Posts

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 influenced 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?

#FlintWaterCrisis: I Don’t Think That Report Said What You Think It Said, Gov

Today’s House Oversight Committee hearing into the Flint Water Crisis was a joke. It was partisan — more so than the previous two hearings — because Republicans finally clued in that a Republican state governor’s crisis doesn’t make them look good if they don’t kick up a stink and draw fire away from their role in the mess.

And yes, Congress’ GOP members are directly responsible for what happened in Flint, because they are also responsible for neutering the Environmental Protection Agency. Congress is the one entity which failed to take any responsibility for what happened in Flint — and what happened in Flint had already happened in Washington DC. Congress ensured that the EPA would be subordinate to the states, relying on states to act with inadequate recourse to step in and intervene. See Primacy Enforcement Responsibility for Public Water Systems (pdf) and note the obligations the states have to ensure safe drinking water under these laws:

  • Safe Drinking Water Act, 1974, as amended in 1986 and 1996
  • Primacy Regulations 40 CFR Part 142, Subpart B, 1976, as amended in 1986
  • Revisions to Primacy Requirements (1998), 63 FR 23362 codified at 40 CFR Part 142

These are Congress’ purview; as part of the Executive Branch, the EPA does not make law. Only Congress does.

Equally annoying today is the tendency by the Republican representatives to go easy on Michigan’s Governor Snyder, who tried to make it sound like he was doing everything he could to fix Flint and be open and transparent. You know this is bull hockey if you’ve looked at batches of emails released to date.

You know it’s also nonsense if you look at documents produced by the Snyder administration, intended to assist the public with understanding what happened.

One example is a timeline of the Flint water crisis laid out in a two-page presentation, with bubbles containing descriptions of events. A bubble marking March 12, 2015, appears in the upper right of the first page, denoting the submission of a report by Veolia Water. The firm had been hired by Flint’s emergency manager as water quality consultant to review and evaluate the water treatment process and distribution system.

Veolia completed and submitted their report to the city on March 12, but the report does not actually say what the state’s timeline document says. Veolia wrote,

“Although a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations, Veolia, as an operator and manager of comparable utilities, recommends a variety of actions to address improvements in water quality and related aesthetics including: operational changes and improvements; changes in water treatment processes, procedures and chemical dosing; adjustments in how current technologies are being used; increased maintenance and capital program activities; increased training; and, an enhanced customer communications program.”

Veolia relied on what previous water quality records said; they did not actually conduct tests themselves, or audit how the previous records and reports were prepared.

But the timeline published by the governor’s office reads,

“Flint water consultant Veolia, issues report that water meets state and federal standards. Does not report specifically on lead.”

The second sentence is correct, the first a misrepresentation. That’s not what Veolia’s report said.

The second sentence may be factually correct, but the company was not hired by Flint’s emergency manager to evaluate lead levels specifically, based on the supporting documentation accompanying the resolution authorizing the contract with Veolia.

If one entry on the timeline prepared by the state is this iffy, what about the rest of the timeline?

If this timeline is this iffy, what about everything else generated by officials from the governor’s office on down?

Tuesday Morning: #FlintWaterCrisis Hearing Today

This is a semi-special morning roundup edition due to this morning’s Congressional hearing on #FlintWaterCrisis. Details:

Tuesday 15-MAR — 10:00 AM — Hearing on Flint, Michigan Water Contamination (est 3 hours, on C-SPAN3)
Former Flint, Michigan Mayor Dayne Walling, former Emergency Manager Darnell Earley, EPA Region 5 Administrator Susan Hedman, and Virginia Tech University’s Marc Edwards testify at a House Oversight Committee hearing on water contamination in Flint.  Link to House Oversight Committee calendar entry

If you don’t catch today’s hearing, there will be another on Thursday morning:

Thursday 17-MAR — 9:00 AM — Gov. Snyder (R-MI) & EPA Head McCarthy: House Hearing on Flint, MI Water Crisis (est 3 hours, on C-SPAN3)   Link to House Oversight Committee calendar entry

You can find my timeline on Flint’s water here — it still needs a number of new entries.* Of particular note today will be the first half of 2014 when the decision to cut over from Detroit’s water (DWSD) to the Flint River was finalized and enacted, under then-Emergency Manager Darnell Earley. Earley was the third EM appointed to Flint after December 2011; he had been preceded by Michael Brown (twice) and Ed Kurtz (once).

You’ll recall that Michigan implemented an emergency manager law in 2011, allowing the state to appoint an administrator for insolvent municipalities. The EM law eliminated the powers of democratically elected municipal officials, vesting those powers and more in the appointee.

Reports this morning based on initial assessments of Darnell Earley’s written statement for the hearing today indicate Earley was overwhelmed by the demands of the EM role in Flint, and he regrets not having pushed back more firmly on decisions about the water cut-over.

However, the timeline reveals that in early 2013 a previous EM Ed Kurtz actually signed the decision to buy water from the Karegnondi Water Authority (KWA) when it completed construction. Kurtz also notified the DWSD that Flint would leave in one year’s time, in spite of a last-minute emailed offer on April 15, 2013 from DWSD offering a rate far cheaper than the rate Flint was paying in 2013, and possibly cheaper altogether than the KWA rate.

Did EM Ed Kurtz see this email? If he did, why was it ignored? If he didn’t, why not?

Ditto for Darnell Earley — did he know there was an offer from DWSD making the KWA potentially irrelevant or redundant?

Why wasn’t Flint able to accept the DWSD’s cheaper rate from 2013 through to cut-over to the KWA upon the pipeline’s completion as a stop-gap, avoiding the debacle cutting over to the Flint River created?

Why was there so much pressure on development and implementation of the KWA, to the point that cheaper water from DWSD was ignored?

Michigan blogger Mark Maynard asked whether the KWA was really established to serve fracking wells in counties through which the pipeline ran from Lake Huron to Flint (see here and here). I would love to know if anybody has FOIA’d documents from the state, Flint, and the KWA regarding containing any of the search terms [fracking, hydraulic fracturing, wells, oil, natural gas, injection, energy].

We already know the state wasn’t paying much attention (ahem) to fracking in northern Michigan; did they turn a blind eye to both bid rigging up north, and the development of water resources in eastern Michigan?

Get your popcorn maker out and ready for 10:00 a.m. EST. You know what I’ll be doing — join me.

UPDATE — 8:25 a.m. EST —
I do have one more question I’d ask Darnell Earley about early 2014. Knowing the city’s water would be cut over from DWSD to KWA in April, were there any tests conducted prior to the date DWSD was cut off as a source? In other words, did Flint River water enter the Flint water system anytime BEFORE the end of the contract with DWSD? Or was the city simply supposed to assume the cut over would work without fail?

I’d like to see when Genesee County Health Department first noticed changes in health services required, along with any anonymized health service data from hospitals serving Flint residents. Would the health data show illness in sync with the official cut-over to river water — or earlier?

UPDATE — 2:20 p.m. EST —
Drive-by impressions after hearing:

  • Didn’t get answers to my questions. Also, Earley should have been asked whether Snyder, as his boss, 1) asked him to limit contact with public for feedback, or 2) if it was clear going into EM role that public feedback should be limited, and 3) if it had been made clear by governor to Earley that financial concerns overrode all others in performance of EM duties.
  • Susan Hedman’s testimony helter-skelter, did not improve impression of her ability as a regulator. She’s still on the hot seat. Email cited in hearing from EPA’s Region 5 Water Division Branch Chief Debbie Baltazar which said, “I’m not so sure Flint is the community we want to go out on a limb for” did not help Hedman’s case whatsoever.
  • Do not recall any mention of Legionnaire’s cases during questioning, though contamination was mentioned. Not good — lot of important focus on lead poisoning, but to forget about deaths due to this crisis?
  • C-SPAN cameras caught Dr. Marc Edwards giving interviews after hearing ended; he told interviewers Flint’s water was safe for bathing (non-consumption hygiene purposes), but could not say when Flint’s water was safe to drink because of testing still underway across Flint.

Ugh. Thursday’s hearing will be must-see TV.
__________
* Sorry, harpie, I still have to follow up with the additional links you’ve shared recently.

BREAKING! Romney Surrogate Points to Effects of Republican Budget Cutting as Factor in Benghazi Attack!!

Eli Lake continues to serve as the mouthpiece for a political attack explicitly crafted by close Rove associates. In today’s installment, he repeats Mitt Romney campaign surrogate, UT Congressman Jason Chaffetz’ latest attack: that the State Department cut security after the hot war in Libya ended.

In the six months leading up to the assault on the United States consulate in Benghazi, the State Department reduced the number of trained Americans guarding U.S. facilities in Libya, according to a leading House Republican investigating the Sept. 11 anniversary attacks. The reduction in U.S. security personnel increased America’s reliance on local Libyan guards for the protection of its diplomats.

[snip]

Chaffetz went further Wednesday, saying in an interview that the number of American diplomatic security officers serving in Libya had been reduced in the six months prior to the attacks. “The fully trained Americans who can deal with a volatile situation were reduced in the six months leading up to the attacks,” he said. “When you combine that with the lack of commitment to fortifying the physical facilities, you see a pattern.”

I suppose it would be too much for Lake to acknowledge that Chaffetz is a Romney surrogate and note the repeated admissions that Romney’s team intends to turn the Benghazi attack into Obama’s Jimmy Carter. Doing so might reveal that this outrage is, to some extent, manufactured.

With the help of Eli Lake.

Perhaps he could at least read this article.

Not only does it support the argument that Mike Rogers, the House Intelligence Chair, should be the one to conduct Congress’ investigation, not a Romney surrogate on a committee without the clearances to do so.

Rep. Michael Rogers, chairman of the House Intelligence Committee, made clear Wednesday that congressional staff will be looking into the attack, in addition to a probe by the State Department’s inspector general and another State Department investigation required by federal law.

But it explains why the surrogate for a candidate running with the House Budget Chair really shouldn’t be squawking about the State Department cutting security after a hot war ends.

Since 2010, Congress cut $296 million from the State Department’s spending request for embassy security and construction, with additional cuts in other State Department security accounts, according to an analysis by a former appropriations committee staffer.

Read more

Darrell Issa Needs a New Baby-Sitter

If the Democratic Party wants to survive the next two years, it needs to find a new baby-sitter for Darrell Issa.

After all, no one was more gleefully prepared after the shellacking last Tuesday to take over and cause trouble for Democrats that Issa. He’s been planning a series of witch hunts for months. And since Tuesday, Issa has made it clear just how expansive he intends those witch hunts to be.

California Rep. Darrell Issa is already eyeing a massive expansion of oversight for next year, including hundreds of hearings; creating new subcommittees; and launching fresh investigations into the bank bailout, the stimulus and, potentially, health care reform.

Issa told POLITICO in an interview that he wants each of his seven subcommittees to hold “one or two hearings each week.”

“I want seven hearings a week, times 40 weeks,” Issa said.

Issa is also targeting some ambitious up-and-comers like Reps. Jason Chaffetz of Utah, Patrick McHenry of North Carolina and Jim Jordan of Ohio — all aggressive partisans — to chair some of his subcommittees.

[snip]

To give an idea of how expansive Issa’s oversight plans are, look at the record of Rep. Henry Waxman (D-Calif.) when he chaired the oversight committee during in the 110th Congress during George W. Bush’s presidency. Waxman held 203 oversight hearings in two years; Issa has signaled he’s prepared to hold about 280 in just one year.

The current Chair of Oversight, Ed Towns, is not up to the task of keeping Issa in check.

As I noted two years ago, Towns was never all that interested in Oversight; to him it was a gavel and nothing more. Plus, he’s funded by some of the industries–like Pharma–that need some oversight.

More importantly, the last two years have proven him unequal to the task of keeping Issa in line. Indeed, Issa has pushed Towns around to do things like focus on the Countrywide VIP program, even while Towns failed to do much positive with his gavel. Keeping Towns on as Ranking Member of Oversight will deprive us of any way of limiting the damage of Issa’s witch hunts.

We need someone with both the intestinal fortitude and the progressive stripes to encourage Issa where we could use more Oversight–such as on the Wall Street bailout, which Issa promises to investigate–while obstructing Issa’s efforts to shut down government or sniff through Obama’s panty drawer, as Issa’s predecessor, Dan Burton, did to Clinton.

We need someone like Elijah Cummings, who considered a run for Oversight Chair two years ago, and who has been one of the few people on Oversight demanding the Committee do what it is supposed to do. Cummings has been very good at using his spot on the Committee to expose the cronyism of government (particularly on the Wall Street bailout). And of critical importance, he speaks well enough to match a showboater like Issa. He has the ability to expose Issa’s more partisan stunts as such. Finally, replacing Towns with Cummings will limit the complaints of the CBC (particularly in case Clyburn loses to Steny in the Whip fight).

The focus since Tuesday has been on the leadership fight between Steny and others. But just as important as picking the right leader to keep the caucus as effective as possible in the minority, we need to pick a better baby-sitter for Issa–someone like Elijah Cummings.