A Better Way to Protect Mueller

Do Neal Katyal and Kenneth Starr really believe that the Mueller investigation can best be protected by shaming Donald Trump into agreeing to a "Bork-style" regulation by which he would agree not to exercise his constitutional powers to effect the discharge of the special prosecutor or limit his independence? Gentlemen, get real. President Trump gives proof every day that he is not in the least concerned that his actions demonstrate a guilty conscience and that there is much he wishes to keep hidden.

The only effective way to keep the Mueller investigation going (and it is our only defense to Russian cyber attacks given Trump's abdication of leadership), is for members of Congress, across party lines, to show the fortitude this crisis demands and make clear to the President that interference with Mueller's work will surely bring about his impeachment

Fix the FBI Don't Politicize It

In the guise of chiding President Trump, Professor John Yoo (yes, the same lawyer who, as a George W. Bush public official made the case justifying "enhanced interrogation", ie. torture), now gives cover to the unjustified forcing out of F.B.I. deputy director Andrew McCabe and the release of an apparently one-sided, hatchet-job memo prepared by the staff of the hopelessly conflicted Rep. Devin Nunes.

Prof. Yoo, in substance, applauds the "clearing out" of McCabe because of his wife's political involvement and gives credence to the notion that the use of information obtained from Russian sources by a recognized intelligence professional is, somehow, a "shocking collapse of standards" because it was financed by a political campaign. All of this would be OK, Prof. Yoo suggests, if only President Trump didn't muck it up by taunting McCabe and injecting a claim of conspiracy to eavesdrop by the Obama administration.

Ironically, Prof. Yoo's article invokes Machiavelli without seeming to recognize the Machiavellian nature of his own presentation.

What Would a Flynn Pardon Mean?

There are those, mainly Trump supporters, who declare that former Director of National Security
Michael Flynn has no information that would implicate President Trump in a conspiracy to collude with
the Russians to affect the American presidential election. No proof of collusion, nothing to fear.
Others are convinced that Gen. Flynn must have valuable inculpatory information or he would not
have been allowed the favorable plea deal which involved only a single felony, limited jail exposure
and a free pass for his son.

However, those in the president's camp who believe that Flynn poses a serious threat to Trump's
presidency, or even his liberty, counsel that the risk can be obviated by granting him a pardon. The
opposition warns that such an action would likely provoke a constitutional crisis. A pardon would be
ineffective anyway, say the anti- Trumpists, because Flynn would still be prosecutable by state
attorneys-general for violation of local law, violations beyond the President's power to pardon ..
Besides, they argue, it is reasonable to presume that Flynn, who has been cooperating with the
investigation headed by Special Counsel Robert Mueller, has already given statements under oath and
any significant alteration of his testimony would constitute perjury, a crime which would not be
pardonable. Since the pardon would remove any legal basis for Flynn to invoke his Fifth Amendment
right against self-incrimination he could be compelled to testify. Anyone hoping that Flynn will take the
stand and give testimony that brings down the Trump presidency should take no comfort in that
scenario.

If President Trump pardons Flynn the general will be relieved of exposure to federal punishment
stemming from his plea. If a state attorney-general then attempts to bring state criminal charges
against Flynn he can refuse to testify by claiming his Fifth Amendment right since the federal pardon
does not shield him from criminal exposure under state law. Thus, if Flynn is pardoned by the
President he will be able to avoid criminal liability under federal law and minimize his exposure under
state law, by refusing to testify (although statements he has already made might well be admissible
against him in state court). Given this virtual immunity Flynn, if he is so inclined, can spare the
President the consequences of his potentially damning testimony. Ultimately, it may come down to
whether Gen. Flynn, for personal or patriotic reasons, elects to tell all he knows or chooses to go silent.

House Rush to Judgment

Representative Trey Gowdy, who bills himself as an experienced and impartial prosecutor in his earlier life, is now spearheading a mad dash to close down the investigation, by the House Intelligence Committee, of Russian interference and Trump campaign collusion in the last election (Dec. 16, p.A14). Stacking multiple interviews on short notice, in different locations, on dates inconvenient to Democratic committee members, Republicans seek to end harmlessly the congressional inquiry even as they badmouth the continuing investigation being conducted so professionally by Special Counsel Robert Mueller.

Rep. Gowdy, who found it perfectly appropriate to prolong a needless revisitation of Benghazi for the umpteenth time, to badger the Clinton campaign, has now falsely opined , even before all the interviews have been concluded, that no evidence of collusion or conspiracy has been produced. It would seem Mr. Gowdy's sense of timing (and fairness) depend upon the political identity of his subject

House Rush to Judgment

President Trump and Obstruction

I applaud Prof. Alan Dershowitz's decrying the criminalization of political differences (NYT, Nov. 29,2017,P. A23) but strongly disagree with his conclusion that President Trump's attempt to stifle the Flynn investigation was, somehow, lawful. It is a federal crime to attempt to obstruct justice by corrupt persuasion which courts have defined as persuasion motivated by an inappropriate or improper purpose to convince another to engage in a course of behavior that impedes an ongoing investigation. By telling FBI Director Comey to discontinue his investigation of Michael Flynn, President Trump was attempting to impede that investigation for an improper purpose, namely to prevent exposure  of his own misdeeds or those of his campaign.

Yes, a president has vast executive powers but, unless one accepts Nixon's infamous pronouncement, that an act cannot be a crime if done by the president, Trump can be guilty of obstruction of justice and, thus, be subject to impeachment.

VOTE YES FOR A CONSTITUTIONAL CONVENTION

The justification offered by the editorial board of the New York Times, for its recommendation that New Yorkers vote no to the holding of a constitutional convention, is mealy-mouthed, even shameful. Listing all of the problems that impede effective governance and erode public trust, problems embedded in our archaic and lugubrious constitution that cry out for remedy, the Times, nevertheless, opts to forgo a once in a generation opportunity for change.

The reason? Given the current political climate it is likely that a constitutional convention will be dominated by unsavory hacks who will make no change or just make the document even worse, all at great expense to the taxpayer. Besides, the editorialists say, all the needed changes can more easily be enacted by legislators (provided they are pushed to do the right thing by an aroused electorate).

These arguments do not withstand scrutiny. Would it make sense to urge the citizenry not to vote in an election because the polls suggest that charlatans are likely to win? That because the road to realization of a just cause is burdensome and freighted with risk, the journey should not be undertaken?

I suggest that the right approach would be to fight to change the process by which constitutional delegates are chosen and organize to promote progressive and much needed changes to our outdated and hopelessly wordy foundational document. Trying to work around, by legislative action, the existing constitutional roadblocks is not doable. Constitutional prohibitions and prescriptions are not susceptible to statutory override. For example, the constitution requires that judges step down when they become 70, just when their experience and sagacity are at their peak and legislators cannot alter that hoary deadline.

As the editorial acknowledges, voters are already apathetic to change and have consistently rejected convening a constitutional convention. It will hardly awaken their civic conscience to urge yet another negative vote, especially since the opportunity to effect change will not come again for twenty years.