The Charges Against McCabe

The Inspector-General of the FBI has made a criminal referral to the Justice Department apparently recommending that criminal charges be brought against former Acting Director of the FBI Andrew McCabe for making unauthorized disclosures to the press and then lying about it to the I.G. McCabe's alleged misconduct has been seized upon by the likes of Devon Nunes, Chair of the House Intelligence Committee and Sean Hannity of Fox News, both vociferous defenders of President Trump, as proof that the FBI's Russia investigation is a witch hunt and that McCabe is part of a cabal attempting to bring down the Trump presidency.

Assuming, for the sake of argument, that the allegations of McCabe's misdeeds are true, what each of Mr. Nunes and Mr. Hannity should be required to answer is, who was hurt by McCabe's alleged transgressions, Hillary Clinton or Donald Trump? The incontrovertible fact is that the information allegedly leaked by McCabe was damaging to Ms. Clinton and, thus, helpful to Mr. Trump. How in the world can this set of facts be spun to support the notion that the FBI is out to get Trump?

Alan Dershowitz Reborn

Alan Dershowitz was long regarded as a champion of civil liberties (he served on the board of the ACLU), as an outspoken advocate for victims of an oppressive criminal justice system and as a distinguished professor of law at Harvard University. While, at times, he espoused controversial, even outrageous, legal positions and his confrontational persona offended some, his sincerity and commitment to a just and evenhanded legal system was seldom questioned.

In recent days, however, a new model of Prof. Dershowitz has gradually evolved. This altered version began with small steps that seemed in keeping with his concern for rigorous implementation of constitutional protections even as his pronouncements, seemingly by coincidence, aided a beleaguered President Trump. Thus, Dershowitz authored an op-ed piece for this newspaper which cautioned against criminalizing political conduct and argued that the president could not be guilty of obstruction when he directed FBI Director Comey to discontinue the Flynn investigation. The learned professor's argument seems to have overlooked the recognized legal principle that actions motivated by an improper purpose, even though within the president's executive powers, may still constitute obstruction of justice.

In the service of promoting his new book,"Trumped Up", Dershowitz began to appear on the Fox cable network, which apparently welcomed the opportunity to enlist an icon of the Left in support of pro-Trump arguments. The more often he appears, particularly on the program hosted by Sean Hannity, the stronger and more strident the professor's pro Trump rhetoric becomes (though he appears to adjust his take and tone when on non-conservative channels). Unsurprisingly, President Trump, who reportedly gets most of his information by watching Fox News, has taken note of this unexpected source of legal support and Dershowitz was invited to dine at the White House.

Now Dershowitz appears regularly on the Hannity show and makes full-throated attacks upon President Trump's nemesis Special Counsel Robert Mueller and Deputy Attorney-General Rosenstein. While disclaiming any role as Trump's attorney he, nevertheless, offers advice apparently intended to guide the President's defense. Thus, he recently suggested that Trump should decline to be interviewed by Mueller and should invoke not the Fifth Amendment's protection against self-incrimination (which would be politically disastrous) but rather the Sixth Amendment's right to counsel. The professor's perplexing argument is that Trump could proclaim his desire to testify but assert that he is foreclosed from doing so by his attorneys' direction to abstain. Being bound by his attorneys' instructions Trump is somehow deprived of his right to counsel. This argument is not only legally baseless and illogical, it contravenes the well-established principle (which surely is known to the former Harvard professor) that the client has the ultimate and absolute right to decide whether to testify on his own behalf.

It is difficult to fathom why Professor Dershowitz has executed such a radical about-face at this stage of his long legal career. One can only speculate that he may be driven by a need for renewed public attention, an appetite whetted by the new-found adulation heaped by Fox News, a desire to promote the sale of his book or an identification with the Middle East policy of the Trump administration. In any event, for better or for worse, the new Alan Dershowitz has regained, for the moment, his place on the national stage.

Good Riddance Mr. Speaker

Christopher Buskirk, in his not-so-fond farewell to Speaker Paul Ryan (NYT April 13, A27), accurately details the many ways in which Mr. Ryan failed to deliver on his promises and to fulfill his purported potential as a financial policy wonk. Yes, he has left a mess but Mr. Buskirk's remedy is hardly a prescription for redemption. Instead, Mr. Buskirk perceives a need for new leadership that will be in step with the president and his agenda and which will resonate with "the intellectual and political reformation underway on the right".

There is nothing intellectual or reforming about the president's agenda. It is devoid of thought and rife with corruption. Indeed, Mr. Ryan's failings pale in comparison with the alternative chaos promoted by Mr. Buskirk as the saving solution.

Scott Pruitt and the EPA

So, according to today's front page (NYT Mar. 18), Scott Pruitt intends to use his position as head of the Environmental Protection Agency to run for president in 2024. What is also apparent is that Mr. Pruitt is using his post as a Trojan-horse assault upon the very agency he is charged with leading. Mr. Pruitt has every right to champion deregulation of environmental protections and oppose efforts to combat climate change, as he did when he was attorney-general of Oklahoma, but he should not be permitted to sandbag an agency created by law to accomplish just the opposite. His wholesale dismantling of scientifically-based programs and regulations and his harsh critique of his own agency is subversive and wholly at odds with the obligations of his office. 

That's what happens when you elect a president who puts a fox in charge of the henhouse.

President Trump and Gun Control

Two things became apparent during the "show and tell" gun conference President Trump conducted
today. First, he compulsively {and predictably) blames President Obama for lack of gun regulation,
ignoring that every attempt by his predecessor, to secure a sensible law, was blocked by an NRA-
dominated Republican majority in Congress. Now, only he, an action hero in his own mind, can bring
about true reform, however incremental.

Second, President Trump's insistence, that a potential shooter would not enter any school if he knew
he would be met by a hail of bullets from armed teachers, demonstrates his complete ignorance of the
psychological dynamics underlying these tragedies. The attacker invariably embarks on these
massacres fully believing and intending that he will be killed in the attempt. Indeed, the record shows
that most shooters commit suicide if they are not first gunned down. So arming school personnel is
hardly a deterrent.

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.