Friday, November 22, 2019

The Most Serious Ground for Impeachment

In the last offering in these pages, your humble servant submitted for your incisive consideration that President Trump can be impeached, and convicted, for stealing from his charitable non-profit before he took office. [1] It is to be admitted, however, that people often think of impeachable offenses as misdeeds committed while in office, and actions committed in connection with the performance of that office.

We really need to consider that problem no further than to speculate about what could be done about a dead body found buried in a president’s former residence. Still, it will be useful to take a look at the pertinent constitutional provision to see if the impeachment process is so restricted. Article II, Section 4 of the Constitution reads this way:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” [2]
There is no restriction on when the treason, bribery, or other crime is committed. And, really, we should be grateful for that. Otherwise, a failed attempt at treason, only discovered after the perpetrator took office, would be without an immediate remedy in the case of the President; who, according to prevailing wisdom, cannot be prosecuted until his term is completed.

But there is another impeachable offense that the president has committed in office, beyond the extortion attempt on the president of Ukraine that congressional Democrats appear to be hanging their hats on. He revealed state secrets to the Russians! [3]
“The intelligence disclosed by Mr. Trump in a meeting with Sergey V. Lavrov, the Russian foreign minister, and Sergey I. Kislyak, the Russian ambassador to the United States, was about an Islamic State plot….” At the time that happened in 2017, the prevailing wisdom was that Mr. Trump’s disclosure wasn’t illegal, since “the president has the power to declassify almost anything.” 

To the extent that is true, it isn’t a complete analysis. As the Lawfare blog pointed out at the time,

“Questions of criminality aside, we turn to the far more significant issues: If the President gave this information away through carelessness or neglect, he has arguably breached his oath of office….in taking the oath President Trump swore to ‘faithfully execute the Office of President of the United States’ and to ‘preserve, protect and defend the Constitution of the United States’ to the best of his ability. It’s very hard to argue that carelessly giving away highly sensitive material to an adversary foreign power constitutes a faithful execution of the office of President.

“Violating the oath of office does not require violating a criminal statute. If the President decided to write the nuclear codes on a sticky note on his desk and then took a photo of it and tweeted it, he would not technically have violated any criminal law–just as he hasn’t here. He has the constitutional authority to dictate that the safeguarding of nuclear materials shall be done through sticky notes in plain sight and tweeted, even the authority to declassify the codes outright. Yet, we would all understand this degree of negligence to be a gross violation of his oath of office.” [4]
Still, we need not concede the illegality point so readily. Federal statute provides that whoever “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information…obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes” is subject to a fine, imprisonment up to ten years, or both. [5]
Now the information Mr. Trump disclosed had come from an ally, probably Israel, undeniably a foreign government. [6] Classified information for these purposes has the statutory definition of “information which…is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution….” That means that once the appropriate agency designates information declassified, it retains that status until the agency declassifies it. Of course, the President has the power to order the information declassified. But Mr. Trump didn’t do that in this case; he simply disclosed the information. To the Russians. 

Thus, it appears that the President is capable of violating this law after all. And this he manifestly did. His disclosure to the Russians of classified information should be yet another article of impeachment to be brought before the Senate for trial.  

Monday, November 18, 2019

Impeachable Upon Arrival

In a previous post in these pages, your humble servant opined that congressional Republicans would begin to abandon ship if the allegations of President Trump’s extortion attempt on the president of Ukraine were fleshed out. [1] Alas, it now appears that confirmation bias will carry the day.

Right now it isn’t clear whether the defense will be that Trump did not engage in the actions alleged, or that he did so but that his actions were legitimate. Either way, the zeitgeist appears to be that he will be impeached in the Democratic House but acquitted by the Republican controlled Senate.

But the Democrats don’t need to put all of their impeachment eggs in the extortion basket. All they need to show is that the President engaged in some sort of high crime or misdemeanor. [2]
Well, how about the fact that “Donald Trump spent more than a quarter-million dollars from his charitable foundation [the Donald J. Trump Foundation] to settle lawsuits that involved the billionaire’s for-profit businesses, according to interviews and a review of legal documents” by The Washington Post.

“Those cases, which together used $258,000 from Trump’s charity, were among four…documented expenditures in which Trump may have violated laws against ‘self-dealing’ — which prohibit nonprofit leaders from using charity money to benefit themselves or their businesses.

“In one case, from 2007, Trump’s Mar-a-Lago Club faced $120,000 in unpaid fines from the town of Palm Beach, Fla., resulting from a dispute over the height of a flagpole.

“In a settlement, Palm Beach agreed to waive those fines — if Trump’s club made a $100,000 donation to a specific charity for veterans. Instead, Trump sent a check from the Donald J. Trump Foundation, a charity funded almost entirely by other people’s money, according to tax records.

“In another case, court papers say one of Trump’s golf courses in New York agreed to settle a lawsuit by making a donation to the plaintiff’s chosen charity. A $158,000 donation was made by the Trump Foundation, according to tax records.

“In another case, court papers say one of Trump’s golf courses in New York agreed to settle a lawsuit by making a donation to the plaintiff’s chosen charity. A $158,000 donation was made by the Trump Foundation, according to tax records.” [3]
This behavior was blatant. Mr. Trump basically stole from his non-profit foundation. As The Washington Post further reported, 

“‘I represent 700 nonprofits a year, and I’ve never encountered anything so brazen,’ said Jeffrey Tenenbaum, who advises charities at the Venable law firm in Washington. After The Washington Post described the details of these Trump Foundation gifts, Tenenbaum described them as ‘really shocking.’

“‘If he’s using other people’s money — run through his foundation — to satisfy his personal obligations, then that’s about as blatant an example of self-dealing [as] I’ve seen in awhile,’ Tenenbaum said.”

It’s true that Trump engaged in this activity before he was President. But so what? The Constitution doesn’t require that impeachable high crimes and misdemeanors must be committed while in office. And how are Trump’s partisans going to defend this?

If House Democrats think that what they’re doing is worthwhile, they should not sacrifice thoroughness for speed. They’re going to need an airtight case if they don’t want the impeachment to die in the Republican controlled Senate. Trump’s misuse of the funds of his non-profit is going to have to be an article of impeachment. And the matter is going to have to be investigated sufficiently to be tried before the Senate.

Monday, November 11, 2019

Deporting Veterans

Is there any excuse for deporting a veteran of the U.S. military? If anything, this should be a bipartisan issue. But as testimony to the fecklessness of Congress, these deportations are still going on. 

Many are under the impression that service in the U.S. military results in the automatic conferral of citizenship. That’s certainly the way it should be. It would be basic human decency, after all. But, alas, it is not so. 

Even those who honorably serve in the military must still satisfy certain bureaucratic requirements. [1] [2] One still has to apply, for example, and the applicant will only be excused “from any specific period of residence or physical presence within the United States, so long as the application is filed while the applicant is still serving in the military or within six months of an honorable discharge.” [3] If you blow the deadline, tough luck.

As a result, in “a country where we celebrate and honor those who heeded the call to serve in the military, most Americans would be shocked to learn that just south of the U.S.-Mexico border in Tijuana, Mexico, exists the Deported Veterans Support House, better known as ‘The Bunker.’ Marked by a banner in red, white, and blue, and located next to a tire shop in a residential neighborhood, the bunker is a shelter for veterans of the United States Armed Forces who were deported from the same country they fought to protect, even after being honorably discharged.

“Once inside, you might be greeted by veterans who are miles away from their homes and their families and denied access to the benefits they earned, need, and are still eligible for under the law. In the face of this injustice, however, they are still proud of their service to our nation and are fighting to return home. It’s time for Congress to join this fight and bring them back to the families and nation they risked their lives to protect.” [4] 

In response to this travesty, Representatives Mark Takano, Juan Vargas, and Raúl M. Grijalva have introduced H.R. 4890 [5], “the Veteran Deportation Prevention and Reform Act of 2019 to prevent noncitizen veterans from being deported, improve tracking of noncitizen veterans in immigration proceedings, and bring certain eligible deported veterans back home.” [6] The proposed legislation

“ · Requires DHS to maintain data on potentially removable noncitizen veterans. The DHS Secretary would be directed to establish an annual training program for ICE personnel on handling noncitizen veterans.

“ · Directs DHS to establish a Military Family Immigration Advisory Committee that would provide recommendations on whether an individual should be granted a stay of removal, deferred action, parole, or be removed from the country.

“ · Provides a pathway of citizenship for spouses and children of members of the Armed Services through a joint program between DOD and DHS.

“ · Requires DHS to establish a program and application procedure that allows eligible veterans to be admitted as noncitizens lawfully admitted for permanent residence. Also directs the Attorney General to reopen any removal proceedings of each noncitizen veteran issued and where appropriate, rescind any orders of removal already issued.” 

This legislation seems like a common-sense reform, but your humble servant would go further.

For the U.S. military to accept the services of someone who would not be eligible for citizenship down the road is exploitation. Therefore, the screening should be front-loaded, and should take place at the time the alien applies to serve in the military. After that, citizenship should be conferred automatically, without the need for further application, after one year of service. The granting of citizenship under these terms should apply to everyone in the applicant’s immediate family. If the Department of Homeland Security should thereafter discover anything in the applicant’s history that should be disqualifying, then the Department should file a petition revoking the arrangement within the first year of service.

It really is the least we can do.