Saturday, January 25, 2020

Executive Privilege And Impeachment


Over the course of the impeachment process, Trump supporters have argued that the White House is protected from responding to congressional subpoenas by executive privilege. The argument goes that, even if the president has nothing to hide by submitting the evidence subpoenaed by Congress, he is defending the executive’s constitutional independence from Congress.

As one commenter responded on my article from Friday, “He is defending the use of executive privilege by the executive branch so as not to place all the communications of the executive branch under the control of a random radical faction of the House that either party could exploit. There are legal and separation of powers issues at play that are bigger than Trump but the Never Trumpers can't see past their disdain for the man so they assume the worst motivations to explain everything he does.”

If that’s the case, he’s doing it wrong.

Many Trump supporters have accused me of being against executive privilege, arguing that if you aren’t for the absolute immunity claimed by the Trump Administration then you must be against any executive privilege at all. This is a logical fallacy. There is quite a lot of middle ground between unlimited congressional oversight and unlimited executive privilege. Since we live in a constitutional republic, we should ask what the Constitution and judicial precedent say about the issue.

Executive privilege isn’t specifically mentioned in the Constitution but its history in the United States goes all the way back to George Washington. One of the earliest incidents in our history that relate to the issue was in 1796 when, as legal historian Michael Dorf wrote, “President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”

The first court case involving executive privilege dates back to 1807 when Aaron Burr was being tried for treason. Burr’s counsel subpoenaed a letter from Thomas Jefferson, who was president at the time. Presidential claimed, as Trump’s lawyers do today, that the president was exempt from subpoenas requesting specific documents. Chief Justice John Marshall shot down this argument, ruling that presidents are not immune to subpoenas and that even national security was not grounds for refusal to comply. If documents were too sensitive to be made public, Marshall ruled, the court could keep them confidential.

In 1974, the Supreme Court ruled again on executive privilege in United States v. Nixon. As with Trump, Nixon’s articles of impeachment, which were approved by House committee but never reached a full vote, also cited obstruction alleging that the president “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives….” The Supreme Court never had the chance to rule on that specific question due to Nixon’s resignation, but it did rule on his claim of executive privilege in withholding audiotapes and written records from the grand jury convened by the Watergate special prosecutor.

In the decision, the Court agreed to “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," saying, "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."

Nevertheless, the Supreme Court ruled against Nixon, holding, as Dorf explains, that “the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution.” Nixon released the tapes and resigned amid the furor five days later.

President Clinton also attempted to use executive privilege to shield himself from being called to testify in the Monica Lewinsky investigation. A federal judge ruled in 1998 that executive privilege did not shield the president or his aides from subpoenas, although some of the testimony and evidence could be shielded from public view. Clinton ultimately testified under oath in a videotaped deposition.

In another blow to Donald Trump’s executive privilege claims, Dorf notes that “no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government.” Therefore, Trump’s communications with Rudy Giuliani, Lev Parnas, and others would not be covered by executive privilege claims.

Since Giuliani was Trump’s personal attorney, the president could attempt to claim attorney-client privilege, but there are limits here as well. Exceptions to attorney-client privilege include conspiring to commit crimes or acts of fraud. Since Lev Parnas and three other Giuliani associates were indicted for the criminal acts of violating campaign finance laws and advancing “the political interests of at least one foreign official – a Ukrainian government official who sought the dismissal of the US ambassador to Ukraine” while Giuliani was on a shadow diplomacy mission for the president in Ukraine, Trump’s claim of attorney-client privilege may be on shaky ground as well. Although currently unindicted, Giuliani is reportedly under investigation by the US Attorney for the Southern District of New York for campaign finance and lobbying violations.

If the president wanted to fight the congressional subpoenas, he was within his rights to do so even though he would probably lose. Unfortunately, rather than fighting the subpoenas, he chose to instruct his subordinates to ignore them. Subpoenas can be fought but are ignored at the witness’s peril. Legally, the way to fight a subpoena is to file a motion to quash it, i.e. to ask a judge to remove it. That is not what the Trump Administration did. In fact, the White House started ignoring subpoenas back in April 2019, well before the impeachment began.

When the Administration ordered its staffers to ignore legal and constitutional congressional subpoenas, it became a criminal matter of obstruction. For those who have requested a law that Trump broke (even though criminal activity is not required for impeachment under the original meaning of “high crimes and misdemeanors”), the Congressional Research Service cited 18 U.S.C. 1505 in its 2010 report on “Obstruction of Congress.” The statute applies to “any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.” Additionally, 18 U.S.C. 1512 also prohibits witness tampering. Under its statutory power to punish contempt, Congress has the authority to levy fines and even imprison witnesses who ignore subpoenas.

An additional argument made by Trump supporters is that House Democrats should have pursued the legal case to compel the Administration to produce witnesses and evidence. While I do agree that this would have been a smart move politically, no law or congressional guideline mandates that Congress must sue the president in an attempt to force him to do his duty before impeaching him. While the Democrats could have gone through the courts and bolstered the already strong case against Donald Trump, the proceedings were not rendered illegitimate by their decision not to do so.

Historical precedent tells us that executive privilege exists but that it cannot be used as a shield to misconduct in the Oval Office. Executive privilege is not an absolute right to ignore Congress and get out of jail free. While ignoring the subpoenas may have temporarily protected the president from embarrassing revelations about his abuses of power, his obstruction actually sped up his impeachment process in the end. Now the embarrassing information about his Ukrainian activities is coming out anyway in a slow drip that may continue through the election.

While the president is not going to be removed from office, it looks as though defying Congress turned out to be a lose-lose proposition. Once again, the maxim that that best way to handle a scandal is to get out in front of it rather than engaging in a coverup seems to be correct.

Originally published on The Resurgent

Friday, January 24, 2020

Democrats Struggle To Find Fourth GOP Vote To Call Impeachment Witnesses



It was always understood that there would be little chance of removing Donald Trump from office through impeachment due to the requirement for a mass defection of Republican senators to get to the 67 votes required by the Constitution. Any victory in the Senate would be a moral one in which a small number of Republicans might join with Democrats to at least call more witnesses and get the truth about Trump’s actions out to the American people. Such a political victory would rely upon at least four Senate Republicans crossing the aisle to form a temporary anti-Trump coalition of 51 votes. A week into the Senate trial of the president, we still don’t know what the outcome of this aspect of impeachment will be.
Earlier this week, the Senate voted to delay the decision on whether to call witnesses to testify during the trial. At this point, it looks as though Democrats may be able to get three Republicans to join them in their quest, but the fourth may be a bridge too far.
Three Republicans have indicated that they are open to calling witnesses. These senators include Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah.
Axios reports that several senators were targeted to be the fourth vote but that so far none has committed. The possibles include Lamar Alexander of Tennessee, Cory Gardner of Colorado, Thom Tillis of North Carolina and Joni Ernst of Iowa. The Hill adds Martha McSally of Arizona, Jerry Moran of Kansas, and Rob Portman of Ohio to the list.
Already Tillis has planted a flag on Trump’s side, calling the impeachment a “sham” and telling Fox News, “I don’t want to spend a lot of time doing what I expected the House to do. You’d think if there was any truth to it, they would have spent the time in the House to actually bring it forward”
The North Carolina senator is facing a tough re-election fight and seems to be concentrating on firming up the Republican base in a state where Trump’s approval rating is at 48 percent, a net of zero. There has been no recent polling on the Senate race but a poll from last spring showed Tillis trailing likely Democratic nominee Erica Smith.
Sen. McSally’s recent attack on a CNN reporter likely indicates which side she is on as well. McSally is another very vulnerable Republican as she prepares to face Mark Kelly in this year’s senate race. The Arizona Republican is already trailing in a number of recent polls and she can ill afford to lose support from the Republican base by angering Trump.
Corey Gardner and Joni Ernst might be more likely targets. Trump’s approval is 18 points underwater in Colorado and nine points in the negative in Iowa. Both senators are up for re-election this year as well and Gardner is already trailing in preliminary polling by double-digit margins. There are no public polls of the Iowa senate race so far.
But vulnerable Republicans may be between a rock and a hard place. CBS News reports that Senate Republicans were warned, “Vote against the president and your head will be on a pike.” Republican leadership seems to be gambling with their Senate majority that voters will not hold swing state incumbents accountable for conducting a show trial and speedy acquittal.
Portman in bellwether Ohio may be a good bet for the fourth vote. Portman told the Dayton Daily News recently that he thinks the trial “should be a fair process” and that “we should hear from both sides.”
Even if the Portman, Gardner, and Ernst can be kept on the reservation, there is another possibility. Lamar Alexander of Tennessee is not running for re-election and might be more insulated from pressure. The 79-year-old is unlikely to have his eye on higher office. Still, Alexander is close to Senate leaders and called impeachment “a mistake” back in October. A lot of new evidence has come forth since then, however.
“He is very well-respected by the entire conference and is close to Mitch McConnell. I’ve found Lamar to be one of the most effective members of the entire Senate,” Sen. Collins said of Alexander in Politico. “I don’t know what his position will be. I suspect that he’s waiting until he’s heard the case presented and the questions answered for the senators. And that’s a very logical position to take.”
An added complication is the possibility that Democrats might lose votes from their own caucus. Red-state Democrats such as West Virginia’s Joe Manchin or Alabama’s Doug Jones may well defect and make the math even more difficult.
 
If no fourth Republican comes forward, then votes on whether to call witnesses could end in a 50-50 tie. In that case, it would be up to Chief Justice John Roberts to decide the issue of witnesses. Roberts has given no indication of how he would vote, but NBC News speculates that judges often rule in favor of allowing relevant testimony. The fact that Roberts would be going against his party’s wishes and seems to place a high priority on not undermining the Supreme Court’s authority and image makes the situation more complicated, however.
Meanwhile, Republicans are still unable to explain why, if the president is not guilty of the impeachment allegations against him, they are so staunchly opposed to hearing witnesses who could offer exonerating evidence. On the contrary, Trump’s defenders are already making plans to stonewall testimony in the event that the Senate does vote to call witnesses such as former National Security Advisor John Bolton, Chief of Staff Mick Mulvaney, or Secretary of State Mike Pompeo.
Republicans say that the White House would probably block the testimony on grounds of executive privilege and national security. The resulting court battle would lead to a long, drawn-out battle that might not be resolved before the election.
That’s a lot of trouble to go to stonewall testimony about a “perfect phone call” from witnesses that the president has said he would “love” to hear.

Originally published on The Resurgent

Wednesday, January 22, 2020

Bernie Sanders has been surging in the polls in recent weeks. The Vermont senator’s newfound success is apparently enough that it attracted a high-profile attack from the previous failed Democratic nominee, Hillary Clinton.
A new CNN poll out this morning shows a big jump for Sanders over the previous Real Clear Politics average. The new poll gives Sanders a 27 percent share of the Democratic primary vote, which puts him three points ahead of Joe Biden at 24. Sanders has been trending upward since mid-December, but the new poll is a sharp jump from his polling average of 21 percent.
Large, sudden movements in polling often represent inaccurate outliers. Further polling is necessary to determine whether Sanders’ newfound lead is real or illusory.
Regardless, Sanders’ rise in the polls has led other Democrats to focus their attacks on him. The Vermonter traded sharp barbs with Massachusetts senator and fellow candidate Elizabeth Warren last month. The Warren campaign accused Bernie of saying that a woman couldn’t win the election, an accusation that Bernie denied, and the two had an awkward moment after last month’s debate in which each accused the other of lying while they were still wearing hot mics.
Now Hillary Clinton is entering the fray with a statement in a documentary film. Per The Hollywood Reporter, Clinton says in the film, “He was in Congress for years. He had one senator support him. Nobody likes him, nobody wants to work with him, he got nothing done, He was a career politician. It’s all just baloney and I feel so bad that people got sucked into it.”
“It’s not only him, it’s the culture around him,” Clinton continued. “It’s his leadership team. It’s his prominent supporters. It’s his online Bernie Bros and their relentless attacks on lots of his competitors, particularly the women.”
Clinton’s attack aims squarely at Bernie’s perceived strength of being an outsider with revolutionary ideas. The #MeToo-style accusation that Sanders is hostile to women would be lethal to most candidates in the progressive party as well.
The problem with Hillary’s plan of attack is that the New Yorker is one of the most unpopular people in politics. Her unpopularity within the Democratic Party almost allowed Sanders to seize the nomination in 2016 and spurred thousands of Bernie Bros to cross the aisles and vote for Trump or stay home on Election Day. In 2020, it’s entirely possible that Hillary’s condemnation of Bernie will galvanize his support.
It’s also possible that Bernie is merely the newest flavor-of-the-month in the Democratic Party. Democratic voters have already considered and then rejected a number of non-Biden candidates, including Kamala Harris, Elizabeth Warren, and Pete Buttigieg. Sanders may simply be the next alternative to be examined and then tossed aside.
If this is the case, the Democratic consideration of Bernie comes at an opportune time for Sanders. With the Iowa caucuses on February 3, less than two weeks away, Bernie’s support may be cresting at exactly the right time.
Current polling averages in Iowa show Biden in the lead with 21 percent, but three other candidates, Sanders, Buttigieg, and Warren, also meet the 15 percent threshold to win delegates. In a caucus state, Bernie’s devoted supporters may give him an advantage that could propel him to a surprise victory, although recent polls have shown him slipping there.
Sanders also has a slim lead in the polling average for New Hampshire’s primary. where he currently holds an advantage of about one point over Joe Biden. Hailing from neighboring Vermont, Sanders is the favorite son in the New Hampshire race and needs to do well there to remain viable. The New Hampshire primary is scheduled for February 11.
Sanders has enjoyed a brief surge in the polls. We will find out soon whether it is a real increase or whether Bernie’s popularity will be a flash in the pan. If the senator doesn’t perform well in Iowa and New Hampshire, it is difficult to see a path to the nomination even though he has money to stay in the race to the end.

Originally published on the Resurgent

Monday, January 20, 2020

Trump Outraises Individual Dems But Is Behind the Pack


CNBC reports that President Trump’s 2019 fundraising haul far outpaces that of his Democratic rivals. The flip side, however, is that the combined group of Democratic hopefuls has more than tripled Trump’s take.
By the end of 2019, the Trump campaign had more than $100 million on hand after raising more than $46 million in the fourth quarter. The nearest Democratic contender was Bernie Sanders, who raked in $34.5 million. Joe Biden, the Democratic frontrunner, raised only $22.7 million. That’s the good news for Team Trump.
The bad news for Mr. Trump is that when all 14 Democrats are taken into account, the Trump campaign was outraised by $515 million to $143 million, 28 percent of the amount raised by the Democrats. If only individual contributions are considered, the president lagged the Democrats by $76 million to $471 million, 16 percent of what Democrats raised.
Trump’s fundraising gap is the worst of any recent incumbent. In 2011, President Obama raised 92 percent of the amount raised by his Republican rivals while George W. Bush raised more than his Democratic challengers in 2003.
“The field is trouncing Trump in fundraising and that is unprecedented,” Sarah Bryner, director of research and strategy at the Center for Responsive Politics, told CNBC.
The fact that Trump is running virtually unopposed in the Republican primary means that the president will start the general election campaign with a cash advantage over his Democratic challenger. The Democrats are earning smaller amounts and will have higher burn rates through the first half of the year as they wage primary battles against each other.
The big question is how effective the eventual Democratic nominee will be at uniting the party and rallying fundraisers to support his or her campaign. If the Democrats can keep the rate of contributions high through November, they may be able to drown out Trump’s messaging in the closing days of the campaign with a deluge of ads and outreach to voters.


Originally published on The Resurgent

Impeachment Update: A Dem Says ‘Fine’ To Hunter Biden Testimony While GOP Considers ‘Kill Switch’


As the Senate impeachment trial of Donald Trump gets underway, senators are establishing ground rules for the proceeding. As we’ve reported before, it now seems likely that the Senate will hear witnesses and at least one Democratic senator is agreeable to the idea that Hunter Biden could be called to testify. At the same time, Republicans are floating the idea of a way to rapidly end the trial with a dismissal vote if things get out of hand.

On CNN’s “State of the Union,” Sen. Sherrod Brown (D-Ohio) said yesterday that he thought it would be “fine” if Hunter Biden was called to testify before the Senate. The son of Joe Biden, Hunter’s association with Ukrainian energy company Burisma has been called unethical by Republicans and is at the root of President Trump’s decision to freeze military aid to Ukraine.

"We take the position that we want to hear from the witnesses. I don't know what Hunter Biden has to do with the phone call the President made," Senator Brown said. "The point is we need witnesses, we need to know who they are with the right to call witnesses, additional witnesses later. But I don't understand how you come to the American public, make the case that this is a real trial, if there are no witnesses and there is no new evidence."

On Fox News, Senator Ted Cruz (R-Texas) said that the Senate guidelines would include reciprocity of witnesses.

“What does that mean?” Cruz asked rhetorically. “It means if the prosecution gets a witness, the defense gets a witness. If the prosecution gets two, the defense gets two. That means if the prosecution gets to call John Bolton, then the president gets to call Hunter Biden.”

There is so far no evidence of any wrongdoing on the part of either Hunter or Joe Biden, but Republicans were critical of the House decision not to allow the Bidens to be called as witnesses during impeachment hearings in the lower body.

In other impeachment news, Fox reports that Majority Leader Mitch McConnell is close to finalizing a rule that would implement a “kill switch” for the impeachment proceedings. The provision would act as a “safety valve” to prevent the trial from dragging on into the primary election season.

Sen. Josh Hawley (R-Mo.) told Axios that the resolution would “give the president's team the option to either move to judgment or to move to dismiss at a meaningful time..." Hawley said that he would be "very, very surprised” if the organizing resolution for the trial did not include such a provision.

The difficulty for Republicans is that even if the rules for the trial allow the president’s supporters to move for a summary dismissal, so far there is not enough support among Republican senators for such a vote to pass. As Resurgent detailed last week, the Republican leadership has acknowledged that there are currently not enough votes to dismiss the matter without a full hearing.

The Senate is expected to pass an organizing resolution on Tuesday. The text of the resolution has not been released but CNN reports that it is expected to delay the issue of whether witnesses will be called until after opening arguments have been made. At a later point, senators will have an opportunity to vote on whether witnesses should be called. Polling has indicated broad support for calling more witnesses during the Senate trial.

The two Republican initiatives seem at odds with each other. The threat to call extraneous witnesses such as Hunter Biden would prolong the trial without offering insight into what Rudy Giuliani’s introductory letter to President Zelensky referred to as a private mission rather than one that involved Donald Trump’s role as president.

Republicans could accomplish their stated goal of keeping the trail brief by limiting witnesses to people who are material to the charges against President Trump, people who were involved with the phone call and the subsequent aid freeze. In that vein, one would expect Trump’s defense team to call witnesses who could exonerate the president on the charges of abuse of power and obstruction such as Mick Mulvaney, John Bolton, Mike Pompeo, and Mike Pence.

I wonder why they won’t.

Originally published on The Resurgent

Sunday, January 19, 2020

Voting Strategies For Trump Critics

The first caucuses and primaries are fasting approaching and that means it is almost decision time. The “decision” aspect of the upcoming primary season is especially difficult if you are conservative who doesn’t support President Trump. Maybe you opposed Trump in 2016. Maybe you are a past Trump supporter who now finds that yourself unable to vote for a second term for the president due to any of a number of reasons. Regardless, the question for many conservatives is how to vote if you don’t want to cast a vote for Donald Trump and aren’t crazy about any of the Democrats either.

The question is really two-fold. The first part of the decision is how to use your primary vote and the second part is the ultimate decision on how to handle the general election next November. Where you live may influence your choice in both cases.

Before I go any further, let me state plainly that the opinions in this article are my own. Most of my colleagues here at Resurgent have indicated that they plan to support the president’s re-election, some wholeheartedly and some with reservations. In my case, I opposed Trump in 2016 and then tried to give him the benefit of the doubt after he took office, hoping, as many others did, that he would rise to the occasion. In the end, however, the only significant way that Trump has changed since 2016 is to become a worse candidate. Needless to say, I won’t be voting Trump and had hoped to vote for a Republican alternative.

I live in Georgia, however, where the state Republican Party, in its infinite wisdom, decided not to allow challengers to Trump on the primary ballot. Even if you have other Republicans on your presidential primary ballot, however, you may not be happy with the alternatives or you might simply see it as a futile exercise to vote for a different Republican when Donald Trump has 80-90 percent support in the GOP.

In my case, there is little reason for me not to cross over and vote Democrat in Georgia’s open primary. Rather than submit a write-in vote against Trump, I can influence the Democratic primary by taking William F. Buckley’s advice and voting for the most conservative candidate who can win. In the Democratic primary, there won’t be any real conservatives (a statement that also applies to the Republican presidential primary in many states this year), but they are not all equally liberal. Joe Biden is not Bernie Sanders and Amy Klobuchar is not Elizabeth Warren. There are several quizzes on the internet, such as this one from the Washington Post, that match your beliefs with candidates. A conservative won’t find a perfect match among Democrats but you can see which candidates are closest to your views.

Voters in states where Republican challengers are on the ballot face a more difficult choice. They must decide whether to vote in their Republican primary and register opposition to Trump or cross the aisle and vote for a moderate Democrat.

If you are considering changing parties in the primary, you should check with your local election officials. Not all states have open primaries that allow you to decide at the last minute. Some states require you to register as a party member to vote in the primary or caucus. Those deadlines for registering are rapidly approaching and may have already passed in some cases. You can find an online roundup of voter registration data here but check with your state and local officials to be sure.

After the primaries are decided, it will be time for the big decision. Who will I vote for in the general election? At this point, I don’t know.

Barring a miracle, Donald Trump will be the Republican candidate but, we don’t yet know who the Democratic candidate will be. The obvious choice will be between Trump and the Democrat. Some have decided that any Democrat will be preferable to Donald Trump, but I am not there yet. There are Democrats that I would consider holding my nose and voting for and there are Democrats that I would not cast a ballot for any more than I will vote for Trump.

As a constitutional conservative/libertarian, it is painfully obvious that I’m not going to agree with either party nominee on policy. With Trump and the Republicans, I may like about half the policy but I’m not going to like the corruption and abuses of power. With Democrats, I’m not going to like much, if any, policy but I can hold out hope that they will at least be honest and law-abiding. I could see myself supporting such a unifying, caretaker Democrat but not a radical revolutionary Democrat.

The matter may become more complicated. Rep. Justin Amash, who I also agree with about half the time, is considering a third-party run as a Libertarian. I could also see myself supporting Amash, particularly if a Democrat from the progressive wing of the party is nominated.

An additional consideration is whether to vote for down-ticket Republicans. Few, if any, Republicans have fulfilled their 2016 promises to hold Trump accountable. Are they deserving of re-election? If you base the answer to that question on how well they held Trump’s feet to the fire then the answer is almost invariably negative.

One strategy that I’m considering is to delay a decision on whether to support my local Republican congressman and senator until just before the election. If Trump looks likely to win re-election, I would be likely to support the Democrats, who have been willing to hold the president accountable where Republicans have not. If the Democrats are favored to win the White House, I would lean Republican. As an independent voter with a healthy distaste for both parties, my interests may be best fulfilled by preserving the stalemate between the executive and legislative branches.

Before you obsess too much over how to vote in the presidential election, keep in mind that your vote will almost certainly not make a difference. Given the numbers of voters in your state and the structure of the race with 50 states and the Electoral College to consider, your vote for president really doesn’t mean much. The 2016 election hinged on less than 100,000 votes confined to a handful of swing states.

In my home state of Georgia, the state is almost certain to vote for Trump no matter what I do, even though the president’s approval here is at -2 in the latest Morning Consult poll. If the election is ugly enough for Trump that the outcome in Georgia is in doubt, the outcome will have already been decided in the swing states. As a result, I feel no pressure to pull the lever either way. If you’re an independent voter in a swing state, the choice will be tougher.

For most of us, however, our biggest impact will be in congressional and local elections. In the presidential election, we are one vote out of 128 million before being diluted by the Electoral College. However, I am one out of 3.9 million voters in my state and one out of 292,000 in my congressional district who actually cast ballots in 2018. It doesn’t take a genius to see in which elections your vote carries more weight.

Do your research on the candidates and then, as Ted Cruz said several years ago, “Vote your conscience.”


Originally published on The Resurgent

Saturday, January 18, 2020

Watching The Movies: 1917


2019 was a year of good movies, but I suspect that 1917, which saw limited release on Christmas Day, will be one of the standouts.

There really haven’t been that many WWI movies. The Great War has been overshadowed by its mid-century sequel so much that I could only think of Flyboys (2006), All Quiet On The Western Front (1979), and The Young Indiana Jone Chronicles (1992). I suppose we could add the 2017 reboot of Wonder Woman to the list as well if we want to move from the war movie genre to superhero flicks.

1917 is definitely a war movie, however. The story centers around an urgent mission undertaken by two British Tommies, the British version of American “GIs” or “grunts,” in April 1917. Lance Corporals Blake (Dean-Charles Chapman) and Schofield (George MacKay) are tasked with getting a message to another British unit in time to stop an attack from meeting certain disaster. One of the soldiers they are attempting to save is Blake’s brother. The pair must travel across no man’s land, the area between the opposing trenches, and German lines to fulfill their quest. In some ways, the movie reminded me of Saving Private Ryan (1998) with its journey across a battlefield to save a life.

To some extent, WWI is a footnote in American history. The war began in 1914, but the US didn’t get directly involved until April 1917. The war ended about a year and a half later on November 11, 1918, a date familiar to modern Americans as Veteran’s Day. In those 19 months, the US lost 116,516 soldiers with more casualties due to the 1918 Spanish flu epidemic than combat. Compare this to about 7,000 American dead in the War on Terror.

In contrast, the other belligerents suffered about 10 million dead soldiers and another 10 million or so dead civilians in four years of fighting. The war devastated an entire generation in Britain, France, and Germany. WWI was a blend of modern weapons like machine guns, gas, tanks, and airplanes and old tactics like mass charges across open ground. The result was a bloody mess. By the end of the war, much of Europe, France in particular, was devastated by the fighting, the combatants were broke, and Russia was embroiled in a communist revolution.

But 1917 doesn’t focus on the big picture. The movie is centered on the two infantrymen and their quest. [I don’t plan to include plot spoilers so read on even if you haven’t seen the movie.]

I had heard the cinematography of 1917 was spectacular. After watching the movie, I can vouch for this.

1917 is filmed in one-shot style in which there is only one obvious cut, a transition from day to night. Otherwise, the viewers stay with the characters as they make their journey. This is different from most other films and lends to a feeling of immersion into the story.

The journey begins in a pastoral camp and continues through the trenches, a staple of the battlefields of the Western Front. From the dizzying and claustrophobic maze of trenches, the two Tommies move across a hellish landscape that includes the no man’s land, as barren as the lunar surface but filled with bodies, and a gutted and burning French city where German soldiers lurk like demons. Death is omnipresent in this world and one can only imagine what it must have been like for the soldiers who lived in it for months or years on end.

One of these soldiers was Alfred Mendes, the grandfather of writer-director Sam Medes. 1917 is not based on a true story, but it was inspired by the war stories that Lance Corporal Mendes told his children and grandchildren in his later years.

Even though 1917 is rated R, it is not inappropriate for older kids. It is suspenseful and dramatic and violent but the scenes of violence are no worse than you would see on network television. There is profanity in the form of F-bombs and some coarse joking, but much of this is almost unintelligible if you aren’t accustomed to the various British accents. Depictions of dead bodies could be disturbing.

One complaint about the film was the typical war movie complaint that the enemy soldiers don’t shoot well. Leaving the theater, my daughter commented that the Germans shot about as well as stormtroopers did.

1917 is a gripping war story, but it is also an anti-war movie. It reminds us that the soldiers who fight wars also make up the majority of the victims, along with the civilians who inhabit the areas being fought over. War is sometimes necessary because mankind is too often in the habit of being evil, but war is always a waste.

Originally published on The Resurgent

Friday, January 17, 2020

Can Lev Parnas Be Trusted?



Lev Parnas, an indicted Republican fundraiser, has dropped a bombshell into the impeachment hearing in the form of mountains of notes, text messages, voicemails, pictures, and other documents relating to Rudy Giuliani’s shadow diplomacy in Ukraine. Parnas is naming names from President Trump on down as he spills the beans on what happened behind the scenes as the Trump Adminstration allegedly pushed President Zelensky to announce an investigation of Joe and Hunter Biden. The big question is whether Parnas can be trusted.

The short answer is no. Parnas lacks credibility and has plenty of incentive to bend the truth in order to ingratiate himself to Congress and bargain his way out his own legal troubles. The longer answer is that what Parnas lacks in credibility, he makes up for in documentation.

For those who haven’t been following the emerging situation, Parnas and Igor Fruman were arrested last October at Dulles International Airport just prior to leaving the country on one-way tickets. The pair were charged with attempting to funnel money from foreign governments to American elected officials. Both men were associates of Rudy Giuliani and were involved in Giuliani’s Ukrainian fishing expeditions for dirt on Joe Biden. Though both men were US citizens, Parnas was born in Ukraine and Fruman was born in Belorus, both former republics of the Soviet Union.

In early November, Parnas agreed to cooperate with the House impeachment probe. It was only this week, however, that a trove of documents from Parnas was made public by House investigators after receiving judicial approval. The document releases can be viewed here.  

Since Parnas himself is not a credible character, the documents that he has presented are more important than his own testimony, which so far has not been under oath. Some of the documents are more credible than others. For example, Parnas’ handwritten notes are questionable but a letter from Giuliani to Zelensky is more compelling.

The Giuliani letter is important in that it undercuts one of President Trump’s strongest defenses, namely that he was acting in the national interest. In the letter, Giuliani specifically claims that he represents Trump “as a private citizen, not as President of the United States.”


Also compelling are the series of text messages between Parnas and Robert Hyde, another Republican donor who is currently running for Congress in Connecticut. The pair’s now-famous message exchange indicated that US Ambassador to Ukraine Marie Yovanovitch was under their surveillance to the extent that they knew not only her location but whether her phone and computer were on. If the messages are genuine, it is very difficult to explain why they were keeping tabs on Yovanovitch for any reason that is not either creepy or sinister. If the messages are not genuine, it is difficult to explain why they were constructed to include Hyde, an unknown.

Interesting but not as damaging is Parnas’ undated note on a Ritz-Carlton-Vienna pad. One item on the to-do list reads, “Get Zalensky [sic] to announce that the Biden case will be investigated.” The note supports previous testimony that Trump’s goal in withholding the Ukrainian aid money was to force the announcement, but without context such as a date, it is impossible to know if it is genuine or was created later.

While there may be some doubt about the note’s legitimacy, there is no doubt that Parnas himself is the real deal. Among the releases are text messages between Parnas and Giuliani, including one in which Giuliani told Parnas that he needed to get then-Ukrainian President Petro Poroshenko and Prosecutor General Lutsenko “on the record about the ambassador and Biden” and asked, “Can you make it happen?”

Parnas also appears in photographs with a veritable Who’s Who of Republican and Trump Administration officials including Giuliani, Kellyanne Conway, Mike Pence, and numerous poses with President Trump. Most of these officials deny knowing Parnas and say that they don’t recall taking the photos.

The piece de resistance, however, is a copy of an email from Jay Sekulow in which the president’s personal attorney writes to John Dowd, another lawyer who was also once an attorney for Trump, on the subject of “Lev Parnas and Igor Fruman.” Sekulow told Dowd, “I have discussed the issue of representation with the president. The president consents to allowing your representation of Mr. Parnas and Mr. Furman [sic].” The obvious question here is why Donald Trump is involved at all in the legal representation of two low-level flunkies.

Lev Parnas is a sketchy character and his claims should be questioned and verified, but that does not mean that they are irrelevant. In the end, Parnas is one more link in the chain of evidence against Donald Trump along with the OMB and Pentagon emails released under the Freedom of Information Act that pointed to Trump as the source of the aid freeze, and the new GAO assessment that the president violated the law in withholding the aid. Parnas’ claims and evidence must be viewed within the context of other evidence and testimony to help complete the picture of what happened.

The revelations of the past few weeks both underscore the mistake Democrats made in rushing the impeachment vote and the fortunate decision of Speaker Pelosi in delaying the referral of the articles to the Senate. Without the delay, the new information would still be coming out but the Senate might already have dismissed the case. On the other hand, if Democrats had taken their time, they could have transmitted a more complete case to the Senate, where many Republicans seem determined to ignore any new information that has come out since December 18.

As the impeachment trial gets underway in the Senate, the one thing that seems is clear is that the more information that comes out, the worse things look for Donald Trump. While it is still extremely unlikely that Senate Republicans will vote for removal, Congress and the media will keep shining lights on the actions of Trump and his agents in Ukraine. If the president survives impeachment, the tales of his abuses of power and corruption may mean that his stay in the White House is only prolonged by a few months.

Originally published on The Resurgent

Wednesday, January 15, 2020

We Had To Pass The China Trade Deal To Find Out What Was In It

President Trump and Chinese Vice Premier Liu He signed the “phase one” trade agreement today to much fanfare. The 86-page agreement was trumpeted by the president as a “big, beautiful monster,” but details of the deal were uncharacteristically absent prior to the signing.
The US Trade Representative published a two-page fact sheet about the deal more than a month ago after the agreement was announced, but the link was broken when I tried to retrieve it for this article. Nevertheless, the site does give some broad details such as, “The United States will be maintaining 25 percent tariffs on approximately $250 billion of Chinese imports, along with 7.5 percent tariffs on approximately $120 billion of Chinese imports.”
New fact sheets and the text of the entire agreement are now on the Trade Representative site. You can access those documents here. Among the items in the agreement are:
  • Intellectual Property concerns regarding pirated and counterfeit goods
  • Protection against unfair technology transfers
  • Increasing China’s purchases of US goods by $200 billion over 2017 levels
  • Commitments by China to refrain from devaluing its currency
Other, more difficult issues, such as Chinese industrial subsidies, are slated to be addressed in subsequent agreements. President Trump has hinted that there may be as many as three phases to the China deal.
Under the new deal, Mr. Trump’s tariffs are here to stay, at least for the foreseeable future, but at least new rounds of tax increases have been staved off. The executive agreement does not have to be ratified by Congress.
As late as this morning, even Fox News had conflicting information from each side. US sources told Fox that Chinese purchases of US goods would “total $205 billion to $210 billion over two years while Chinese sources indicate the buys would be between $215 billion and $220 billion.” These figures include purchases of US agricultural products, manufactured goods, energy, and services. As noted above, the number cited by the US Trade Representative fact sheet is actually $200 billion.
Treasury Secretary Steven Mnuchin told Fox, “There’s a very detailed dispute-resolution process. This is an enforceable agreement just as the president dictated it would be.”
The Washington Post reports that the enforcement provisions a “process of consultations” to resolve disputes. The consultations will be backed up by the threat of – you guessed it – more tariffs.
Regardless of the details, markets have cheered the agreement. The most important detail may be simply that, at least for the time being, no new trade taxes will be applied to Chinese imports and exports. Even though the trade taxes remain higher than before the onset of the trade war, which has offset much of tax reform’s boost, the prospect of avoiding looming tax increases is a boon to beleaguered US agricultural and manufacturing sectors.
President Trump declared victory after the signing, saying, “Today we take a momentous step, one that has never been taken before with China, towards a future of fair and reciprocal trade.”
Now that the deal is signed and the agreement is public, economists and business groups can finally determine just how momentous that first step really is. Regardless of the details, avoiding more tariff escalations (i.e. tax increases) is a win for American business.

Originally published on The Resurgent

House Refers Impeachment To Senate: Here Are The Details

The delaying tactics ended today as the House voted to send the articles of impeachment against President Trump to the Senate. The impeachment will now move to the majority-Republican upper house for the trial of President Trump.
The vote to refer the articles and appoint impeachment managers fell mostly along party lines. The only defector in the 228-193 vote was Rep. Collin Peterson (D-Minn.) who voted with Republicans against the measure.
The impeachment managers who will present the case against the president are headed by Rep. Adam Schiff (D-Cal.), head of the intelligence committee, and Rep. Jerrold Nadler (D-N.Y.), head of the judiciary committee. Other members of the prosecutorial team include Rep. Zoe Lofgren (D-Calif.), Rep. Hakeem Jeffries (D-N.Y.), Rep. Val Demings (D-Fla.), Rep. Jason Crow (D-Col.), and Rep. Sylvia Garcia (D-Texas).
There was speculation that Pelosi would reach out to former Republican Rep. Justin Amash to join the impeachment team, but CNN’s Jake Tapper reported that Amash said that the Democrats never reached out to him. With Amash considering a presidential run, it makes sense that Pelosi would not want to give him a platform to gain national notoriety.
The first step for the Senate will be to pass an agreement defining the rules of the impeachment trial. This process will start tomorrow, January 16. Majority Leader Mitch McConnell says that he would like the trial to follow the model set in the impeachment of President Clinton in 1999.
In the Clinton trial, witnesses were deposed behind closed doors in video-recorded sessions. Following the witnesses, each side presented closing arguments and the Senate deliberated behind closed doors. Senators were not allowed to speak during the testimony but were each given 15 minutes during the deliberations. Votes were held after deliberations concluded.
The chief justice of the Supreme Court presides over the impeachment trial. For Mr. Trump, that means that John Roberts is in charge of the proceedings. This induces a measure of uncertainty since McConnell cannot drive events as he normally does in the Senate. No one knows how active Roberts will be in his role. In the Clinton trial, William Rehnquist was largely a fly on the wall.
As I reported yesterday, Republicans now seem to lack the votes to dismiss the impeachment outright so the trial is likely to last for several weeks as witnesses present sworn testimony.
The prospect of witnesses leads to speculation that former National Security Advisor John Bolton will be invited to testify. This could set up another showdown since Bolton has previously said that he would honor a Senate subpoena, but the president has threatened to invoke executive privilege in an attempt to silence his former advisor.
Another early fight shaping up regards press access. Some senators have advocated new restrictions on the press for the duration of the trial. There is bipartisan opposition to these new rules, however.
For now, we’ll have to wait to see what ground rules senators agree to as the trial gets underway tomorrow.

Originally published on The Resurgent