Guest Commentary on Impeachment in the Cheney Free Press Gets Me Riled Up

It was a "perfect call"

A recent opinion piece by Frank Watson in the Cheney Free Press got my ire up enough to compel me to respond. Watson and I have several things in common: we're both retired Air Force officers, we've both taught, we like to write, and we're both older than dirt. When it comes to our political views, the similarities end there.


Watson is firmly ensconced on the far right of the political spectrum. I lean liberal. Watson's recent offerings in the Cheney Free Press included pieces titled:

• "Socialism is a one-way trip to disaster"
• "Minimum wage creates more disincentives than reward"
• "Once useful to workers, unions have run their course"
• "When all else fails, it's time to impeach the president"

You get Frank's drift, or should I say, yaw, since he's a pilot. All these offerings by Frank are biased and full of logic flaws. But the opinion piece that really got me riled up was the last one, on impeachment.


Frank followed up a May 2018 commentary charging that the Mueller Investigation was a waste of money, with an October 2019 piece claiming that the impeachment inquiry of Donald Trump has no Constitutional basis — “there’s no impeachable offense.” Even if there is, he writes that if the House does go so far as to impeach Trump, the Republican-controlled Senate will surely not vote to impeach him. Because the Senate won’t impeach (according to Watson), it’s all a political stunt. I know what you're going to say, 'What about the fifty or sixty times the Republican-controlled House voted to “repeal and replace” the Affordable Care Act, aka, “Obamacare” while Obama was still President? Wasn't that political theater?' Yeah it was, but Republicans are hypocrisy-challenged.


In what Watson must think is his most telling argument against impeachment he writes that if Democrats attempt an impeachment of Trump, Republicans may come back with an impeachment of Dianne Feinstein or even Nancy Pelosi. Never mind the fact that members of Congress are not impeachable. This childish “goes around comes around warning” is a pathetic argument against Congress fulfilling its constitutional and legitimate oversight obligation.



Let’s be clear, the fact that Donald Trump is a compulsive liar is not sufficient grounds on which to impeach him. The fact that he abused his office as President to extort a foreign power — the Ukraine — to manufacture dirt on a political opponent most certainly is.

As John McCallum, the Managing Editor of the Cheney Free Press writes in his article in the same edition of the paper, “Impeachment is not a criminal proceeding, but rather one dealing with violation of the public trust. We trust our leaders to … not abuse the power of their office to benefit themselves.”



Furthermore, the Trump Administration’s strategy of obstructing Congress’s constitutional oversight responsibility, on top of President Trump’s clear obstruction of the Mueller Investigation, is a violation of 2 U.S. Code § 192, “Refusal of witness to testify or produce papers.” It also flies in the face of the Constitution, and goes against established precedent. Not that Trump has ever concerned himself with either.


A 1982 executive branch memorandum, which remains in force, explicitly states that it is executive branch policy “to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.” This memorandum is known as the Reagan Memorandum.


The Trump Administration's efforts to obstruct Congressional oversight has been termed "unprecedented," by a former House General Counsel. Trump has made his feelings about the House's impeachment inquiry very plain, calling it a "kangaroo court." He vows to prohibit testimony by government officials and to withhold documents subpoenaed by Congress. This in itself is impeachable.


In its 1974 Judiciary report a House of Representatives Committee identified three types of general impeachable conduct: (1) improperly exceeding or abusing the powers of the office, (2) behavior incompatible with the function and purpose of the office, and (3) misusing the office for an improper purpose or for personal gain. Trump's attempt to extort the newly elected President of Ukraine, Volodymyr Zelensky, to dig up dirt on Joe Biden, a political opponent, and telling him that U.S. Attorney General William Barr and Rudy Giuliani (Trump's personal attorney) would be contacting him about the matter, qualifies in all three areas.


Another example of misusing the office for an improper purpose or for personal gain is Trump's continuing violation of the Emoluments Clause of the Constitution. He demonstrated his disdain for the Constitution when he directed that his own Doral Golf Resort be used as the site for the 2020 G-7 Summit. A bipartisan backlash ultimately dissuaded him from this, after which he called the Emoluments Clause, "phony." 


And then there's what we learned from the Mueller Report.

All told, an embarrassment of riches.

But Watson thinks it's all a political trick designed to help Democrats win the 2020 Election. There's actually a pretty good argument that the impeachment inquiry could hurt Democrats leading up to 2020. Some Democratic Congressional Members in swing states still feel that way. But as it turns out, Democrats have more respect for the rule of law, and the Constitution, than do Republicans. And certainly more than Frank Watson.

In Defense of Jonathan Franzen

Jonathan Franzen’s September 8, 2019 opinion piece in the New Yorker has raised hackles all across the expert — layperson spectrum. You’ve gotta hand it to the guy, he has wide ‘unappeal.’ But there were some people who resonated with what Franzen said. I was one of them.

My take away from the Franzen article was that in his opinion, our chances of limiting warming to ~2C are realistically nil, in which case, according to Franzen,

“If you’re younger than sixty, you have a good chance of witnessing the radical destabilization of life on earth—massive crop failures, apocalyptic fires, imploding economies, epic flooding, hundreds of millions of refugees fleeing regions made uninhabitable by extreme heat or permanent drought. If you’re under thirty, you’re all but guaranteed to witness it.”

If you disagree that we have no chance of limiting warming to ~2C, tell me why.

All told, our reliance on fossil fuels has actually increased since 1990, to the point where we are, at last approximation, adding almost 40 billion tons to the atmosphere every year. So, about 8 billion [molecularized] African Elephants a year.

Now while it’s true that these individual elephant molecules of carbon dioxide have a mean residence in the atmosphere of only ~5 years, when they leave they’re just replaced by other CO2 molecules, so that the lifetime of that extra 8 billion elephants of CO2 is on the order of centuries. And we’re still pumping all those elephants into the atmosphere!

The concentration of CO2 in the atmosphere is increasing every year at an accelerating rate having now reached 415 ppm — a level unprecedented in human history. According to a survey done by The Guardian at a Copenhagen science conference in 2009, 85% of the 1756 experts asked said they didn’t believe holding global warming to 2C would be successful. So, nothing Franzen said about this is really controversial, is it?

What’s controversial about Franzen’s opinion is his calling out hopefulness. Franzen said, “The goal [2c] has been clear for thirty years, and despite earnest efforts we’ve made essentially no progress toward reaching it.” That’s correct, as I stipulate above. Franzen says we’re going to experience,

• “massive crop failures,
• apocalyptic fires,
• imploding economies,
• epic flooding,
• hundreds of millions of fleeing refugees,”

And he hasn’t even mentioned,

• ocean acidification,
• the bleaching of coral reefs,
• the die-off of anadromous salmon, and other species extinction,
• the intensification of hurricanes,
• the forced shutdown of nuclear reactors because their cooling ponds were too hot to effectively cool the reactors,
• the fact that today’s babies will, by the time they are adults, live on a planet without an Arctic,
• and that, according the NIH, "fossil fuel combustion is the most significant threat to children’s health, now and in the future, including impairment of cognitive and behavioral development, respiratory illness, and other chronic diseases."

USS Connecticut breaks though the ice in 2018. The US Navy has been recording the decline in Arctic sea ice thickness for decades, data that was at first secret, but has since been made public and proven useful to scientists. Official U.S. Navy Imagery on VisualHunt

Franzen is not saying give up hope and do nothing. He’s saying reorder our priorities. Fight your battles locally [and isn’t that what we here in Benton County are doing?]. Tackle specific problems for which we have a realistic chance of success. Celebrate those successes. In fact, what Franzen is saying is that by doing what we can, where we can, when we can, we can remain hopeful.

Jonathan Franzen is not a “doomsayer” as Bina Venkataraman says, he’s a truth teller. His article isn’t about defeatism, it’s about realism. Franzen is realistic about the inexorable global temperature rise, the inevitable crossing of the 2C boundary, and the consequences of that dubious achievement. And also about the inevitability of human organizations, agencies, governments, and movements failing to initiate "draconian conservation measures, shut down much of its energy and transportation infrastructure, and completely retool its economy." I'm not a climate scientist. I'm a behavioral scientist (PhD, Texas Tech, '74). I agree with Franzen.

Human behavior is shaped by its consequences. The more immediate the consequences, the more effective the shaping. The more distant and disconnected the consequences, the less effective the shaping (see B.F. Skinner on operant conditioning).

Moreover, entrenched interests have been unswerving in their efforts to cast doubt on the science of climate change, and when failing that, to slow the development and/or implementation of technology that threatens their bottom line. For example, according to Politico, oil-backed groups are countering utilities' plans to expand electric vehicle infrastructure, specifically charging stations, with regulatory and lobbying campaigns against the proposals in at least 10 states so far. 

When Kate Marvel in her September 11, 2019 SA “Shut Up, Franzen,” article says, “When we pass the 2C limit, as we certainly will without immediate action, we will receive no warning sign. Things will carry on much as before,” I have to ask, where and for how long has she been hibernating?

An aerial view of devastation after Hurricane Dorian hit the Abaco Islands in the Bahamas. Photo: Reuters

Before ending my defense of Franzen let me take him (and many others, for that matter) to task for talking in terms of “saving the planet” when discussing the climate crisis. As Barry Lopez has written in his autobiographical novel, “Horizon,” “In separating the fate of the human world from that of the nonhuman world…we come face-to-face with a biological reality…nature will be fine without us.”

When we consider what Lopez has called, “the throttled Earth — the scalped, the mined, the industrially farmed, the drilled, polluted, and suctioned land,” it isn’t the planet we are hoping to save, it’s us, the human race.
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Having Read the Mueller Report

I had three questions regarding the Mueller investigation into Russian interference in the United States 2016 Election:

1. What was the extent of Russian interference in the election, and did it change the outcome?
2. Did the Trump Campaign “collude” with Russia in their interference in the election? 
3. Was Donald Trump guilty of obstruction of justice with regard to the investigation?

Having now read the Mueller Report, these are my answers.

Russian Interference

The Mueller investigation uncovered “sweeping and systematic” operations along multiple  lines:

• a sophisticated social media campaign that involved every major social media entity and reached tens of millions of U.S. persons and attracted hundreds of thousands of followers

• the staging of political rallies inside the United States organized by Russian operatives posing as American grassroots activists who worked through the aforementioned social media accounts

• the theft through “hacking” of private documents, emails, and other data from the DNC and the Hillary Clinton Campaign and individuals associated with it

• the theft through “hacking” of data and records from individuals and entities involved in the administration of elections (state boards of election, secretaries of state, county governments)

• the targeting of private technology firms responsible for manufacturing and administering election-related software and hardware, such as voter registration software and electronic polling stations

The Mueller investigation did not attempt to gauge the impact of Russian interference on the election, nor did they pursue a deeper investigation into the intrusion of servers administered by targeted states, understanding that this further investigation was being undertaken by the FBI, Homeland Security, and state election offices.

So, the answers to our first question are:

• Russian interference in the 2016 election was a massive, well-planned and executed, information operation that reached tens of millions of U.S. voters, perhaps as many as 126 million.

• We don’t know from the Mueller Report whether the Russian operation changed the outcome of the election. Trump won the Presidency with razor thin margins in Michigan (.03%), Wisconsin (1%), Pennsylvania (1.2%), and Florida (1.3%). So, it’s possible.

• According to the Washington Post, 107,000 votes in three states — PA, MI, WI — swung the election for Trump. So, it’s possible.

• Mueller didn’t further investigate the intrusion of election hardware or software. So it’s possible.

Collusion

Rudy Giuliani was correct, if misleading, when he said “collusion is not a crime.” The Mueller Report would ultimately clear up the confusion, but was preempted by Attorney General William Barr’s “summary” of the report. The 4-page summary was released days before the report itself, and was followed by Barr’s curious press conference the morning of the day the redacted report was to be released. In his statement, Barr repeated multiple times that there was no “collusion,” and insisted that Trump had “fully cooperated with the special counsel’s investigation.”

The Mueller Report pointed out that the Special Council evaluated potential criminal conduct by the Trump Campaign according to conspiracy law (18 U.S.C § 371), because “collusion” per se is not found in U.S. Code nor in federal criminal law (p.181). The burden of proof for conspiracy used by the Special Council was that the Trump Campaign and the Russian Government had an agreement, tacit or express, on the Russian’s election interference, and more, that the parties were taking actions informed by or responsive to the other’s actions or interests.

The Mueller investigation identified innumerable links between the Trump Campaign and Russians possibly tied to the Russian Government (e.g., “cutouts”). People interviewed by the Special Council sometimes provided information that was false or incomplete, while others deleted relevant communications, used encrypted communications, or auto-delete features (p.10).

Ultimately, the Special Counsel concluded that there was insufficient evidence to establish that members of the Trump Campaign conspired with the Russian Government in its election interference activities.

As for Mr. Trump’s cooperation with the investigation, that matter is addressed in Volume II of the report addressing obstruction of justice, and is covered here on Page 3.

There have been and will continue to be fierce disagreement with Robert Mueller’s finding in the matter of collusion. The Report confirms what the media was reporting about the many meetings between Trump Campaign officials and Russians, and adds others of which we were unaware. Furthermore, it confirms what Michael Cohen testified to regarding Trump Tower negotiations — they were going on until at least 2016 — giving Trump a substantial reason to cooperate with Russian interests (p.67). Nonetheless, it’s important to understand that Mueller was not charged with making a value judgment about the moral or ethical behavior of Donald Trump, or even to characterize it. He was charged with making a decision to prosecute or decline to prosecute. He did that.

What those unsatisfied with the results of Mueller’s investigation should consider is that Congress is not constrained by the jurisdictions or legal code under which Mueller operated, and can decide that even the appearance of conspiring with a U.S adversary, along with the appearance of a conflict of interest, is sufficient to hold the President accountable in some other manner than criminal prosecution.


Obstruction

Volume II of the Mueller Report deals with the question of obstruction of justice and covers the final 182 pages of the report. The Special Council had jurisdiction to consider: (1) whether the President had obstructed justice in connection with the Russian-interference related investigations; and (2) whether the President acted to obstruct the Mueller investigation itself. In neither case did the Special Counsel exonerate the President — far from it.

A quick review of the Table of Contents for Volume II provides the reader with a sense of the depth and breadth of the President’s obstructive actions, from refusing to acknowledge Russian interference in the 2016 election, to attempting to fire the Special Counsel.

A somewhat amusing anecdote in the Report about the President’s obstructive actions described Trump’s directing Attorney General Jeff Sessions to inform Mueller that he only had jurisdiction to investigate Russian meddling for “future elections.” Sessions, who at the time had recused himself from dealing with the investigation, refused. (p.97)

In his press conference on April 18, Attorney General William Barr stated that President Trump, “fully cooperated with the Special Counsel’s investigation.” The Report shows this to be untrue in many respects, but most especially in the President’s refusal to be interviewed, despite the Office of the Special Council trying for “more than a year” to obtain the President’s cooperation, and conveying to the President’s counsel that, “an interview with the President is vital to our investigation” (Appendix C).

The President finally agreed to respond to certain written questions, not including obstruction. In doing so, Trump answered 30 times with some form of memory failure. In other cases, the President’s answers were “incomplete or imprecise” (Appendix C). The Special Council viewed the President’s answers as inadequate, and considered issuing a subpoena for his testimony. In the end however, Mueller felt he had sufficient evidence for the Report, and did not want to delay submission pending the result of long litigation (Appendix C).

Given the evidence collected by the Mueller investigation, it may be surprising that the Special Council did not charge Trump with obstruction of justice, but he didn’t. Instead the Report states that, “while this report does not conclude the President committed a crime, it also does not exonerate him”(p.2).

The reason the Special Council chose not to charge the President revolves around an opinion issued by the Office of Legal Counsel (OLC), a part of the Department of Justice, and the concept of “fairness.” The OLC opinion states that, "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions" in violation of "the constitutional separation of powers.”

Mueller chose to accept the OLC opinion and so not prosecute the President. Because he would not prosecute, the President if found guilty of criminal conduct with regard to obstruction would not be afforded the opportunity to defend himself in the ordinary way — through a speedy and public trial. See the Introduction to Volume II, pages 1 & 2 for a more complete summary of the Special Council’s reasoning.

By early Tuesday evening, May 7, more than 720 former federal prosecutors who worked in Democratic and Republican administrations had signed a letter asserting that if Trump were not the president, he would have been charged with obstructing justice based on Special Counsel Robert Mueller's findings.

Finally, it is crucial to understand that the Special Council has provided Congress the means to hold the President accountable for his actions and makes it clear under the section on Statutory and Constitutional Defenses that, “Congress has the authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice” (p. 8)

The Special Counsel goes on to say, “The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law” (p. 8).

The People Have a Right to Know

By Jon Phillips

Special Counsel Robert Mueller

I seem to recall that the Starr Report was sent in full to the Government Printing Office and distributed without limits to the public. The reason was because the content was primarily just embarrassing to the Clintons and their Staff and it was the evidence supporting a charge of perjury. President Clinton lied under oath about personally embarrassing things. Apart from his lying, there would have been no case against him since both he and Monica Lewinsky were consenting adults.

An employee of a private company might be fired for what Clinton did since its contrary to published corporate values. Monica Lewinsky could have sued for sexual harassment, but that’s a civil offense and not a criminal offense. It’s not clear that she could have won such a claim in any event given her complicit behavior. She thought she was in love.

Plainly, Bill’s behavior was quite distasteful and entirely inappropriate for a person in a position of power and high national trust. So my view is that if the Starr Report was published when the topic of it was about scandals of a sexually prurient personal nature, that the President was too embarrassed to admit, then the Mueller Report should be sent directly to the House Intelligence Committee (they have very high clearances) and where necessary, redacted to protect classified information, including sources and methods.

I think that evidence of high crimes and misdemeanors could be made plain, presuming they exist, without compromising national security. The nature of the potential crimes of President Trump and his Administration are grave and go directly to the security of the nation. The people have a right to know about such things in general. Clinton was drug through the mud over his sexual promiscuity, not because he endangered the nation through cooperation with a foreign power. That the public would not get to see sufficient evidence of any criminal activity of Trump and members of his Administration, given the nature of the alleged crimes, would be entirely unacceptable and a miscarriage of justice.

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Jon Phillipshas served as a Senior Nuclear Technology Expert at the International Atomic Energy Agency and Director, Sustainable Nuclear Power Initiative at Pacific Northwest National Laboratory. The opinions expressed here are his own.