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.     

Which is press-worthy, the truth of the dossier or who paid for it?

During the 2016 presidential election campaign the Republicans and the conservative media cowed the mainstream press into treating the Clinton email issue as having the same significance as the many disclosures about Trump’s unfitness for the presidency, treating each with equal attention and gravity. Eventually, though too late, the press seemed to recover its backbone and gave due attention to President Trump’s lies, ignorance and utter inability to govern.

Unfortunately, the media seems to have succumbed recently to its former fearfulness of right-wing criticism. Thus, it has signed on to raising the importance of who, among the Clinton campaign leadership, paid for or knew about the opposition research which resulted in compilation of the notorious Steele dossier. That meaningless issue, which has no relevance to whether the Trump campaign collaborated with Russia, is being used by Republicans and their allies in the conservative media, to obscure their failure to seriously address the Russian attack on our democracy and divert attention from the impending indictments being brought by the special prosecutor

Supreme Court and the First Amendment

The Supreme Court has accepted for decision a case which raises the right of public employees to refrain from paying any union dues, even for essentially non-political union activities such as collective bargaining and contract administration, from which they directly benefit. The objectors are non-union employees who oppose the political activities and/or contributions of the union, yet accept wage increases won by the union for all employees.
The case is part of a campaign to destroy public employee unions. Given the philosophic make up of the current court, the result is a foregone conclusion but the underlying rationale is deeply troubling. Apparently, the conservative majority elevates certain First Amendment protections over others, depending upon whose ox is being gored.
If Americans have a First Amendment right to object to being compelled to contribute to causes they abhor, why must they pay that portion of their taxes earmarked for war materiel or nuclear arms production? If they are not entitled to a corresponding tax reduction, they should, at the least, be permitted to require that their payments be allocated to governmental services they support.
Similarly, corporate shareholders should have the constitutional right to be compensated to the extent that the value of their shares are diminished by contributions made by the corporation to political action committees who support candidates or causes anathema to the shareholder. Taxpayers and shareholders are no less entitled to First Amendment protection than are non-union workers.