Congress recently voted (229—202) to hold sometime Trump whisperer Steve Bannon in criminal contempt for defying a subpoena to testify in the Congressional investigation of the January 6 riot. In refusing to comply, Mr. Bannon asserted executive privilege. All but 9 Republicans voted against holding him in criminal contempt.
It is certainly true that partisan motives were behind at least some of the votes in favor. And it is also true that members of both parties have ignored Congressional subpoenas in recent years without penalty. The Department of Justice has repeatedly declined to prosecute criminal referrals for contempt of Congress.
Making things worse, Congress has studiously ignored dealing forcefully with officials who lied under oath at Committee hearings. James Clapper, former Director of National Intelligence, and James Brennan, former CIA Director come to mind. Then there are lesser figures like Lois Lerner whom the Justice Department refused to prosecute after a criminal referral.
In the case of Steve Bannon we have an open and shut case of criminal contempt. Bannon argues, along with former President Trump, that he is covered by executive privilege. That argument is without merit. Bannon came and went as a member of the administration long before the events of January 6, 2021, the subject of the subpoena. His conversations with Trump during the time he was a civilian are simply not covered by executive privilege. And pretty much everyone knows it, including the invertebrate Republicans who voted against issuing the contempt citation.
If Bannon is not held to account for his willful refusal to comply with a lawful subpoena, the power of Congress to hold the executive branch to account will be diminished even further than it already is. It would be nice to think that more than 9 of 211 Republicans would be capable of figuring that out, but apparently they suffer from the paralyzing fear that Donald Trump will belch forth disapproval of them for not being sufficiently obsequious.
Mr. Bannon may invoke his 5th amendment right against self-incrimination. Should he decide to do so Congress could be faced with the interesting issue of whether to grant him some sort of immunity in order to compel his testimony.
It should also be noted that there is a jail cell in the Capitol building where Congress could legally order Mr. Bannon be held until he testifies before the House committee. In the event that Mr. Bannon continues to defy the subpoena and Justice declines to prosecute, that would be a fitting solution to Bannon’s ongoing defiance of a legal order.
It has always been obvious to the more astute observers of the political scene that Joe Biden is a party man, a partisan hack, and not a very bright one at that. Regrettably, some people actually fell for the line that on the contrary, Mr Biden is a moderate who would “reach across the aisle” to find “common ground” etc. etc. By now, they should have been disabused of that notion.
In his first 100 days in office Biden the moderate has proposed $6 trillion in new spending, much of which is for middle class welfare programs. We are for instance, going to have “free” community college, paid leave, new spending on child care and on and on. The list is endless.
All this is supposedly going to be “paid for” by taxing “the rich”. Except of course that it won’t be. There isn’t enough money in the world to pay for Mr. Biden’s fantasies. Regardless, the idea of taxing the rich to pay for a whole new menu of middle class freebies simply completes the progressive journey from feigning self-sufficiency to promoting welfare dependency. That has been the agenda all along. After all, it has such an impressive track record, as in Venezuela.
Among the more fascinating proposals Mr Biden is flogging are the ones for education and police reform. They are the purview of state and local governments. Both the management of police and public education in America’s cities have been fiefdoms of the Democratic Party for at least 50 years. The management of these institutions has been a gargantuan failure, particularly for minorities. Mr. Biden proposes to give us more of the same.
In the meantime Mr Biden’s cheerleaders in the press are ecstatic about his poll numbers. The latest has his support around 52%. As the Washington Post helpfully points out, 52% is a majority. What the Post didn’t mention was that, with the exception of Donald Trump, Biden’s poll numbers at this point in his presidency are lowest of any president’s since 1945.
The facts of the case are clear. President Donald J. Trump incited a mob that subsequently attacked the Capitol building where Congress was in session. The attack was designed to intimidate Congress, prevent them performing their Constitutional duty to properly count the electoral votes of all the states, invalidate Biden’s victory, overturn the election and grant Trump a second term. Anyone who doubts this has merely to read the transcript of Trump’s hour long rant in which he urged the crowd to march down Pennsylvania Avenue.
Assuming Trump does not resign in the hours ahead, Speaker Pelosi should, by Tuesday at the latest, put a single article of impeachment on the floor for a vote. That article should accuse Trump of incitement to insurrection. It will pass. The Democratic House would impeach Trump for littering, given the chance.
The argument that there is not enough time for the House to reconvene and vote on a single article of impeachment simply does not hold water. If House members cannot be stirred enough to come back to Washington for a matter of this magnitude, the voters should be made aware of it. Further, the issue does not require a lot of fact finding. We all know what Trump did. His speech inciting the crowd is on television.
There is an argument that Trump’s speech to the crowd was reckless but not sufficiently reckless to give rise to criminal liability. That argument rests on the difficulty, if not impossibility of (1) proving criminal intent beyond a reasonable doubt, and (2) the first amendment protection of speech. These arguments are both correct and irrelevant.
Impeachment requires the commission of High Crimes and Misdemeanors. But those High Crimes and Misdemeanors should not be understood to require a violation of a criminal statute. Referring to impeachment Alexander Hamilton said in Federalist 65, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust, …”. What President Trump did was precisely that.
If it so desired, the House could surely report out an article of impeachment by Thursday, January 14. That would give the Senate several days to debate and then vote on the proposition. That would provide two immense benefits. First, and most importantly, it would put each Senator on record. Second, if successful, it would prevent Trump from ever holding office again.
The importance of holding Trump to account for his behavior cannot be overemphasized. By inciting the crowd to riot, he is not only at least indirectly responsible for the deaths of at least 5 people; he also provoked an attack on the foundations of the Republic and constitutional governance. This from a man who took an oath to preserve, protect and defend the Constitution of the United States.
Trump incited a mob to attack Congress when it was fulfilling its constitutional duties in order to overturn an election, an election Trump lost. In so doing he launched a full fledged attack on the lawful foundations of our constitutional republic. If that is not sufficient to require removal from office, then nothing is.
For the second time in 2 days the Democratic caucus in the Senate voted unanimously (except for Doug Jones, D. AL) to refuse to allow a vote by the full Senate on a $2 trillion bill designed to cushion the impact of the Corona virus. This while the financial markets are cratering, state and local governments are scrambling for resources, hospitals are stressed, small businesses are running out of cash and job layoffs are proceeding at what will likely be a record pace.
It would be one thing if Democratic demands were designed to improve the proposed legislation. But many of the demands have nothing to do with the crisis at hand. For example, Speaker Nancy Pelosi who is working hand-in-glove with Chuck Schumer has proposed including same-day voter registrations as part of a package. Democrats are also demanding additional collective bargaining power for unions, increased fuel emissions standards for airlines, and expansion of wind and solar tax credits.
This is the same Democratic caucus that correctly pointed out that the U.S. Government was asleep at the switch when the signs of danger began to emerge back in January. Then again, Congress was briefed on the situation in closed door meetings with agency representatives. And what did Congress do about it? It had already impeached Trump on December 18, 2019 but then Speaker Pelosi held up sending the impeachment articles to the Senate until January 5. The trial began January 12, 2020 and the preordained acquittal came on February 5, 2020. And all the while COVID-19 was infecting more and more people. Nice work, guys.
It is also worth noting that on January 31, 2020 in a response to the Corona virus, Trump issued the following order” “Foreign nationals other than immediate family of U.S. citizens and permanent residents who have traveled in China in the last 14 days will be denied entry into United States.” Progressives who are now (correctly) complaining that the Trump didn’t act quickly enough, were also busy condemning Trump’s January 31 order as “racist” even though China was the origin of the disease. Because woke progressives are blind to anything but a burning desire to bring down Trump at all costs. And they will stop at nothing in the attempt to do so.
So while the house is burning down, the crowd that argued in favor of eliminating the filibuster decided to…filibuster emergency remedial legislation. The price of this blackmail is the passage of a progressive wish list that has absolutely nothing to do with the crisis at hand.
Enter Mr. Biden, the alleged moderate. For his part he is egging Congressional Democrats on, joining in the call to favor the common man over corporations and all the usual nonsense. One is left to wonder how Mr. Biden thinks people will be able to get back to work if their business go bankrupt while Chuck Schumer is busy working on solar panel subsidies.
While all this is going on lefty Democratic media cheerleaders have actually begun to argue that Donald Trump should be denied access to media coverage until the press has had time to vet his remarks. Note that these media truth tellers had no problem with those pillars of rectitude Bill and Hillary Clinton. In any event the Trump blackout arguments are now coming from such luminaries as Washington Post media analyst Margaret Sullivan and MSNBC host Rachel Maddow. The reason is obvious: Trump’s poll numbers have begun to rise, and that must be stopped at all costs.
Given the dire situation, the behavior of the Democrats and their media cheerleaders goes well beyond politics as usual. It is indecent and even more dishonest than usual. It shows what they are really made of. And it isn’t pretty.
The current imbroglio over the impeachment of Donald J Trump, and the various investigations associated with it combine to present a text book example of why progressivism, better described as managerial socialism, is doomed to failure. Like all forms of socialism. It is doomed to failure because, seen through the progressive lens, the world is simply a series of challenges to be met on the road to perfection. Human nature, in the progressive mind, is infinitely elastic and challenges along the road can be met by scientifically discovering and implementing the right policies designed to achieve the correct outcome, which is ultimately the perfection of man and society.
Progressivism has no understanding of, or framework for coping with the tragedy of the human condition. The tragedy of Romeo and Juliet (properly deconstructed of course) is simply a story of a problematic lack of communication between the Capulets and the Montagues. Nothing that a Blue Ribbon Panel and a little diversity training couldn’t solve. And so in the end, progressivism becomes a soulless and soul crushing bureaucracy. Managed by experts, of course.
This is where the problem lies. The belief that we can “solve” problems emanating from the imperfections of human nature if only we adopt the right policies and procedures necessarily leads to coercive bureaucratic behavior. It won’t “solve” the problem because it can’t, but it will inevitably lead to more and more bureaucratic coercion as managers adopt tighter and tighter restrictions on individual freedom in order to achieve their desired ends.
Which brings us to the impeachment of Donald J. Trump.
It is often said that people argue process when they are losing the substance of a debate. That is probably true. And there should be little doubt that Trump & his sycophants are arguing a lot of about process these days. But consider this: we do not seek either justice or freedom in the abstract; we seek to achieve both in a real world that is imperfect. That requires a delicate balancing act. As part of that balancing, we require the state to meet several procedural tests before it may properly resort to coercion. And the severity of those tests ascends with the consequences of state action.
Because the legal system takes into account the foibles of human nature, checks and balances are built into it. For instance, a person charged with a crime has the right to an attorney and the right to confront his accusers. The state may not apply new law ex post. Persons may not be made subject to double jeopardy. A person may not be compelled to testify against himself, and a refusal to testify may not be considered as evidence of guilt. The state must prove guilt, the defendant is not required to prove innocence. The state must get a search warrant from a court before conducting a search.
Norms, policies and procedures developed over time to protect the rights of the accused were obliterated in the Trump investigations, particularly by the FBI in its pursuit of evidence against Trump in the Russia collusion case. It was from this soil that his impeachment came for charges of abuse of power and obstruction of Congress.
Which brings us to the FISA Court.
The FISA Court is unlike any other in the United States. By law it operates in secret and when the FBI seeks a warrant from the Court, there is no defense attorney to contest it. That, and the misstatements contained in the Carter Page FISA warrants, is why Judge Rosemary M. Collyer observed that the FBI has a higher requirement of candor when submitting a request to the FISA court. In the case of Carter Page, that is a requirement the FBI spectacularly failed to meet. As a result, on December 17, 2019 Judge Collyer issued a blistering order telling the FBI to report to her by January 10, 2020 on what it has already done and what it will continue to do in the future to reform itself. The order can be found at this link.
Which brings us to why progressivism, best described as managerial socialism, is bound to fail. For its implementation it necessarily relies on independent agencies managed by Platonic philosopher Kings divorced from the hurly burly of politics and political accountability. The predictable result is policy failure and more centralization of power in an increasingly coercive central bureaucracy whose raison d’être eventually degenerates into the accumulation of political power for its own sake. All in the name of managerial efficiency in the pursuit of an unattainable end; namely the perfection of man and society.
None of which is to imply that Trump is innocent of abusing the power of his office. Of course he did. So did Barrack Obama and George W Bush, unless of course you think it’s just fine for the President of the U.S. to have on his desk a kill list of U.S. citizens to be summarily executed by drone strike. Or perhaps turn the IRS loose on political opponents as in the Lois Lerner affair.
But let’s go to President Clinton for an example of behavior that is more directly comparable to the behavior for which President Trump has been impeached, but Clinton was not. (He was impeached and acquitted for a whole other set of alleged misdeeds). This instance concerns a memo leaked to the Washington Times, as reported by the Washington Post. The relevant paragraph is quoted below.
“The memo, as quoted in the [Washington] Times, said Clinton pledged to work with Yeltsin to maintain “positive” relations with the United States as both men seek reelection this year. One way to do this, the memo quoted Clinton as saying, is for Yeltsin to stop restricting poultry imports. Clinton said “this is a big issue, especially since 40 percent of U.S. poultry is produced in Arkansas,” the memo said.” See the Washington Post link here.
So with respect to Nancy Pelosi and Company “having no choice” but to impeach Trump, spare me the sanctimony. Sure, his judgment and behavior have been, and probably will continue to be appalling. So what else is new? But let’s not pretend that this is anything other than a progressive power play designed to court the base and short circuit voter preferences before the elections on November 3, 2020.
Democracy doesn’t die in darkness. It dies on the front page in plain sight of all those willing to look.
CNN is reporting that “current and former FBI officials tell CNN they’re concerned that the harsh rhetoric coming from Trump and Barr has only worsened the bureau’s already tenuous standing with the President, leaving them wondering whether federal agents could be less aggressive the next time they have to pursue an investigation.”
CNN goes on the report that Barr “…seized on findings in a blockbuster inspector general report to scold the FBI for using “intrusive” tools with only “flimsy” evidence, and he questioned whether they’d been motivated by bias. Those attacks were particularly noteworthy given that the report found no evidence of bias or improper motivation in the FBI’s decisions to use counterintelligence techniques. The report did however point out serious mistakes and mishandling of evidence by the FBI.”
So let’s unpack this, starting with the obvious. The rhetoric President Trump routinely employs reflects the subtlety and nuance of its author, which is to say: none. It is plain to see that Trump has a great deal of difficulty forming complete sentences. It would be nice, for instance, if the President could occasionally utter a sentence—or send out a Tweet—that actually has a subject, verb and object along with a modifier or two. But I’m not counting on it. And juvenile name calling is hardly the standard we should expect from anyone claiming to be an adult.
But let’s face a few facts here. First, CNN’s sources are interested parties, some of whom may be targets of John Durham’s ongoing investigation into how the whole investigation was handled. Second, contrary to the claims of James Comey, the report of Inspector General Michael Horowitz didn’t vindicate anybody. How do we know? Because that’s his testimony. According to the Washington Post, in his Congressional testimony on December 11, Horowitz said “I think the activities we found here don’t vindicate anybody who touched this FISA,” referring to the Foreign Intelligence Surveillance Act (FISA) applications to monitor Page.
So the relevant question is what did the IG conclude? The answer is that essentially he found (1) no testimonial evidence of improper political FBI bias in the conduct of the investigation, but (2) he found a whole raft of official misstatements and errors, procedural and otherwise. From which we can conclude that the FBI, from top to bottom, displayed a spectacular level of incompetence, stunning even by government standards. Anyone who doubts this simply has to take a quick glance through the IG Executive Summary, particularly pages vii through xv. The report can be found here.
But it doesn’t stop there. This is the type of egregious behavior that would normally have the ACLU and various other progressive civil liberties groups shouting from the rooftops. Not this time. It looks like concern for civil liberties is getting pretty selective over in those quarters.
And as for chilling effects—when law enforcement agencies run rampant over citizens’ rights—that’s exactly what we need.