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History’s Rhyme, Part 5: Bad Faith, Unauthorized Acts and Crimes Against Humanity

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

It’s time to revisit the ongoing comparison of Nixon’s Articles of Impeachment with possible Articles against Donald Trump. Previous posts in this series:

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

History’s Rhyme, Part 4: Contempt Then, Contempt Now — focus on comparing charges of Contempt of Congress between Nixon and Trump.

An expansion of Part 2 into 2b addressing more abuses of power is planned in the near future. Trump continues to rack them up.

As noted in previous posts in this series, the House Judiciary Committee prepared five Articles of Impeachment against Richard M. Nixon during the course of its impeachment inquiry. Only three of the five were passed out of committee and approved by Congress. We all know Nixon resigned before the House could vote on the three approved articles.

The fourth article which was not approved pertained to Nixon’s Operation Menu — the covert bombing of Cambodia. Congress, which has the sole power to declare war, had not expressly approved this in its 1964 Gulf of Tonkin resolution. The bombings went unreported for four years and contributed to the destabilization of Cambodia.

A fundamental problem with this Article was that Congress bore some of the blame for the bombing; the Gulf of Tonkin resolution was written in such a way that it didn’t expressly preclude bombing of neighboring nations along the border with Vietnam. The resolution also did not constitute a declaration of war against North Vietnam, authorizing instead the use of military force to meet its obligations under the Southeast Asia Collective Defense Treaty. The legality of the military action in Vietnam was on thin ground, making action on any neighboring country even more questionable.

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It’s not impossible this very same challenges will form the basis for another Article of Impeachment against Trump should he pursue military action against Iran without adequate approval from Congress.

But we already have seen Trump take action without Congressional approval and without the support of existing legislation behind him, beginning with his first week in office. His Executive Order 13769 to begin a Muslim travel ban was illegal; he persisted in pushing a ban focusing on Muslims with subsequent Executive Order 13780 and Presidential Proclamation 9645 until his Departments of Justice and Homeland Security arrived at restrictions which met the letter of existing law according to a now-stacked and partisan Supreme Court after several lawsuits. This is not a faithful execution of the law — 8 U.S. Code § 1158.Asylum — it’s whack-a-mole with innocent humans as collateral damage for no constructive reason or benefit to this country.

The sole benefit of the persecution of asylum seekers has been to curry favor with Trump’s voting base with campaign promises to stop them — and that’s corrupt.

When acting Attorney General Sally Yates announced the Department of Justice would not enforce the Muslim travel ban three days after Trump signed Executive Order 13769, she explained that the ban was not lawful. Trump rejected this opinion and fired her instead of relying on her expert opinion. He had to be told repeatedly by federal judges his executive order was not enforceable because it was unlawful.

People were detained unlawfully. People were unable to travel freely. The primary reason for their restriction was their religious identity — a violation of the First Amendment and its protections of religious freedom. It was a fundamental human rights violation under the Universal Declaration of Human Rights to which the U.S. is a signatory.

Trump’s introduction of a “zero tolerance” policy implemented during the first months of his term in office has also denied freedom of movement to persons seeking asylum at the border. The policy’s implementation resulted in systematic crimes against humanity including enslavement; deportation; imprisonment; torture; sexual assault including rape; persecutions on political, racial and religious grounds; other inhumane acts.

None of this was authorized by Congress; none of this is in 8 U.S. Code § 1158. These acts also violate numerous U.S. laws as well as treaties. While there is not currently a treaty on crimes against humanity, Trump’s bad faith execution of U.S. law and existing treaties like the Convention Relating to the Status of Refugees and the U.N. Convention Against Torture spell out many of these crimes.

Again, Congress did not authorize acts like:

— separating children from parents or guardians;

— holding children in cages;

— trafficking separated children into unauthorized adoptions without parental or guardian consent;

— deportation of minors without parent or guardian;

— failure to track minors so they can be reunited with parents and/or guardians;

— failing to provide reasonable care including adequate food and water, bedding, hygiene, heat and cooling, health care;

— transporting detained persons without notification to parents, guardians, family members;

— refoulement – deporting asylum seekers back to the place they fled;

— forced labor.

Nothing in U.S. law or treaties to which the U.S. has been a party or signatory authorizes this kind of treatment.

Further, Trump’s bad faith execution exacerbates a long-term problem with Immigration and Customs Enforcement (ICE) — too many U.S. citizens have been denied their rights, stopped, interrogated, detained, and treated like aliens simply because they were not white.

Trump also systematically defies a court order issued in June 2018 prohibiting further separations of minors from their families at the border and instructing the Department of Homeland security to return minors to their families. The Trump administration weaseled around the court order, detaining entire families at military facilities — new concentration camps — while DHS continued to separate families on an irregular basis.

We’ve seen evidence of this systematic lawlessness based on inspections by Congressional tours of detention facilities — concentration camps in which asylum seeking minors were denied reasonable “safe and sanitary” conditions.

The number of illnesses and deaths attributable to Trump’s “zero tolerance” policy may never be fully known because the administration has done so much to avoid monitoring and oversight.

~ ~ ~

Other deaths which can be wholly attributed to Trump’s bad faith in executing his office are those of 2,975 Americans who lived in Puerto Rico (pdf) when Hurricane Maria hit the island in 2017.

He had to be shamed into dispatching a U.S. Navy hospital ship to provide emergency health care even though the vessel had been waiting well in advance of the hurricane’s strike. It took nearly six weeks after it was dispatched for the vessel to berth and begin delivering care, though the Navy knew in advance of the hurricane that Puerto Rico might need medical support.

The manner in which the emergency aid was provided to the island was grossly negligent when not outright malignant — like the bottles of water left to sit on a tarmac for a year after the storm, or the recall of the hospital vessel U.S.S. Comfort long before its services were no longer needed, or the lack of effort on the White House’s part to work with Congress to assure aid money would be allocated and distributed in a timely basis.

Puerto Ricans were denied their right to equal protection under the law; they were not accorded the same access to federal aid as mainland citizens, in contrast to the assistance received by other Americans after Hurricane Harvey, Irma, and Michael in 2017-2018.

And none of this had the imprimatur of Congress.

~ ~ ~

Unlike Nixon’s Operation Menu which only lasted 14 months, Trump’s derogation of Congress’s authority through his bad faith execution of laws is now into its 33 month. His malign acts increase in depth and breadth, now including the wretched refusal of Bahamians fleeing their hurricane devastated country, continued separation of families including Bahamian children.

And now an even more evil effort has begun: Trump wants to round up homeless people regardless of their citizenship and house them in unused Federal Aviation Administration facilities (read: place them in concentration camps).

There are homeless who work in Silicon Valley, homeless only because there isn’t affordable housing. Will he stop at them? Is he doing this to line his pockets in some way or as a campaign promise not shared with the public?

How has his effort combined with that of his cabinet secretary Ben Carson done anything to improve access to affordable housing when they are undermining civil rights protections for marginalized groups?

None of this effort targeting California’s homeless has been adequately debated by Congress let alone codified by law.

Will Congress do nothing at all to stop this creeping and inhuman fascism, these sustained attacks on human rights of citizens and non-citizens alike?

The 93rd Congress may not have passed the fourth Article of Impeachment against Nixon, but at least they understood and grasped the executive could and must be removed with the three articles they passed. It’d be nice if the 116th Congress was less supine.

History’s Rhyme, Part 2a: ‘Abuse of Power’ Sounds So Familiar

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

In a previous post I looked at the first of three Articles of Impeachment passed by Congress in 1974 against then-president Richard Nixon and suggested a parallel between Trump’s presidential acts and Nixon’s.

There had been five articles drafted; only the first three were approved by the 93rd Congress. Of them one article focused on Abuse of Power — acts which may be malfeasance and/or unlawful, as well as acts which may not have been strictly unlawful/illegal but were unethical and a breach of the trust the public places in the executive and a violation of the executive’s oath of office to take care the laws are faithfully executed.

You can read the second article at this link; now compare it to a theoretical article of impeachment which could be drafted against Trump today.

Article 2: Abuse of Power

Using the powers of the office of President of the United States, Donald J. Trump, in violation of his constitutional 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 disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impeding the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies.

This conduct has included one or more of the following:

1. He has violated the Emoluments Clause of the Constitution which provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Donald J. Trump, has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments. He has refused to divest himself of those interests and inherent conflicts of interest. He has accepted “Emolument[s]” from “foreign State[s]” while holding the office of President of the United States. He has accepted numerous benefits from foreign states without first seeking or obtaining congressional approval as specified by the Emoluments Clause, and further maintains that no Congressional approval is required. He has rejected Congress’s Article I authority by refusing to seek its consent.

2. He misused the Secret Service by interfering in their ability to perform their duties with regard to protecting the presidency, refusing them necessary access to public and private facilities where foreign nationals visit frequently. He has interfered with the Secret Service’s ability to operate, draining their budget by deploying them excessively at his private business facilities when not executing his presidential duties.

3. He has, acting personally and or through his subordinates and agents, in violation or disregard of the Presidential Records Act of 1978 (PRA), concealed or destroyed presidential records, or prevented presidential records from being made appropriate to the execution of his office. He has terminated the practice of publishing public summaries of presidential phone calls with world leaders thereby evading creation of presidential records. He has ignored warnings of the National Archives to comply with the PRA.

4. He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens and the human rights of visiting foreign nationals, unilaterally drafted, issued without adequate prior legal review, and permitted to be maintained Executive Orders 13769 and 13780, violating the First Amendment’s Establishment Clause, the Fifth Amendment’s Equal Protection, Substantive Due Process, and Procedural Due Process clauses, the Immigration and Nationality Act, the Religious Freedom Restoration Act, and violating in both substance and procedure the Administrative Procedure Act in the process of discriminating against persons both citizens and foreign nationals on the basis of religion and national origin by illegal detention and refusal of their admittance to this country.

5. In disregard of the rule of law: he knowingly misused the executive power by interfering with agencies of the executive branch, including the Department of Justice and the Department of Homeland Security, in violation of his duty to take care that the laws by faithfully executed. He rejected the expert advice of then Deputy Attorney General as to the unlawfulness of his Executive Order 13769. He has authorized Department of Homeland Security personnel to commit illegal acts against asylum seekers and refugees. He interfered with the Department of Justice in its investigation into interference with the 2016 election by repeated disparagement.

6. He has retaliated against federal employees, including but not limited to the Attorney General, the Deputy Attorney General, the Director of the Federal Bureau of Investigation, the Director of Secret Service, and National Archives personnel, disparaging, harassing, and or firing them without adequate legal cause for conducting their lawful duties. He has ordered other federal personnel to disparage and fire federal personnel without adequate legal cause for conducting their lawful duties. He has maliciously attempted to interfere with federal employees’ ability to draw their rightful benefits.

7. He misused the Department of Justice, in violation or disregard of the constitutional rights of citizens, by tacitly directing or implicitly authorizing the Attorney General to conduct or continue investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office. He has expressed repeatedly his intent to use the Department of Justice and U.S. intelligence agencies for the purposes of punishing political opponents. He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to investigate political opponents.

8. He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of press under the First Amendment and of citizens under the Fifth Amendment, authorized and permitted the indefinite revocation of White House press credentials for arbitrary and non-compelling reasons, including punishment for and suppression of perceived criticism. He has frequently undermined the First Amendment rights of the press by calling them “the enemy of the people.

9. He has, acting personally and through his subordinates and agents, in violation or disregard of the Federal Advisory Committee Act (FACA), allowed the Presidential Advisory Commission on Election Integrity (PACEI) to meet without public notice; without making PACEI meetings open to the public; and without timely notice in the Federal Register. He has failed to ensure PACEI operated so that any of its “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the PACEI were “available for public inspection.” He has further failed to ensure that the PACEI was fairly balanced and free of inappropriate influence as required under the FACA to ensure public accountability.  Based on spurious claims of voter fraud and without adequate data security in place, he has ordered the PACEI to obtain private voter data from the fifty states for the purposes of a voter roll purge using questionable and opaque methods.

[ — TO BE CONTINUED — ]

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.

Article 2 against Nixon only contained five subjects. How quaint; it’s like Tricky Dick wasn’t even trying.

In contrast Trump might have racked up a new subject every other month in office to add to this list. I have at least six more subjects to add in a followup post.

After I finish the Abuses of Power I plan to look at Article 3: Contempt of Congress — which is very nearly writing itself — and an Article 4: Violation of Treaties including those covering refugees and international human rights. There could be an Article 5 covering action in Yemen and other foreign policy and military failures.

I still don’t know if this shouldn’t include his ridiculously expensive golf. Assuming he’s not removed by the time his term is up in early January 2021, and assuming he continues his current rate of play, Trump will have burned through nearly $200,000,000 taxpayer dollars, a considerable chunk of which will go into his pocket for golf cart fees alone. What a parasite; imagine how many teachers could have received pay increases with that, or how many Pell Grant scholarships that could have funded.

Or how much of his ‘fucken wall‘ that could have bought.

This is an open thread. Be sure to let me know what other topics you think should be added under this Article 2: Abuse of Power.