet as to whether JPMorgan Chase and Bank of America have been likewise subpoenaed though they were used by FIFA officials. Amazing. We might see banksters perp-walked over a fútbol scandal before we see any prosecuted for events leading to the 2008 financial crisis.

Quick hits

I’m out of here, need to dig out after another winter storm dumped nearly a foot of the fluffy stuff yesterday. I’m open to volunteers, but I don’t expect many snow shovel-armed takers.

The 3 Hop Scotch of Civil Liberties and Privacy

I was in court, so I didn’t see it, but apparently there was a little hearing over at House Judiciary Committee this morning on “Oversight of the Administration’s Use of FISA Authorities“. There was an august roll of Administration authorities and private experts: Mr. James Cole, United States Department of Justice; Mr. John C. Inglis, National Security Agency; Mr. Robert S. Litt, ODNI; Ms. Stephanie Douglas, FBI National Security Branch; Mr. Stewart Baker; Mr. Steven G. Bradbury; Mr. Jameel Jaffer; and Ms. Kate Martin.

Hmmm, let’s take a look and see if anything interesting occurred (as reported by Pete Yost of AP). Uh, well, there was THIS:

For the first time, NSA deputy director John C. Inglis disclosed Wednesday that the agency sometimes conducts what’s known as three-hop analysis. That means the government can look at the phone data of a suspect terrorist, plus the data of all of his contacts, then all of those people’s contacts, and finally, all of those people’s contacts.

If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.
….
The government says it stores everybody’s phone records for five years. Cole explained that because the phone companies don’t keep records that long, the NSA had to build its own database.

Go read all of Yost’s report, there is quite a bit in there that is stunning in the blithe attitude the Administration takes on this hoovering of data and personal information. Also clear: Congress has no real grasp or control of the government’s actions. The Article I brakes are out and the Article II car is accelerating and careening down the road.

Tim Griffin: Rove’s US Attorney Project Comes Full Circle

Remember the entire point of Karl Rove’s plot to fire a bunch of US Attorneys and replace them with partisan hacks? It was to advance the political career of the new USAs.

Perhaps his most prominent success on that measure is Chris Christie. Though Christie abandons his state even in the face of blizzards–and then blames the resulting chaos on New Jersey’s cities–he is still (implausibly) mentioned as a potential 2012 presidential candidate.

But the true measure of Rove’s success at politicizing the DOJ comes in the form of Tim Griffin.

Griffin, you’ll recall, has a history of leading the GOP’s vote caging operations in 2000 and 2004. Seemingly to reward Griffin for doing such important dirty work–and also to boost the career of such a loyal hack–Rove pushed hardest to make sure that Griffin got the US Attorney position he wanted in his native Arkansas. And though he only stayed on the job until it became clear the Republicans were trying to “gum [his appointment] to death”–to basically run out the clock on any confirmation–he was actually only US Attorney for a matter of months.

No matter, between that and solid GOP backing, Griffin won election to Arkansas’ 2nd Congressional District.

And now, TPMM reports, Griffin has been placed by Republicans on the House Judiciary Committee, the committee that spent months investigating the politicization of justice for which Griffin was the most obvious symbol.

Well, we had the equally corrupt Hans Von Spakovsky at the FEC (not to mention as head of DOJ’s Civil Rights Division), so I guess we’ll survive Tim Griffin’s “oversight” of the Judiciary Department. But if you were in any doubt about Republican’s goals to continue to politicize justice in this country, Griffin’s selection for HJC should answer that question.

Steven Bradbury Didn’t Disclose His Appendix M Opinion to Congress

As I posted a week ago, in April 2006 Steven Bradbury wrote one of the most egregious of all the egregious torture memos, one approving the new Army Field Manual, including its Appendix M laying out more intense interrogation methods. While the legal analysis of the memo was, itself, fairly nondescript, the analysis in the memo was written to the file rather than to the client, DOD. This separated Bradbury’s actual approval of the new document for DOD from any analysis or caveats. Approving the memo in such a way allowed DOD to change the content of Appendix M (which they did do), while still maintaining a letter saying whatever was in Appendix M had been approved by OLC.

Which is why I find it so interesting that, in response to a direct Question for the Record from John Conyers in 2008, Bradbury didn’t reveal the memo.

(D) Please identify any other legal opinions or memoranda you have authored or assisted in drafting regarding the interrogation of detainees by U.S. personnel or contractors.

ANSWER: In addition to the three opinions issued by OLC in May 2005, I assisted in preparing the public December 30, 2004 opinion interpreting the federal anti-torture statute. In addition, I authored two opinions related to the CIA program in 2006 and one in 2007. The latter opinion was provided in conjunction with the President’s issuance of Executive Order 13440 setting forth the legal requirements for the CIA program in accordance with the Military Commissions Act of 2006. I also provided or participated in providing other legal advice relevant to the CIA program, either orally or by letter, from time to time in the period from 2004 to the present, and also presented testimony or briefings or participated in preparing letters on the subject to Committees of Congress and their Members and staffs. Finally, I assisted in drafting legal advice and testimony concerning Department of Defense interrogation policies during the tenure of Assistant Attorney General Jack Goldsmith in 2004.

Here’s what Bradbury admits to being involved with:

The only advice he admits being involved with for DOD is limited to the aborted effort to draft a replacement for the Yoo Memo in 2004. And he clearly limits that activity to 2004.

Which means that, when John Conyers asked Bradbury to list every opinion he had written on interrogation, Bradbury did not do so. He hid at least this memo.

I find that interesting not just because Bradbury provided an incomplete answer to Congress on the torture program. But since we still have no idea what authorization DOD used from 2004 until 2006, when Bradbury wrote this memo, Bradbury’s non-disclosure raises the question of what else Bradbury and the Bush Administration may have hidden about OLC approvals for DOD’s torture program.

HJC Calls Bull on SSCI’s Conclusions

The Democrats on HJC have been doing their homework while the Republicans have been fear-mongering. They’ve read the documents related to the illegal wiretapping program, held secret hearings with the telecom companies, and called bull on several of the conclusions formed by SSCI. Not surprisingly, this letter justifies the FISA alternative which will come up for a vote later this afternoon.

The letter reveals the timing of the hearings with the telecom companies–but does not reveal whether the Republicans deigned to attend.

In recent weeks, Judiciary Committee members have received classified briefings from intelligence and Justice Department officials on the Administration’s warrantless surveillance program; we have been provided access to the same classified documents on the program that were provided months ago to the Senate Intelligence and Judiciary Committees (and, more recently, to the House Permanent Select Committee on Intelligence); and the Committee has conducted lengthy and extensive classified hearings on February 28 and March 5 to hear testimony from telecom and Administration officials. A key focus of that effort was the issue of retroactive immunity for phone companies that participated in the warrantless surveillance program. [my emphasis]

The hearings appear to have taken place during that period when the Republicans had taken their toys and gone home–so it’s likely, by refusing to let their staffers participate, the Republicans avoided learning the details that the Democrats learned [Update: I’ve been informed the Republicans attended the hearings]. And note–they still seem to be focused on phone companies, not the email carriers who are the center of the new programs.

The letter also confirms what we’ve already known–not all carriers acted the same in response to Administration requests.

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