Bloomberg Link to Prison Labor

News accounts of the use of prisoners to make campaign calls, and the Bloomberg campaign's negative reaction (12//25, A-16), have done a disservice to updated attitudes about penal reform and rehabilitation. Instead of treating the news that incarcerated persons have been given an opportunity to gain new skills, earn money and participate in the democratic process, an accomplishment which rightfully should be celebrated, the disclosure has been treated as a minor scandal.

Bloomberg's response, to fire the contractors and promise stricter vetting to prevent recurrence, only compounds the distortion of what should have been an uplifting story

Trial of Impeachment

To resolve the standoff in the senate, on the appropriate process for the impeachment trial of President Trump, and particularly, whether both sides should be able to subpoena and examine witnesses with first hand knowledge of relevant events, I propose the following.

Democrats and Republicans should agree to make application to and be bound by the rulings of Chief Justice John Roberts. Presumably Justice Roberts, who has the trust of Republicans, will bring to bear his judicial insights on the need to hear from fact witnesses and the relevancy of offered testimony, a role traditionally delegated to judges. Hopefully, Justice Roberts, in making his rulings, will be guided by his legal expertise and concern for the historical legacy of the court he leads.

Supreme Court to Rule on Release of Trump's Financial Records

The Supreme Court's announcement, that it has accepted for appeal three cases in which the lower courts ruled that Donald Trump's accountants and bankers must produce certain of his tax returns and other financial records, is an ominous development. If, as many legal analysts had predicted, the right of Congress (and a local prosecutor) to obtain these records was a "slam dunk", the Supreme Court simply would have denied certiorari effectively sanctioning the lower courts' rulings.

Given the makeup of the Court, I suspect there is an appetite to step in to protect Mr. Trump. What is likely to happen is a 5 to 4 split with the outcome dependent upon whether Chief Justice Roberts' concern for the verdict of history and the public's perception of the Court as an impartial arbiter outweighs his demonstrated tendency to uphold conservative, Republican interests.

The members of the Court who will favor Mr. Trump will first proclaim that they are not imposing a broad prohibition shielding a president from all investigation. Then, they will attempt to justify their position by arguing that the subpoenas were politically motivated and part of an unjustified campaign of harassment; that Congress has not adequately identified a legitimate legislative purpose; that the articles of impeachment do not broaden Congress' investigative authority because they do not relate to the president's alleged financial misconduct and that a local prosecutor may not investigate a sitting president.

All of these arguments are specious and would not pass  the red-face test, let alone unbiased constitutional analysis. One can only hope that the better angels of CJ Roberts' judicial persona overcome his conservative mindset and save the Constitution.

Barr Attacks FBI

Attorney-General William Barr's shamelessness knows no bounds. The country's supposedly independent chief law enforcement officer has shed any pretext that he is anything other than consigliere to President Donald Trump. Beginning with his misrepresentation and virtual suppression of the Mueller Report  and injudicious absolution of Mr. Trump's criminal obstruction of that investigation, the list of Mr. Barr's partisan pandering has grown exponentially. 

Among other things, the Attorney-General has echoed the "witch hunt" catechism, accused his own FBI of spying, disputed the findings of his agency's Inspector-General, initiated a redundant probe of the Russian interference investigators, promoted an imperial presidency and blamed secularists for the country's moral decline. 

Mr. Barr's distortion of the duties of his office will irreparably damage the independence of the Department of Justice and destroy the morale of its many dedicated professionals.

Voices Against Criminal Justice Reform

Allow me to second the editorial stance of the NYTimes (November 18), calling for implementation of criminal justice reform in NY and chastising the naysayers.
As long ago as 1961, the Vera Foundation’s Manhattan Bail Project, in which I participated as a law student, demonstrated that accused individuals released without bail were more likely to return to court and less likely to commit new crimes than those released on bail.
As a Criminal Court judge, I made broad use of release without bail as the more just alternative to unnecessary and often lengthy incarceration of persons accused but not convicted of crimes. My experience mirrored the findings of the Vera Foundation; released individuals returned for their court dates with greater reliability than those released on bail.

Far Right Frenzy

As the evidence of Donald Trump’s corruption, abuse of power and obstruction mounts, yet another of his former lieutenants joins the ranks of convicted felons (making six at last count) and more public officials courageously come forward to bear witness, the far right has grown frantic exploding in paroxysms of vitriol, falsehood and incitement.
Sean Hannity of Fox now rages nightly, engaging in name calling and vilification of Democrats, nonpartisan public servants, congressional witnesses, the media mob, Deep Staters, Never Trumpers, Joe Biden, Hillary Clinton and President Obama. Hannity so often repeats his  Big Lies they have been transformed into a litany tinged with religious fervor as he exhorts his viewers to exhibit anger and disgust.
Now, he has sent letters to every Republican senator demanding that these potential impeachment “jurors “ respond to questions calculated to elicit a pretrial pronouncement of their verdict. More troubling, a number of these senators, including Majority Leader McConnell, promptly responded giving the sought assurances.

The Disorienting Defense of Mr. Trump

Focus for a moment on the defense that Mr. Trump cannot receive a fair hearing unless the whistle-blower is identified and compelled to testify. Suppose an anonymous person calls 911 to report a crime in progress. The police respond and catch a wrongdoer in the act and arrest him. Applying Republican logic, the charge must be dismissed and the criminal released unless the police can, somehow, find the caller and make him available as a witness for the defense so he can be questioned  about whether he made up the story because he disliked the defendant. Mr. Trump's other "defenses" are equally plausible.

Fox News Coverage of Trump Political Rallies

Tonight, after a day of multiple major news stories, all of them bad for Donald Trump and the Republicans, Sean Hannity devoted virtually all of his hour-long Fox program to televising a Trump political rally in Louisiana. Hannity had zero coverage of Republican election losses, just released transcripts of impeachment witnesses, the Sondland flip flop, adverse court rulings, Barr's refusal to declare Trump innocent, and the opening statement of the prosecutor in the Roger Stone perjury trial. And that is only a partial list of blockbuster news that Hannity missed or chose to ignore.

This same scenario has been repeated several times in recent weeks; Hannity opting to have his program pre-empted by Trump political rallies featuring long, rambling, profane diatribes by the President, promoting local candidates and highlighting his own worthiness for re-election and by short pitches from the local politicos.

Since this coverage is patently political, not to be confused with time set aside by networks for important pronouncements by presidents on topics of national concern, my question: is this not an in kind contribution by the Fox Network to the Trump campaign; has it been reported as such and is it permissible under FCC regulations and campaign finance laws?

Change of Republican Tactics Makes No Sense

With the evidence conclusively proving that Donald Trump demanded political dirt in exchange for continued aid to the Ukraine (the oft-cited "quid pro quo"), and the process of the investigation having been made more formal and transparent,  Republicans have pivoted to a new defense made up of two components. First, claim that Mr. Trump's misconduct does not amount to an impeachable offense. Second, attack the character and credibility of the whistle-blower and of the witnesses whose testimony  described Mr.Trump's wrongdoing.

The first argument is absurd on its face. If demanding political assistance from a foreign state as a condition of continued military assistance is not a corrupt abuse of power constituting an impeachable offense then no misconduct can ever warrant impeachment. 

Neither Mr. Trump nor any of his defenders have cited any misstatement of fact by the whistle-blower or any of the witnesses who testified before the House Intelligence Committee. Indeed, the transcript of the telephone call released by the President corroborates their statements. Thus, the identity of the whistle-blower, his motivation and credibility is utterly irrelevant. Similarly, the uncontradicted testimony of the witnesses cannot be undone by besmirching their character or discounting their estimable record of non-partisan public service. It is time for Republican officials to put the nation's welfare ahead of their personal interests.

Trump's Story of Terrorist's Death

Some make light of President Trump's fabricated account of the killing of al-Baghdadi, branding disbelievers nitpickers who are unwilling to give Mr. Trump his due. They excuse the president's continual and documented departure from fact as simply Trump being Trump.

The fact that a majority of Americans mistrust the president's credibility is a serious threat to the functioning of a democracy, where power is ceded by the many to a few. From his patently false denials of misconduct to his misdescription of storm tracks, Mr. Trump has demonstrated an inability to separate fact from fiction.  That should be a disqualifying character trait for any leader, let alone the President of the United States.

Republican Attacks on the Character of Witnesses

Nearly every day a patriotic American courageously exposes presidential corruption by testifying in Congress about Donald Trump's shakedown of the Ukrainian president to extort political assistance. As each of these truthtellers comes forward, the media recounts his or her impeccable background and commitment to non-partisan national  service. 

Surely, talking heads conjecture, the character and honesty of these sterling witnesses dare not be impugned. After all, they include career diplomats and high ranking officials who have served under both political parties, a wounded and decorated military officer and even an ultraconservative appointed by Mr. Trump. Nonetheless, the stellar reputations of these witnesses has not insulated them from attacks by the Republican hierarchy and the far right media.

Their dedicated service and sacrifice have not deterred assaults on their bona fides or integrity. They have been excoriated as faceless, Deep State bureaucrats, disloyal immigrants who may be engaged in espionage and deranged Trump haters. This baseless and self-interested disparagement of  conscientious citizens is almost as despicable and damaging to our democracy as the misconduct  it is intended to disguise. 

Sean Hannity's Alternative Universe

The alternative universe inhabited by Fox anchor Sean Hannity grows weirder each evening. A parade of patriotic public servants have testified before Congress, nailing down with precise and corroborated testimony the abuse of power, corruption and inexplicable obeisance to Putin of President Donald Trump, Hannity basically ignores these facts except to cast an occasional stone at some of the witnesses.. Instead, he breathlessly alerts his audience to the unfolding scandal of the “non-whistle blower” who is about to be outed as another Deep State conspirator with undisclosed ties to the “cowardly, congenital liar “, Rep. Adam Schiff. According to Hannity, Mr. Schiff is conducting a Soviet style inquisition to take down the President.

More disturbing, Mr. Hannity’s fellow travelers in this fantasy world include congressional leaders Kevin McCarthy and Steve Scaliese and the nation’s chief law enforcement officer, Attorney General William Barr.

This latest scandal will take its place in Hannity’s pantheon of earth shattering transgressions, which include Barack Obama’s cavorting with terrorists, the Benghazi debacle, the Steele Dossier, Hillary Clinton’s emails and the infiltration of the FBI and the CIA by radicals like Robert Mueller, James Comey and John Brennan. Hannity warns, with increasing crescendo, that America, as we know it, will be no more unless “you, we the People” take action against the Trump-hating, out of control radical Left and its allies in the “Fake News, lying media. Lewis Carrol has been outdone . We are living in a modern Wonderland.

Senator Lindsey Graham's Shifting Standards

Senator Lindsey Graham is a chameleon; he changes colors and postures from day to day, administration to administration.

Senator Graham declared recently that if President Donald Trump conditioned financial aid to the Ukraine upon receipt of assistance to his campaign, that would be grounds for impeachment. Now that the evidence establishes a “quid pro quo”, Sen. Graham no longer finds that exchange offensive.

When Bill Clinton was president Sen. Graham considered abuse of power an impeachable offense. Now that Donald Trump is the abuser Sen. Graham no longer finds it a sufficient ground for impeachment. When Special Counsel Kenneth Starr privately interviewed witnesses during his investigation of Mr. Clinton, Sen. Graham  was not troubled. When a congressional committee now proceeds in the same manner, in its inquiry concerning Donald Trump, Sen. Graham is outraged and has moved to condemn the process as unconstitutional and a violation of Due Process.

Senator Graham is either a man of many minds or a pliable tool of the president. Neither condition befits a United States senator.

House Republicans Invade a Deposition

As the evidence of President Trump's abuse of power and corruption mounts and his shifting defenses have fallen to the wayside, House Republicans have resorted to specious claims of unconstitutionality and lack of due process in the conduct of the impeachment investigation. Never mind that such investigations, like grand jury proceedings and the practice of past special counsels, must be and have been conducted in private until charges are recommended. Or that, notwithstanding their claims to the contrary, Republican representatives and their staff are present at the depositions of witnesses and have a full opportunity to cross-examine. 

The president and his congressional accessories falsely assert that the impeachment will occur in secret and will amount to a "Soviet style" coupe, though they know full well that the investigation will lead to open hearings and a vote in the House to be followed by a full public trial in the Senate where the President's lawyers will be free to present his defense with all of the protections afforded an accused.

Their deceit having failed, House Republicans, with the encouragement of the president and egged on by the far right media, have now adopted the tactics of the mob, invading the hearing room, disrupting proceedings, intimidating witnesses and violating House rules prohibiting cameras, phones and recording devices in secure facilities. If this dangerous and undemocratic turn to violence is not called out immediately by responsible Republicans, and reacted against by an outraged citizenry, the foundation of our democracy will be seriously at risk.

Replacing Rikers

The importance of closing Rikers Island cannot be overstated, both because of its practical consequences and its symbolic message. As a former Chair of the New York City Board of Correction and a retired Criminal Court Judge, I believe I have a fairly unique perspective on how that jail complex impacted lives and communities and how its closing will usher in a new and humane response by the criminal justice system to addressing crime, punishment and rehabilitation.
Unquestionably, incarceration on Rikers is an horrific experience, especially for inmates awaiting trial ( a majority), who are held because of their inability to post bail. Violence committed by inmates and correction officers alike is a daily occurrence. Inhospitable living conditions, lack of proper medical and psychiatric care and, most debilitating, solitary confinement, have resulted in suicides, homicides and emotional dysfunction. While there has been some remediation, such as curtailing isolation, conditions on the island are little improved and remain grossly unacceptable.
Even for those who have been convicted and are serving short sentences, the ever present specter of violence and the substandard living conditions impose an unduly punitive and threatening existence. The inadequacy of educational opportunity, job training and medical and  psychiatric care for this cohort make more problematic their release to society and increase the likelihood of repeated offenses.
The jails to be built as a replacement for Rikers will have the virtues of housing fewer inmates, having modern and more humane facilities and of being located in neighborhoods convenient for family visitation and in close proximity to the courts where the cases are heard. The long delays inherent in transporting defendants to distant courthouses, a major vexation for judges and jurors, will be obviated.
Some argue that the projected decrease in prison population is overly optimistic and that the capacity of the proposed new jails will be inadequate to house all those detained. That fear will prove illusory given the recently enacted measures to end cash bail and to decriminalize minor offenses. Further, as a former judge and current judicial hearing officer, I am hopeful that more judges will have the wisdom and courage to recognize that most accused non-violent offenders can be released pending trial without risk of flight or threat to safety. The combination of these factors undoubtedly will reduce the prison population to an even more humane level (small steps in ending the evil of mass incarceration) that can be served by the new facilities.

Citizen Comey's Dilemma

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Former FBI Director James Comey's patriotism, regard for the truth and dedication to public service should be beyond question. (Oct.13, p.1)His judgement and egoism not so much. The dilemma which upended Mr. Comey's professional life, and which haunts him still, could have been avoided by a clearer and more just protocol governing the conduct and disclosure of  criminal investigations by the FBI of candidates for elective office.

There must be a statutory, inviolate rule that such investigations may not be disclosed unless they result in the bringing of an indictment by a grand jury. The validity of any such indictment would be subject to prompt, in camera judicial review. The trial and any appeal must be expedited. The same law should override the opinions of the Office of Legal Counsel of the Justice Department, that a sitting president may not be criminally prosecuted for unlawful conduct. This will insure that investigations need not be rushed unduly nor defanged by the prospect that the subject of the investigation may be elected to office before its conclusion.

AG Barr Seeks Foreign Assistance to Discredit Mueller

It is now Attorney General Barr's highest priority to travel the world seeking evidence to impugn the motives of the investigators who uncovered and reported on Russian interference in the 2016 election. Manifestly, neither Mr. Barr nor his presidential client have any interest in preventing ongoing and further meddling by Russia in the forthcoming election despite dire warnings from the intelligence community and Robert Mueller. Indeed, Mr. Trump has made it clear that he would welcome such illicit aid.

With the integrity of our election in peril and the foundation of our democracy gravely threatened, the Democrats in Congress must take on the responsibility shirked by our Chief Executive. They must empanel a special blue-ribbon commission whose mission is to devise measures to counter the assault on our political process and insure the integrity of our elections. In other words, take the protective steps one would have expected from our president and attorney general who appear more interested in giving comfort to Russia than safeguarding America.

The Historical Record

If this country survives and its history written in the decades and centuries to come,

I suspect that the current era will be denominated “The Age of Unreason”. It will be recorded
that a nation founded by immigrants and populated by their descendants closed its doors to those seeking asylum and a better life.
That its youth emulated the salutes and symbols and adopted the hatred and vitriol of those whom their grandfathers had fought to the death to defeat. Historians will express befuddlement
that a man with no historical knowledge or interest, no sense of mission save self-adulation, no
moral fiber and possessing acute criminal instincts, was elevated to leadership of what was then labeled the “Free World”.
Chroniclers will wonder how men and women of high elective office, fully aware of the destructive and disruptive nature of their leader, chose to ignore the chaos and conflict reigning about them in their pursuit of self promotion. Historians likely will question how a Supreme Court dominated by originalists and professing aversion to activist judging could bend the constitution to justify a private right to bear arms and a corporate right to use wealth to dominate the electoral process; the same court that pronounced itself powerless to remedy patent deprivation of voting rights by ultra-partisan electoral mapping.
Finally, much will be written about a nation once united in common purpose that was splintered
into tribal cohorts exuding venom for one another and a congress paralyzed and cowered into inaction, fearful of retribution by an egomaniacal ignoramus and his blindly devoted base.
Then, hopefully, it will document how the darkness receded, the nation found its way and the grand experiment that is American democracy was saved.  

U.S. Investigates Emissions Pledge

If anyone needed more proof that William Barr acts as the personal attorney of President Trump, his "Roy Cohen", rather than as  an independent Attorney General, look no further. After wrongly absolving Mr. Trump of obstruction of justice, notwithstanding the factual findings of Special Counsel Mueller, and by commencing investigations of those who probed or "spied on" the president, Mr. Barr's Justice Department has now opened an antitrust investigation of the automakers who struck a deal with California to reduce tailpipe emissions beyond the limits preferred by Mr. Trump. The Department has also sent an intimidating warning letter to California officials. 

Never mind that this latest investigation turns antitrust law on its head (there is no violation absent collusion between the companies), Mr. Barr is sending a clear signal that anyone who defies the wishes of his client, in this case Mr. Trump's desire to enrich Big Oil and undo anything put in place by President Obama, will be subjected to massive scrutiny and legal harassment. 

U.S. to Challenge California's Right to Set Pollution Rules

The Trump-directed EPA has indicated it is considering revoking California's legal authority to set tailpipe pollutions standards that are stricter than federal regulations. (NYT, 9/6, P.B4) This action is being taken despite the fact that 13 other states have adopted California's forward-looking effort to curtail global warming and air pollution and that major auto makers have announced their approval of and commitment to the higher standards.

In contemplating this environmentally destructive retreat from sensible measures to combat the life-threatening menace of increasing greenhouse gases in our atmosphere, the EPA must heed the caution voiced by Sen. James Imhofe of Oklahoma, who happens to be a global-warming denier and apologist for Big Oil. At a hearing of the Senate Committee on Environment and Public Works, held in July, 2007, Sen. Barbara Boxer, the committee chair, berated the EPA for unduly delaying action on California's request for a waiver allowing the state to set its own standards. In defending EPA's inaction, Sen. Imhofe stated:

" In making a decision of this magnitude, it would be improper for the EPA not to involve the public and formally solicit notice and comment". The Senator added that the EPA needed time to read, assess and compare the comments and to thoroughly investigate the issues raised by California, analyze each and every document, examine every argument raised in opposition and determine the ramifications of a decision. He concluded, " then, and only then, EPA needs to make a decision... rushing this process is unacceptable. In fact, it would be arbitrary and capricious in law and in fact. "

Amen.