A Possible Trump Indictment And The Looming Constitutional Crises

As the Mueller investigation draws to a close, many political observers and legal analysts point to the increasing likelihood that President Trump will be implicated in criminal wrongdoing. Mr. Trump is not only threatened by the Russia probe but also the separate federal investigation by the Southern District of New York that recently led to the conviction of Michael Cohen. If investigators find evidence that the president committed crimes, it will trigger not but a series of constitutional crises.

As Erick Erickson pointed out earlier this week, “Republicans have gone mostly quiet, and their deflections are half-hearted and coupled with ‘but Hillary’ cries. This behavior is a pretty big red flag that everyone now knows Mueller has something and it is not good for the President and possibly for other members of his family.”

While the “something” that Mueller has may not be illegal Russian collusion, it is becoming more and more obvious that investigators do have something serious on the president. As Judge Andrew Napolitano said on Fox News after Cohen’s sentencing, “Career prosecutors here in New York have evidence that the president of the United States committed a felony by ordering and paying Michael Cohen to break the law. How do we know that? They told that to the federal judge. Under the rules, they can’t tell that to the federal judge unless they actually have that hardcore evidence. Under the rules, they can’t tell that to the federal judge unless they intend to do something with that evidence.”

While Napolitano said that the felony is that Trump paid Cohen to commit a felony, there are a host of other possible charges that the president could potentially face. These range from obstruction of justice to lying to the FBI. There is also the possibility that the investigations could have uncovered illegal acts committed by Mr. Trump before he became president. The Cohen investigation could have implicated Trump in anything from tax fraud to money laundering.

An accusation by prosecutors that President Trump committed a felony would trigger not one but several constitutional crises. The most obvious crisis would be whether a sitting president can be indicted. The current opinion of the Department of Justice is, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

The DOJ is concerned that malicious indictments of the president by rogue US attorneys or states could be used to subvert the will of the people. If you think this scenario is not possible, think again. It was only 10 years ago that prosecutors illegally hid evidence in the corruption trial of Senator Ted Stevens (R-Alaska). Stevens’ conviction was overturned and two prosecutors were suspended but only after Stevens had lost his Senate seat.

On the other side of the issue is the statute of limitations. The statute of limitations limits how long after a crime that the perpetrator can be prosecuted. Some crimes, such as murder, have no statute of limitations.  In the case of most federal crimes, the statute of limitations is five years. If President Trump is elected to a second term, the statute of limitations for offenses committed early in his administration would expire before he leaves office. This would effectively mean that the president could not be prosecuted if he committed nonviolent crimes in 2017.

It should be apparent to any student of American history and the Constitution that the framers did not intend that the president should be above the law and immune from prosecution. So, what is the remedy for criminal acts by a sitting president?

Most would argue that impeachment is the answer. Under this view, Congress would impeach the president and then he could be indicted in the court system. This theory has problems as well, especially in the case of Donald Trump.

The Constitution says that grounds for impeachment include “Treason, Bribery, or other high Crimes and Misdemeanors,” but does not define these terms. A 2015 report by the Congressional Research Service found that impeachable offenses don’t have to be criminal acts and not all criminal acts are impeachable offenses. Impeachable offenses would fall into three broad categories:

·        Exceeding or Abusing the Powers of the Office

·        Behavior Incompatible with the Function and Purpose of the Office

·        Misuse of Office for Improper Purpose or for Personal Gain

With respect to the current situation, another constitutional crisis would be fomented if President Trump was found to have committed crimes before becoming president. The question would be whether the president could be impeached for crimes committed before he took office. This question would be especially relevant if the statute of limitations for these crimes would expire before the president leaves office.

Many experts argue that impeachment should be limited to crimes committed while in office. The problem is that this could prevent the president from being prosecuted for crimes he committed before becoming president.

The CRS report indicates that there is precedent for impeaching officials for crimes committed before they took office. US Circuit Court Judge Robert Archibald was impeached in 1912 based on articles of impeachment that included acts committed in his prior position as a district judge. More recently, in 2010 US District Court Judge Thomas Porteous was impeached in part for acts committed before he held any federal office. These included misconduct as a state judge as well as lying to the FBI and Senate during his confirmation as a federal judge. The charges against both men also included acts related to their current office. No one has ever been impeached solely on the basis of acts committed prior to holding office.

There is also precedent for impeachment after an official has left office. In 1876, Secretary of War William Belknap resigned two hours before the House impeached him. In his Senate trial, Belknap argued that he was a private citizen and therefore not under the Senate’s jurisdiction. The Senate voted to affirm jurisdiction over Belknap but ultimately acquitted him of the charges against him.  

Impeachment is almost certainly out of the question as long as Republicans control the Senate, which they will until the end of Trump’s first term. This leads to a third constitutional conundrum. In today’s hyper-partisan environment, evidence of a very serious crime would have to be overwhelming for the president’s own party to vote to remove him from office. If there is no chance of removing Trump from office, there would be little point in House Democrats impeaching him. In the end, we may be left with a scenario in which Trump is accused of felonies by prosecutors who are prohibited by from indicting him. In Congress, Democrats consider impeachment but Republicans circle the wagons around the president and refuse to join the effort, arguing, “What about Hillary?” With the clock on the statute of limitations ticking and the impeachment effort stalled, Donald Trump could effectively use the office of president as a shield from prosecution.

The intent of the Founders was clearly not to have a presidency that is above the law. Having just fought a war to liberate themselves from a system in which the king had unchecked power, this would have been the last thing that they would have wanted, but that is the possibility with which we are confronted.

The current crisis was foreseen by John Adams, who warned, “Avarice, ambition, revenge, and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The best defense against a president using the office to shield himself from prosecution is for the parties to nominate people of good character and morals as their candidates and for voters to send trustworthy candidates to the White House. On that score, the country was in trouble regardless of the outcome of the 2016 election.

Originally published on The Resurgent

Another Chief Of Staff Candidate Bites The Dust

With respect to the search for a new White House chief of staff, it’s another one down and another one gone. Another potential candidate for the job bit the dust as Rep. Mark Meadows (R-N.C.) was removed from consideration.

“Congressman Mark Meadows is a great friend to President Trump and is doing an incredible job in Congress,” a White House official told the Wall Street Journal. “The president told him we need him in Congress so he can continue the great work he is doing there.”

Meadows, a close political ally of the president and chair of the House Freedom Caucus, said in a statement, “I know the President has a long list of tremendous candidates for his next Chief of Staff, and whomever it is will have my total support moving forward.”

Rumors began to swirl last week that John Kelly, the current chief of staff, would be leaving soon to be replaced by Nick Ayers, the chief of staff to Vice President Pence. President Trump told reporters on Saturday that Kelly would be leaving “at the end of the year,” but Ayers turned down the job, saying he wanted to return to his home in Georgia.

There was apparently no Plan B if Ayers didn’t take the job. In the days following Ayers’ decision, a number of high-profile Republican names have been floated for the job, only to back away. Budget Director Mick Mulvaney, US Trade Representative Robert Lighthizer, and former Pennsylvania Senator Rick Santorum have all announced publicly that they are not interested in the position.

Amid reports that the president was so toxic that no one wanted the job, which would be in close proximity to the Oval Office, Trump tweeted on Tuesday, “Many, over ten, are vying for and wanting the White House Chief of Staff position. Why wouldn’t someone want one of the truly great and meaningful jobs in Washington. [sic]”

https://twitter.com/realDonaldTrump/status/1072483770819846144

Despite the president’s assurances that candidates for the chief of staff job are lined up outside the White House, there are indications that Kelly may stay on the job into the new year. Also on Tuesday, White House Counselor Kellyanne Conway told Fox News that there was a possibility that Kelly might stay in the job beyond Jan. 2.

Several other possible candidates for the job remain. These include Steven Mnuchin, currently the Secretary of the Treasury, who has indicated that he prefers his current position. Energy Secretary Rick Perry, former New Jersey Governor Chris Christie, and David Bossie, a former Trump campaign aide make up the best of the rest of the list.

A major hurdle for people who want the job is getting approval from Jared Kushner and Ivanka Trump. Politico reports that the president’s daughter and son-in-law, who are also White House advisors, are exercising their considerable influence with the president to veto some candidates. Kelly’s rivalry with the couple may have hastened his departure and now they want the new chief of staff to be an ally.   

“Kelly was the last one they wanted out,” a former White House official said. “Now it’s not just the president who needs to sign off on” his next chief of staff. “It’s Jared and Ivanka. They have a big voice.”

Originally published on The Resurgent

President Trump: All I Want For Christmas Is A Government Shutdown

Americans must have been naughty this year because it looks as if one of their early Christmas gifts may be a government shutdown, courtesy of President Trump, Speaker-elect Nancy Pelosi (D-Calif.), and Senate Majority Leader Chuck Schumer (D-N.Y.). After a contentious Oval Office meeting on Tuesday, there seems little chance of agreement on a stop-gap measure to fund the government through the holidays. Unless a funding bill is passed, the government will shut down on Dec. 21.

In the televised meeting, the president repeatedly emphasized the need for border security that specifically includes a wall and threatened to shut the government down in order to get it. Pelosi and Schumer repeatedly said that they were seeking a compromise that would keep the government open.

“I am proud to shut down the government for border security,” President Trump stated as the discussion became heated, “because the people of this country don’t want criminals and people that have lots of problems and drugs pouring into our country. So, I will take the mantle. I will be the one to shut it down. I’m not going to blame you for it. The last time you shut it down, it didn’t work. I will take the mantle of shutting down.”

Leaving aside that the Democrats do make valid points (a phrase I seldom have to type) about the cost, practicality, and effectiveness of the wall, the president’s embrace of the shutdown strategy is a losing proposition. Although government shutdowns play well with the Republican base, they seldom achieve their policy objectives and usually end in an abject surrender often by Republicans who normally are shutting the government down because they lack votes.

Government shutdowns call to mind the Underpants Gnomes of “SouthPark.” The Gnomes famously described their business plan as follows:

Phase 1: Collect underpants

Phase 2: ?

Phase 3: Profit

In the case of government shutdowns, the plan seems similar:

Phase 1: Shut down the government

Phase 2: ?

Phase 3: Victory

Like the Underpants Gnomes, shutdown advocates focus on Phase 1 and Phase 3 while the vital details of the all-important Phase 2 remain sketchy. In fact, no one has ever been able to give me a reasonable explanation of Phase 2.

When it comes to passing legislation, the Constitution is specific about the process. Those of us who came of age in the ‘80s learned about it between Saturday morning cartoons with a Schoolhouse Rock short called, “I’m Just a Bill.” The abridged version is that any bill, including Trump’s border wall funding proposal, has to be passed by both houses of Congress.

The rub for the current Congress is a detail not mentioned by Schoolhouse Rock, the filibuster and cloture votes. Even though Republicans control both houses of Congress until the new Congress convenes in January, their slim majority in the Senate means that they don’t have enough votes for cloture.

Senate rules require a cloture vote to end debate on any bill. This modern, “gentlemen’s” filibuster requires 60 votes to advance a bill to a floor vote in the Senate. In practical terms, that means that Republicans need a minimum of nine Democrats to vote for cloture and end a filibuster.

What does this have to do with government shutdowns? Everything. The only way to pass a bill is to have the required number of votes. If Republicans can’t get Democrats to cross the aisle then the wall funding bill won’t pass, shutdown or no shutdown.

The problem for President Trump is that shutting down the government does nothing to entice Democrats to vote for the wall. If President Trump leads Republicans into a shutdown over wall funding, my prediction is that Republicans will eventually surrender and agree to reopen the open the government after a few days or weeks of wrangling.

This is what happened in 2013 when Sen. Ted Cruz (R-Texas) led Republicans to shut down the government over Obamacare. The shutdown lasted 16 days during which Republican approval ratings plummeted to their lowest level in history (up to that point anyway). Republicans surrendered and agreed to a deal to reopen the government and increase the debt limit. The Affordable Care Act survives to this day. The shutdown cost taxpayers $24 billion.

The shoe was on the other foot earlier this year when Democrats shut down the government in hopes of forcing an immigration deal that would legalize Dreamers. In this case, Democrats were the ones lacking the votes and they eventually had to give in.

The bottom line is that whichever party enters a shutdown without the votes they need is going to exit the shutdown without the votes that they need. There are only two ways to change votes in Congress: compromises and elections. Shutdowns just force both sides to dig in deeper. Both parties lose in public opinion. The other big loser is taxpayers who foot the bill for all the political drama. Contrary to popular belief, shutdowns cost more than keeping the government open.  

President Trump wants border security in the form of a wall, but he won’t get it from a shutdown. His best bet would be to embrace his status as an artist of deal-making and present Democrats with an offer too good to refuse. That’s what he promised in the campaign and what voters sent him to Washington to do. Pressing ahead to a government shutdown is setting himself and his party up for failure.

Originally published on The Resurgent

Brett Kavanaugh Just Helped Planned Parenthood Keep Its Funding

In a surprising move, newly minted Justice Brett Kavanaugh and Chief Justice John Roberts joined with the Court’s liberal justices to prevent the high court from deciding whether states could defund Planned Parenthood. The move will let stand lower court rulings that struck down two state laws in Louisiana and Kansas that would have barred the abortion provider from receiving Medicare funds.

Louisiana and Kansas had sought certiorari to allow the Supreme Court to hear their appeals in Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri. Four judges must agree to accept a case and the votes of Kavanaugh and Roberts to deny certiorari killed any chance that the Court would hear the Planned Parenthood cases, let alone allow states to defund the group.

Several other states have attempted to ban funding for Planned Parenthood at the state level after Republicans in Washington were unable to move a funding ban through Congress. For now, it appears that any further attempts to cut off the group’s federal money will be defeated.

Chief Justice John Roberts typically votes in the conservative bloc but has been key to some high-profile disappointments for constitutionalists. Roberts was the key vote in saving Obamacare with his opinion that the individual mandate was really a tax and therefore constitutional.

Kavanaugh’s vote may surprise some, but several observers predicted that if President Trump wanted to overturn Roe v. Wade, Kavanaugh was the wrong judge to pick. Similar to Roberts, Kavanaugh ruled on an Obamacare case in which he did not dispute the constitutionality of the health insurance law. Prior to Kavanaugh’s confirmation, Sen. Susan Collins (R-Maine) argued that Kavanaugh was a judge who would uphold precedent. That statement was interpreted as an indication that Kavanaugh would not strike down Roe and possibly Obamacare as well.

Justice Clarence Thomas, who was appointed to the Court by the recently departed George H.W. Bush, dissented, writing that the other judges were afraid to tackle the hot-button issue. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas said. “If anything, neutrally applying the law is all the more important when political issues are in the background.”

The decision not to grant certiorari is a hard hit for pro-life groups. “If Kavanaugh was going to deal a major blow to health care rights during his first session on the court, this would have been the case to do it,” Tim Jost, an emeritus professor at Washington and Lee University School of Law, said in Politico.

During the 2016 election, Donald Trump’s pro-life platform and promise to appoint judges who would overturn Roe was a major reason that many Republicans held their noses and voted for him over Hillary. Given Mr. Trump’s long pro-choice history and the ready availability of more firmly pro-life, constitutionalist judges such as Amy Coney Barrett, many of those voters must wonder today if Justice Kavanaugh has gone rogue or if he is doing exactly what President Trump and other pro-choice Republicans wanted him to. 

Originally published on The Resurgent

Trump Administration Throws Out School Lunch Rules Left Over From Obama Era

Complaining about school lunches is a time-honored tradition. From Adam Sandler’s ode to the lunch lady to ponderings about the odd rectangular slices of cafeteria pizza from my youth, lunchroom food has been a source of both grumbling and laughter. During the Obama Administration, the problem got worse, however.

The Healthy, Hunger-Free Kids Act of 2010 codified into law standards that were championed by First Lady Michelle Obama. The law set new standards for school lunches as well as vending machines that mandated higher nutrition as well as smaller portion sizes. The resulting bland, half-empty trays led my son to complain, “The food at school is bad and there isn’t enough of it.”

One area where the Trump Administration has been reliable is in rolling back onerous Obama era bureaucratic rulemaking. Easing federal oversight of local school lunches is no exception. Last year, Secretary of Agriculture Sonny Perdue announced an interim rule that relaxed the Obama guidelines. Now Perdue has unveiled the new permanent rules.

The Obama rules are a good example of well-intentioned federal rulemaking run amok. No one is against healthy food for students, but the federal one-size-fits-all approach can cause as many problems as it resolves. In a case of the Law of Unintended Consequences, school lunches became more nutritious, but they also wasted food because kids weren’t eating them. The federal guidelines didn’t recognize regional and cultural differences across the country. The law’s requirement for whole grains was difficult to meet while cooking foods such as pasta, tortillas, biscuits, and grits in a way that was palatable to children. Likewise, the Obama law permitted only nonfat flavored milk or 1 percent white milk and required every student to buy at least one serving of a fruit or vegetable “even if they toss the produce into the garbage” noted the New Haven Register at the time.

When I ate lunch at school with my children, I would see many parents bringing outside pizzas, sub sandwiches or chicken nuggets to their children. My kids and many other packed lunches from home that were not subject to the requirements of the federal nanny state. When I purchased school food and ate it with my kids, I found it very bland and unexciting. The staff told me that their cooking options were very limited because the federal mandate which also required reductions in sodium and other ingredients.

Now some sanity and local control are being restored to school lunches. Secretary Perdue said in a statement, “If kids are not eating what is being served, they are not benefiting, and food is being wasted.”

Under the new rules, only half of the grains served must be whole grain, allowing schools to use more appetizing flours when necessary. Students will also be able to drink low-fat chocolate milk instead of the fat-free milk that the government had required.

The fundamental problem with the situation is the fallacy that only the federal government can ensure that schoolchildren get healthy lunches. Contrary to the belief of some Americans, it isn’t necessary for the feds to micromanage what every child in America eats for lunch. State and local education and nutrition officials also have working brains and the best interests of the children at heart. School cafeterias were not dishing out poison to schoolchildren before Michelle Obama intervened.

The world won’t end with the Trump Administration’s new school lunch guidelines. Schoolchildren won’t starve and they won’t suddenly become morbidly obese. There is the chance that they might enjoy their lunch more, get a full belly and go back to class satiated and ready to learn, rather than still hungry because most of their lunch went straight from the tray to the trash can. 

Originally published on The Resurgent

John Kelly May Be Next Member Of Trump Administration Voted Off Island

If the Trump Administration can be likened to a reality television show, the steady stream of departures can be compared to contestants being voted off the island. As we approach the final installments of season two, there are rumors that the next exit will be none other than John Kelly.

Kelly, in the role of White House Chief of Staff, has long been rumored to want out and there are rumors that Kelly’s relationship with the president has become increasingly unworkable. CNN reports that Trump and Kelly have stopped talking to each other in recent days as the president has complained that Kelly is not politically savvy and is not well-suited to helping Trump handle a House led by Nancy Pelosi.

Shortly after the election, CNN reported that Trump was considering replacements for Kelly, Jeff Sessions, and DHS Secretary Kirstjen Nielsen. Sessions tendered his resignation as attorney general last month.

Axios reported that a likely replacement for Kelly would be Nick Ayers, chief of staff to Vice President Pence. White House insiders who favor Ayers argue that his political instincts could help Trump deal with a divided Congress as well as the Russia probe and an economy that is increasingly turbulent, in large part due to President Trump’s protectionist trade policies.

Kelly, a retired Marine four-star general, was originally appointed to be Trump’s secretary of Homeland Security. He became chief of staff in July 2017 in the shakeup that followed President Trump delivering his signature line, “you’re fired,” to Reince Priebus. Kelly helped bring order to the chaos of the Trump White House but has reportedly clashed with the president on numerous issues.

Previous rumors of Kelly’s firing or resignation have been ‘greatly exaggerated,” to use Samuel Clemens’ phrase. Last July, President Trump confirmed to senior staff that Kelly had agreed to stay on until at least 2020. Even at that point, Trump alternated between praising and criticizing Kelly and there were reports that the president had ignored or circumvented many of Kelly’s policies and protocols.

Now the news coming out of the White House indicates that Kelly’s departure may be imminent. With the habit of dumping controversial news on Friday afternoon or over the weekend, it’s possible that Kelly’s departure could be announced as soon as today. 

Originally published on The Resurgent

Blue Wave Reaches 40 House Seats With Another Dem Win In California

Although predictions that the Democrat blue wave would founder lasted through the early hours of poll results on Election Day, the extent of the wave has been growing in recent weeks as close races have been decided across the country. With the news that Republican David Valadao has been defeated in California’s 21^st congressional district, the Republican losses in the House have reached a total of 40 seats.

The win in CA-21 by Democrat TJ Cox brings the total number of California congressional seats flipped by Democrats to seven. This includes four seats in Orange County, which was a Republican stronghold in the past but became a totally Democrat county in 2018.

As with several other California Republicans, Valadao, who has represented his district since 2013, held a lead on Election night and was initially projected to be the winner. However, absentee ballots arriving after Election Day eroded their lead and eventually flipped the seats to the Democrats. On Nov. 6, Valadao led by 5,000 votes but ultimately lost by 862 votes, less than one percent of the total.

Some Republicans have speculated that fraudulent votes have changed the course of races in California, but so far there is no evidence of wrongdoing. California law requires absentee voters to register seven days before the election and mail ballots must be postmarked by Election Day and received within three days of the election. However, vote counting in California can take longer because California accepts ballots that could be rejected in other states. California law requires counties to notify voters of mistakes, such as missing signatures, that would otherwise invalidate a ballot and gives voters time to correct them. Ballots that were sent to the wrong county are also required to be forwarded to correct location.

Some Republicans also blame a new California law that allows “ballot harvesting.” Effective this year, California allows anyone to return signed and sealed absentee ballots to the local election officials. Previously, only relatives could turn in ballots for absentee voters. The law expressly prohibits paying vote collectors for the number of ballots that they turn in but is silent on whether they can receive an hourly wage for their efforts. While the new law may have led to an increase in the number of absentee votes, the law did not favor Democrats over Republicans except in the ability to find volunteers to collect ballots.

The outgoing chairman of the California Republican Party, former state Sen. Jim Brulte, rejected the notion that voting irregularities led to the Republican rout in the Golden State. Brulte told Politico that Republican candidates were warned about changes to California election laws and failed to take appropriate action.

“We personally briefed the candidates, the congressional delegation, the legislators,” Brulte said, but added, “We’ve not been able to find Republicans having a lot of success anywhere related to ballot harvesting.”

Brulte has other concerns about California as well, warning that, “I believe California is the canary in the coal mine — not an outlier.”

In Brulte’s view, the core problem for California Republicans was that “We have not yet been able to figure out how to effectively communicate and get significant numbers of votes from non-whites.”

Brulte pointed out that demographic trends indicate that “the entire country will be majority minority by 2044” and Republicans have failed to appeal to those new voters. Exit polling shows that the Republican base is becoming increasingly white, male, and rural. These changes mean that Republican candidates must “figure out how we get votes from people who don’t look like you,” Brulte says. The problem is pronounced in California but may soon affect such Republican strongholds as Texas, Florida, and Georgia where Republicans won extremely close races this year.

At this point, there is only one undecided House race left. In North Carolina’s 19^th district, Republican activists are accused of illegal ballot harvesting that is similar to what is now legal in California. The allegations of electoral fraud in North Carolina could lead to a new election in that district where Republican Mark Harris eked out a 905 vote win over Democrat Dan McCready.

Originally published on The Resurgent