Legally, Hearsay Can Support a Criminal Investgation

Ever since the jaw dropping details of the whistleblower complaint was released publicly, President Trump and his friends have been trying desperately to attack the whistleblower’s credibility. Through that complaint, the whistleblower detailed a shakedown perpetrated by Trump through his private lawyer, Rudolph Giuliani, of the Ukrainian Government, going back to a time before Volodymyr Zelensky was elected President of Ukraine.  Trump and Giuliani have been trying to get Ukraine to provide dirt to undermine the conclusion that Russia interfered in the 2016 election, as reached by the US intelligence community, the FBI and Robert Mueller’s investigation.  Trump and Giuliani also wanted Ukraine to provide information to damage the reputation of Trump’s political rival, Joe Biden. One argument Trump has used is that the whistleblower only had “second class” information.

Of course, Trump meant that the whistleblower had second-hand knowledge, meaning the whistleblower did not listen to the telephone call with Zelensky himself.  Rather, the whistleblower collected information concerning Giuliani’s pressure on Ukrainian officials from other people. Essentially, Trump’s friends, such as Republican Senator Lindsey Graham, claim that Trump cannot be impeached based on “hearsay.”  Hearsay, as every lawyer knows, is when a witness tries to testify regarding something the witness heard another person say. Although the law of hearsay is complex, with some exceptions hearsay is inadmissible in a trial and cannot support a criminal conviction.

Setting aside the fact that impeachment is a political process, and not a legal criminal proceeding, what Trump, and his friends such as Graham, forget is that Trump has not been impeached yet. Speaker of the House, Nancy Pelosi, has only announced that the House has opened an impeachment inquiry. This means that the House will formally begin acquiring evidence and holding hearings for the purpose of determining whether to impeach Trump.  That is, the House will commence an investigation into Trump’s actions.

This is where the hearsay defense falls apart. Even if impeachment were a true criminal proceeding, the use of hearsay would not invalidate the commencement of an investigation. For example, pursuant to US law, hearsay can be used to issue a search warrant.  A warrant can be issued upon a showing of probable cause.  Hearsay can establish probable cause if it has indicia of reliability. Indicia of reliability can include information about the person’s background, and details that can be corroborated. Here

Concerning the whistleblower's background, the New York Times claims that he is a CIA Analyst who was attached to the White House.  This would mean that the whistleblower was trained in collecting facts, and providing an analysis of what those facts mean.  He would have training in foreign affairs.  He would also have access to people who work with the President on a daily basis, who would have direct first-hand knowledge of the events and processes described,

Additionally, the details concerning the telephone call and the pressure placed on Ukraine have been, and are continuing to be, corroborated. First, Trump acknowledged that he placed pressure on Ukrainian President Volodymyr Zelensky concerning Biden.  Trump himself said to reporters, “Even the Ukrainian government put out a statement that that was a perfect call, there was no pressure put on them whatsoever. But there was pressure put on with respect to Joe Biden. What Joe Biden did for his son, that’s something they should be looking at.”  Thus, even before the White House released the memorandum of the telephone call, Trump admitted the substance of the call, and that his aim was to compel Zelensky to provide information on Biden.

Then, the release of the memorandum of the telephone conversation itself confirmed details the whistleblower disclosed in his complaint.  This included Trump referring to his view that while the United States has been good to Ukraine, the relationship has not always been reciprocal.  Indeed, as recorded in the memorandum, Trump specifically asked Zelensky for a favor, which appeared to be connected to Zelensky's expressed desire to buy more Javelin missiles.  This "favor" actually turned out to be two.  trump wanted Ukraine to investigate whether the server of the Democratic National Committe taht had been hacked was in Ukraine.  He also wanted information on Joe Biden and his son, Hunter.  The whistleblower mentioned both of these in his complaint.

Moreover, Giuliani himself has been corroborating the allegation that he has been acting as the go between for Trump to Ukrainian officials, and that this has been going on for some time.  Giuliani has been making appearances on television confirming that he traveled around the world to meet with Ukrainian officials and to talk about Joe Biden.

With this much corroboration, the whistleblower’s allegations would almost certainly be ruled to be supported by indicia of reliability and thus support a finding of probable cause.

Hearsay can be used to identify potential witnesses. In this instance, the House Judiciary Committee will hold hearings. It is perfectly acceptable to use the information provided by the whistleblower to identify people working in the White House from whom the Committee will want to hear. In fact, Judiciary Committee Chair Adam Schiff announced that the committee is working with the whistleblower's lawyers to have the whistleblower testify before the committee.  When testifying before the committee, the whistleblower can identify with whom he spoke concerning his allegations, and how he knows about the process the White House used to try to cover up the phone call.  This will help the committee identify witnesses with first-hand knowledge of the allegations, and what other evidence the committee will need to subpoena.  Over the next few months, we can expect there to be ongoing testimony by White House staff, Rudy Giuliani, and members of the intelligence community concerning the pressure Trump placed on Ukraine.

It is important to keep in mind that impeachment itself is not the end process. That is, a president is not removed from office simply because the House votes in favor of impeachment. If comparisons to criminal law are to be maintained, impeachment is more like an indictment. It represents the House concluding that there are reasons why a majority of House members believe the president has abused his office and deserves to be removed. Whether the president is actually removed is determined by the Senate, which holds a trial over which the Chief Justice of the Supreme Court presides. It will be up to the Senate to determine its own rules on how the trial proceeds, just as the House decides the rules concerning impeachment.

At this time, the United States is just at the beginning of an impeachment inquiry. To say that the whistleblower’s allegations, as outlined in his complaint, cannot support the opening of an investigation is just plain wrong. These allegations, which already have corroborating evidence, can and should serve the basis of identifying avenues the Judiciary Committee should pursue in collecting further evidence to permit the House to decide whether ultimately to impeach President Trump.

By: William J. Kovatch, Jr.

Whistleblower Complaint Provides More Evidence of Trump's Abuse of Power

The House Permanent Select Committee on Intelligence released the whistleblower complaint Thursday morning, after it had been declassified.  Through the complaint, the whistleblower detailed pressure placed on Ukraine to provide Trump with information he and his allies viewed as helpful for the President's 2020 campaign.  That pressure went beyond a mere telephone call, and circumvented the normal channels of U.S. foreign policy.  Moreover, the whistleblower detailed procedures in place to cover-up Trump's other abuses of his office for political gain.

Despite assertions by key Republican figures that the memorandum of the telephone call between Trump and Ukrainian President Volodymyr Zelensky revealed no "quid pro quo," the whistleblower detailed how Trump and his allies had been placing pressure on Ukrainian officials to cooperate with Trump's desire to smear his political rivals for several months. 

On Wednesday, before the complaint was released, Trump was desperate to show that the telephone call did not reveal any impeachable offense.  To that end, Trump and his Republican apologists attempted to constrain the analysis to the four corners of the memorandum of the telephone call, claiming that language used showed no pressure or quid pro quo.  The goal was to distract the public rom the fact that no quid pro quo was even necessary to show an abuse of office, as the solicitation of information to be used against an opponent from a foreign source is itself sufficient for there to be a criminal violation of federal campaign finance law.

Trump, therefore, attempted to dispel allegations that he put pressure on Zelensky by parading the visibly nervous Ukrainian President in front of the television cameras at the United Nations on Wednesday.  Not surprisingly, Zelensky responded in the negative when Trump pointedly asked if he felt pressure from the July telephone call.  However, the whistleblower cited President Zelensky's website, on which was posted the first acknowledgment of telephone call on July 25, 2019.  This post included a statement that Trump hoped Ukraine would "complete the investigation of corruption cases that have held back cooperation between Ukraine and the United States."  From the memorandum of the telephone call, the only case of alleged corruption mentioned by Trump was the investigation into Joe Biden and his son Hunter.  Clearly, Ukrainian officials understood that cooperation with Trump and his allies over providing information on Biden was a condition to renewed U.S. assistance.  Given the timing of the call, which took place after Trump had suspended military aid to Ukraine, Trump's reminder to Zelensky that while the United States had provided assistance to Ukraine in the past the cooperation between the two countries had not been reciprocal, and the fact that Trump requested a favor from Zelensky immediately after Zelensky indicated a desire to purchase more Javelin missiles, it is easy to see how Zelensky viewed future cooperation with the Trump Administration would be contingent on providing the information on Biden that Trump requested.

Moreover, the whistleblower detailed how Trump and his allies placed pressure on Ukraine to investigate both the hacking of the Democratic National Committee's email server and the Bidens months before Zelensky won the presidential election. The scheme centered around a Ukrainian Prosecutor General, over whom Trump and his allies believed they had influence.  Trump believed that his efforts to manipulate that prosecutor has been frustrated by official U.S. foreign policy channels.

In the July telephone call, for example, Trump refers to a "prosecutor who was very good" whom Trump believed was "shut down."  Trump described this situation as "really unfair" and involving "very bad people," including "[t]he former ambassador from the United States, the woman . . . ." 

Up until the release of the whistleblower complaint, many had assumed Trump was talking about Viktor Shokin.  Shokin was the Prosecutor General that the Obama Administration, as well as most of Western Europe, opposed as being soft on corruption.  This was the prosecutor whom Obama wanted Biden to pressure the Ukainian President to remove in 2016.  However, the whistleblower discussed a more recent Ukrainian Prosecutor General, Yury Lutsenko, who served under Zelensky's predecessor, Ukrainian President Petro Poroshenko. 

The whistleblower noted that Trump's private attorney, Rudolph Giuliani, met with Lutsenko once in New York in January of 2019, and again in February of 2019 in Warsaw.  In March of 2019, Lutsenko and his allies claimed that Ukraine had evidence that the Head of the National Anticorruption Bureau of Ukraine, Artem Stynyk, and a member of the Ukrainian Parliament, Serhiy Leshchenko, worked with the DNC and the U.S. Embassy in Kiev to interfere in the 2016 U.S. presidential election.  They also claimed that U.S. Ambassador Marie Yovanovich obstructed Ukrainian corruption investigations by providing a "do not prosecute" list and by preventing Ukrainian prosecutors from traveling to the United States.  Further, Lutsenko and his friends claimed that Biden pressured Poroshenko to fire Shokin to stop an investigation of Burisma, the Ukrainian oil and gas company that employed Biden's son, Hunter.  Lutsenko stated his desire to discuss these matters with U.S. Attorney General William Barr.

The timing of Lutsenko's allegations, after Lutsenko had met with Giuliani, raise the very serious question of whether Giuliani planted these ideas in Lutsenko's head, and urged him to investigate the matters.  Bearing in mind that Trump still refuses to accept the conclusions of the U.S. intelligence community, the FBI and Robert Mueller's investigation that Russia interfered in the 2016 election, and that Trump regularly engages in the tactic of deflection when evidence of his wrongdoing surfaces, it is clear to see how Lutsenko's statements about the DNC would politically benefit Trump.  To detract from proof of Russian interference, Trump has claimed that it was the Democrats who actually solicited foreign interference in the 2016 election from Ukraine to support Hilary Clinton's candidacy.  By publicly claiming to have evidence of a DNC scheme, Lutsenko would appear to corroborate Trump's conspiracy theory.

Additionally, Ambassador Yovanovich, who was appointed by President Obama, had voiced her criticism that Lutsenko was himself soft on corruption.  In April of 2019, Lutsenko walked about from the March allegation, admitting that Yovanovich never provided a "do not prosecute" list, and that it was Lutsenko who had actually requested such a list. Yovanovich was therefore acting in opposition to Trump's scheme, as implemented by Giuliani.  In fact, as an Obama appointee, Yovanovich was independent of President Trump, and in a position to thwart Giuliani's attempts to solicit political help from the Ukrainian Government. 

Yovanovich was recalled to Washington in March, and removed as the Ambassador in April, after Zelensky's election as President.  Giuliani this was "because she was part of the efforts against the President."

Moreover, in May, Lutsenko acknowledged that there were no investigations targeting Biden or his son, Hunter, and that Ukraine had no evidence of any wrong doing of either Biden.

Nonetheless, Lutsenko had proven to be receptive to Giuliani's urgings that he investigate alleged Ukrainian interference in the 2016 election on behalf of the Democrats, and the claim that Biden had pressured Poroshenko to remove Shokin to protect Hunter Biden.  When Poroshenko lost the Ukrainian presidential election, Trump viewed it as in his personal interests to have Zelensky permit Lutsenko to continue as the Prosecutor General.  This is what Trump appears to be implying in the July telephone conversation.

In furtherance of the pressure Trump and his allies were already placing on Ukraine, the President instructed Vice President Michael Pence to cancel his trip to attend Zelensky's inauguration as Ukrainian President on May 20.  According to the whistleblower, it was "made clear" to Ukrainian officials that Trump did not want to meet with Zelensky until Trump saw how Zelensky "chose to act."  Specifically, a meeting or telephone call between Trump and Zelensky would be contingent upon Zelensky's willingness to "play ball" with the allegations of collaboration between Ukraine and the DNC, and that Biden had acted to protect his son from an investigation into corruption.

The whistleblower, therefore, outlined a campaign of pressure on Ukrainian officials, dating back to at least January of 2019, through Trump's private attorney, to find evidence to support Trump's claims that the DNC cooperated with Ukraine to interfere in the 2016 U.S. presidential election, and that Biden had pressured Ukraine to fire its top prosecutor to protect his son.  That is, Trump's campaign of corruption concerning Ukraine concerned more than merely one telephone call in July of 2019.

At any rate, the pressure Trump has placed on Ukraine to dig up dirt on his political opponents is but only one troubling aspect of the whistleblower complaint.  Equally serious is that Trump has been conducted a sort of rogue foreign policy circumventing the normal governmental avenues of the State Department and the national security apparatus.  Instead, Trump is sending his private lawyer, a man with no experience in foreign policy, to pressure Ukrainian officials into doing Trump's bidding.  Indeed, Ukraine has been getting two separate set of communications from the United States, one from the official foreign policy channels, and one from Rudy Giuliani.  These communications have been in conflict, necessitating U.S. Government officials to advise Zelensky and other Ukrainian political leaders on how to navigate the waters between official U.S. policy and Trump's rogue policy.

Still worse, the whistleblower detailed the extent to which Trump's corruption has been accepted by White House staff as normal.  In this regard, the White House has a computer server where transcripts of the President's telephone calls are kept until they can be finalized.  The data on this server is available to cabinet members and other executive appointees to allow them to keep up with Trump's communications with world leaders.  However, the transcript of this conversation with President Zelensky was pulled off the widely available server, and placed on a server where telephone conversations containing sensitive matters of national security are stored.  Access to this server is not widely available, but closely guarded.  The Zelensky conversation was placed on the more secure server despite the fact that the conversation did not address sensitive matters of national security.  Rather, the whistleblower detailed a practice whereby Trump's telephone calls where he abuses his office for private political gain are routinely taken off the widely available server, and stored on the national security server.  Thus it appears that Trump's staff has been complicit in covering up multiple instances where Trump has abused his position for personal gain.

The transcript of the July conversation with President Zelensky was bad enough.  But Congress should not constrain itself to considering that conversation alone.  While Trump's public admissions and the memorandum of the telephone conversation are themselves enough to establish violations of Trump's constitutional oath and criminal campaign finance laws, the whistleblower's complaint details a much farther reaching scheme. This scheme involves Trump's abuse of his role in foreign relations to seek personal political gain, and a cover-up meant to protect Trump from scrutiny and accountability.  All toll, the evidence in favor of Trump's impeachment is mounting, and cannot be ignored.

By: William J. Kovatch, Jr.

Trump's Telephone Call with Ukrainian President Volodymyr Zelensky Reveals Why Trump Must be Impeached

On Wednesday morning, the White House released damning evidence which revealed that U.S. President Donald Trump deliberately sought information from a foreign country that Trump hoped would be damaging to a political opponent, former Vice President Joe Biden.  Specifically, the White House released a memorandum of a telephone conversation between President Trump and Ukrainian President Volodymyr Zelensky that took place on July 25, 2019.

The phone call was at the heart of an allegation by an unnamed member of the U.S. intelligence community, who filed a whistleblower complaint with the Inspector General of the Intelligence Community, Michael Atkinson, on August 12, 2019.  Prior to the release of the transcript, all that was known of the complaint was that it concerned an allegation of an inappropriate promise made by Trump to a foreign leader through a telephone call.  The complaint was deemed credible and of an urgent concern by Atkinson, who turned over the complaint to acting Director of National Intelligence, Joseph Maguire.  Because it had been deemed of urgent concern, federal law required Maguire to turn the complaint over to the intelligence committees of the House of Representatives and the Senate.  When Maguire failed to do so in the time proscribed by statute, Akinson alerted Congress to the existence of the complaint.

While the Administration dragged its heels on releasing the text of the complaint, the Wall Street Journal published an article on September 21, 2019, asserting that Trump had pressured Zelensky about eight times in the telephone call to investigate Biden and his son Hunter.  Despite initial denials and cries of  "fake news," Trump himself acknowledged that he had pressured Zelensky into investigating Biden and his son.  Trump's admission, along with his Administration's intransient stance on withholding the text of the complaint, prompted the House Democrats to meet on Tuesday night.  As a result of that meeting, House Speaker Nancy Pelosi, who had been opposed to impeachment over the findings of the Mueller Report, announced that the House would now begin a formal impeachment inquiry.  Feeling the political pressure on him growing, Trump agreed to the release of the transcript of his telephone call after obtaining consent from the Ukrainian Government.

It should be noted that no real word for word transcript of the telephone conversation exists.  Rather, the White House released a memorandum of the telephone call pieced together by government officials whose job included taking notes of such conversations.

Nonetheless, despite Trump's claims that the telephone call was "perfect," and that the transcript would exonerate him, the memorandum instead provides a smoking gun of an abuse of presidential power for personal political gain.

A review of the conversation demonstrates how Trump brazenly ignores his constitutional oath, and seeks to use his office for his own personal benefit.

Specifically, the memorandum confirms that Trump requested that Ukraine cooperate with his private attorney, Rudolph Guiliani, and the Attorney General, William Barr, specifically mentioning Trump's belief that Biden stopped a prosecution in the Ukraine that involved Biden's son, Hunter.  After Zelensky agreed to cooperate, Trump stated that he would have both Giuliani and Barr call Zelensky.

Joe Biden, of course, seeks the Democratic nomination for the 2020 presidential election, and currently leads the pack of potential nominees in most polls.  Indeed, in head to head polls, Biden leads Trump by wide margins.  Receiving information that Biden acted corruptly from Ukraine could potentially help Trump in his bid for reelection.

Trump faces the problem, however, that no evidence exists showing that either of the Bidens did anything wrong.  Before Zelensky was elected Ukraine's President, Vitkor Shokin served as Ukraine's top prosecutor.  He was supported by Russia, who was interfering in Ukrainian internal politics.  As is well known, once Ukraine started to turn more towards the West, Russia supported armed Ukrainian separatists, and even invaded Ukraine, occupying the Crimea and claiming it as Russian territory.

Shokin was viewed by Western European governments and the Obama Administration as being soft on corruption.  President Obama sent Biden on a mission to Ukraine to pressure the Ukrainian President to remove Shokin by withholding about $1 billion in U.S. aid.  The intention behind the move was to pressure Ukraine to be tougher on corrupt oligarchs through more aggressive investigations.

At the time, Biden's son, Hunter, held a position as a paid member of the board of a Ukrainian oil and gas company, Burisma.  While Burisma had been under investigation by the Ukrainian Government, under Shokin, the investigation had stalled.  Thus, by insisting on the appointment of a tougher prosecutor, Biden was not only representing official U.S. policy, but risking a renewed investigation of the company that employed Hunter.  No evidence exists that Biden was using his office for personal gain, or that Hunter himself had engaged in any sort of corruption.  Trump's goal. therefore, was simply to manufacture as much alternative facts as possible to cast dispersions on Biden, and hopefully use that to whittle away at Biden's lead in the polls.

In addition to claiming that his request to the Ukrainian President was appropriate, Trump has also claimed that the memorandum shows that there was no pressure placed on Zelensky, and no quid pro quo (or an exchange for something of value to Ukraine for providing the requested information).  Trump's defense again strains credibility.

At the beginning of the telephone conversation, Trump reminds Zelensky that the United States has been Ukraine's biggest supported.  Trump denigrates the actions of European allies, such as Germany, for not doing as much as the United States in supporting Ukraine.  Zelensky responds by fawning all over Trump, agreeing with his statement "1000%."  Most of Zelensky's responses transmit his desire to stay in the good graces of the Trump Administration.  Specifically, Zelensky is quoted a saying, "We are ready to continue to cooperate for the next step specifically we are almost ready to buy more Javelins from the United States for defense purposes."  A Javelin is a missile used by the U.S. military, and would presumably be used by Ukraine in defending its territory from Russia and Russian backed separatists.

This reference to Javelin purchases must be placed in context.  Congress had approved about $250 million in military aid to Ukraine.  However, just days before this telephone call, Trump had ordered that the disbursement of this aid be suspended.  It should also be noted that Trump's admiration of Russian President Vladimir Putin is well-known globally.  In fact, not long after this telephone conversation, Trump publicly stated his support for the readmission of Russia to the G-8, even though Russia had been thrown out because of its invasion of Ukraine.  Clearly, Zelensky had reason to believe that Trump's continued support of Ukraine in its struggle against Russia was soft at best, and could be withdrawn if Ukraine did not do as Trump requested.

In that regard, Trump is quoted as stating, "I would like you to do us a favor though," immediately after Zelensky brings up his desire to buy more Javelins.  The juxtaposition of this request from Trump immediately after Zelensky's spoken desire to buy more missiles, as well as his use of the word "though," indicates that Trump's willingness to provide additional aid was contingent on Ukraine's cooperation with his request for a favor.

What is interesting, however, is that Trump requests more than one favor.  The first one concerned a matter Trump refered to as "Crowdstrike."  Crowdstrike is the company that the Democratic National Committee used to investigate the hacking of its email server.  The Crowdstrike, the FBI and Robert Mueller's investigative team all concluded that Russia was responsible for that hacking.  Yet Trump refused to believe his own Government in reaching that conclusion.  One reason for his belief is because Crowdstrike never turned the physical server over to the FBI.  Trump believed rumors that Ukraine was in possession of the server.  He therefore asked Zelensky for his help in proving that Trump's convoluted conspiracy theory was true.

It is beyond odd that Trump demanded of the Ukraine that it find evidence Trump hoped would exonerate Trump's buddy, Putin, from the conclusion of the U.S. intelligence community, the FBI and the Mueller team that Russia interfered in the 2016 U.S. presidential election.  It demonstrates Trump's refusal to accept the conclusions of the Mueller and his team, who spent about two years investigating Russia, the Trump Campaign and the Trump Administration.  That investigation resulted in numerous criminal indictments, including the indictments of Russian officials.

Indeed, the timing of the telephone call further demonstrates the contempt that Trump held for Robert Mueller and his investigation.  Mueller had testified before Congress on the day before this telephone call.  Through his investigation, Mueller presented evidence of Russia's interference in the election, that the Trump Campaign had welcomed Russia's interference (although the conduct of campaign officials did not rise to the level of conspiracy), and of numerous instances that could support a conclusion that Trump engaged in obstruction of justice by frustrating the investigation into Russia's interference.

Mueller crafted his report on the investigation with the understanding that a sitting president could not be indicted during his term in office.  Thus, Mueller was careful not to make a conclusion that Trump had committed criminal acts.  Nonetheless, through his report, Mueller made it clear that his investigated did not exonerate Trump.  Rather, he preserved the evidence so that it could be used presumably either by Congress through impeachment or through a criminal prosecution once Trump left office.  Trump and his Administration publicly characterized the investigation as finding that there was "no collusion" and "no obstruction," despite the fact that Mueller made neither of those findings.

Trump, of course, repeatedly referred to the Mueller investigation as a "which hunt," confessing his belief that he, his campaign and his administration did nothing wrong.  Thus, in an interview aired in June of 2019, Trump answered a question from George Stephanopoulos by stating that he did not think it would not be wrong to accept information about a political opponent in an election from a foreign national.  Trump even indicated that if a foreign national provided such information, that he did not believe it was necessary to inform the FBI.  This brazen flaunting of the law raised such an uproar, that the Chairwoman of the Federal Elections Commission was prompted to tweet that "it is illegal to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election."  A thing of value incudes information that can be used against an opponent.

Trump, of course, never accepted that he did anything wrong.  Thus, in the shadow of Mueller's testimony before Congress, Trump went one step further than merely welcoming foreign interference in a U.S. election; he outright solicited such interference from a foreign leader.

The conclusion here is inescapable.  The memorandum of the telephone call to Zelensky shows that Trump has violated the public trust.  He has violated his oath to protect and defend the Constitution against all enemies, foreign and domestic.  In fact, Trump himself has violated the Constitution as well as criminal law by soliciting foreign interference in connection with a federal election.  In order to protect the constitutional balance, governmental ethics and our treasured democracy, the House of Representatives has no choice now, but to proceed with the impeachment inquiry.

By:  Willliam J. Kovatch, Jr.

The Far-Right Feel Entitled to Have Trump and His Racism

What the Left in this country don’t get about Trump fans is that they don’t ignore the fact that the President is a lying, cheating, ignorant misogynistic and racist of a bully. Trump fans feel entitled to it. 

This goes all the way back to the Clinton Presidency. Clinton was a lying and cheating bully. But he was so talented with interpersonal relations, go often got away with it. That’s why his nickname was “Slick Willie.”  When women dared to make allegations of sexual impropriety, the enablers around Slick Willie circled the wagons and defended him. When he was caught red-handed lying under oath, Republicans thought they had their moment of victory. Let’s face it, there was substance to the allegations of perjury and obstruction of justice. Otherwise, he would not have been disbarred. 

Perjury and obstruction of justice are valid reasons for impeachment of a president. Feeling justified in their actions, House Republicans impeached Clinton. But again, his enablers rallied around the President, distracted the public from the legal charges against Clinton, and made it about sex, which they called “a personal matter.”  Never mind that sex scandals and infidelity had brought down numerous less talented politicians than Clinton. 

Republicans were angry that Democrats could rally around such an immoral character as Slick Willie. The so-called “Arkansas Mafia” relentlessly attacked the character of the numerous women who came forward. To the GOP, it looked liked the Democrats had hypocritically attacked these women, while simultaneously complaining about the toxic male behavior that underlies sexual harassment and domestic violence. 

Talk show hosts, most notably Rush Limbaugh, ranted day after day about how Republicans are too nice. If there was a sniff of scandal around a Republican candidate, that candidate was dumped. Limbaugh decried that Republicans didn’t rally around a politician who was under attack like the Democrats did. In short, Republican voters, egged on by the likes of Limbaugh, Sean Hannity and Mark Levin, convinced themselves that Democrats got away with playing dirty politics. They wanted their own dirty politician who fight the dirty Democrats, blow by blow. 

The party leadership resisted while they could. But honorable men, such as Mitt Romney and John McCain, would win the nomination, only to see the strongest opposition come from their own party voters. Far-Right voters labeled anyone who didn’t tow a hard core conservative line as RINOs, Republicans in name only. 

Then along comes Donald Trump. Unapologetic in being a bully. Throwing nasty names out to all opponents, even Republicans. It didn’t matter that he got his facts wrong. It didn’t matter that his insults were steeped in xenophobia, racism and misogyny. It didn’t matter that many women accused him of sexual assault, or even that he took pride in how easy it was for him, a celebrity, to get away with it. The Left had their Bill Clinton. To the Far-Right voter, it was only fitting and fair that they get their bully who could ignore the moral consequences of his actions. 

Just confront a Trump fan with his abhorrent behavior. Inevitably, a Trump fan will respond with, “What about Clinton!” To them, it’s not about the deep, irredeemable personality flaws in Trump. He fights. He fights dirty. He is their Bill Clinton. 

By: William J. Kovatch, Jr. 

Trump Needs to Keep Tweeting

I hear the refrain all the time. “That Trump needs to stop tweeting,” or “someone needs to take Trump’s phone away from him.”  It’s because Trump’s tweets make people feel uncomfortable.

And why shouldn’t they feel uncomfortable?  Through his tweets, Trump is his most raw self. They are his inner most thoughts. They can be angry, insulting, bullying, vulgar, narcissistic, and above all, ignorant.

Trump’s tweets show that he ignores sources of information that do not fit into his world view. He routinely calls news and polls that don’t flatter him “fake news,” while lauding polls and news that massage his ego, even if the source is objectively unreliable.

Trump attacks his enemies in his tweets, often based on superficial characteristics. He will degrade women often referring to attractiveness or what thinks is their intelligence. He attacks talk show hosts by berating what he thinks is their ratings. But very rarely do you ever see him engage in an intelligent policy debate.

Trump uses his tweets to bully. If he disagrees with a person, that person gets an ugly nickname. He rebukes people for not thanking him. His bullying tweets can go on for days, weeks, months . . . .

Trump tweets most when he’s angry. When he is angry, Twitter becomes his outlet for some of the most vile, vitriolic language he can muster.

In short, Trump’s tweets confess his misogyny, his ignorance, his racism, his lack of intelligence, his lack of understanding of the Constitution, his unstable personality and his narcissism. All in all, Trump’s tweets show that he is more than simply unpresidential; they show that he is a dangerous man to be in the White House.

And that’s the main reason why they make people uncomfortable. People want to go on with their lives, hoping things can just remain normal. But Trump’s tweets are a constant reminder that we elected a totally unqualified, ignorant, horrid excuse for a human being to lead our Government. His tweets make people confront the fact that Trump has strained relationships with our allies, made politics far more combative and ugly than ever, and shown contempt for some of the fundamental principles of our Constitution. His tweets show how no one can continue to ignore politics.

While Trump’s tweets make some people uncomfortable, and anger others, he needs to keep tweeting. He needs to keep showing us just what an appalling person he is. That way, more people can be motivated to get him out of office to restore the prestige of the United States and the Office of the President. Please, Mr. Trump, keep tweeting.

By:  William J. Kovatch, Jr.

Daniel Phillips, Black Hebrew Israelites Bear Blame for Friday’s Confrontation with Catholic Students

It seems that whenever there is a clash with ethnic overtones, and some young men sporting red MAGA hats are involved, the knee jerk reaction is to blame the youth in MAGA garb. So automatic this reaction has become, that the original impression (Trump supporters are all evil, racist, violent and ignorant) lingers long after more evidence surfaces demonstrating blame belongs to numerous parties. 

Let’s take this incident that happened in front of the Lincoln Memorial on Friday, during the March for Life Event. With so many people gathered already for political activism, the event attracted fringe elements of society attempting to publicize their agenda. One such group was the Black Hebrew Israelites. 

The Black Hebrew Israelites stood at the base of the steps, spewing racist, offensive hate. Their goal was to spark confrontation, at which they succeeded several times. 

Eventually, the Black Hebrew Israelites began an offensive roll of insults against the Catholic Church. At this point, the group begins to attract the attention of male students from Covington Catholic High School, many of whom happen to be wearing red MAGA hats.

The Black Hebrew Israelites then spews hate and insults directly at the students. The initial reaction was for the students to leave. Over the next twenty to twenty-five minutes, as the group continues to spew hatred, little by little, the student gather on the steps in back of and to the right of the group, keeping a distance of several yards.  (Some have reported that the students were waiting for buses.)

As the speakers begin to notice the growth in students in their audience, they target the students directly for an offensive tirade. The students respond by drowning out the speakers with sports cheers and chants. As the adrenaline flows, one attention-grabbing student runs to the front of his friends, and strips his shirt off as his friends scream in support. The boy then leads the groups in what appears to be a tribal-like cheer (the Haka?) that many sports teams have adopted as a show of intimidation. The crowd howls its approval. 

The crowd continues with a more popular and recognizable sports chant. It was at this point that Daniel Phillips, an activist for indigenous people’s rights, decided to intervene. Beating a rhythmic pattern on a hand-held drum, engaging in a chant, Phillips marched directly toward and then into the crowd of students. Phillips later stated he approached the students, and not the Black Hebrew Israelites, because the group of students was much larger and mostly white. 

As Phillips approached the students, they gave no ground. Phillips walked straight towards one student, who smirked, but who did not move as Phillips banged the drum in his face. The rest of the students reacted by chanting as well, and then clapping in time with the drum. 

The chant devolved into a chant made famous by the Florida State Seminoles, and popular for other teams with Native American mascots: The Chop. This includes the Atlanta Braves, where Deion Sanders brought the chant after attending FSU.

Certainly, this is not Christian behavior, and deserves a talk from Christian Youth leaders on how to respond to such aggressive behavior by others in a way that is consistent with Christian values and beliefs. But the worst thing the students did was to use sports chants popular with teams that have Native American mascots. The students were not the aggressors. 

Daniel Phillips must shoulder some blame for being unduly aggressive. He has himself admitted that he chose to talk toward and into the group of students because they were a larger group and mostly white. Absent from his analysis was the provocations consistently made by the Black Hebrew Israelites. The group had been spewing hatred aimed at numerous ethnicities, and religious groups. Yet, in the reporting, almost any recognition of this offense behavior, let alone condemnation of the group, is absent. For the mainstream press, it is enough that there was a confrontation and white kids involved wearing MAGA hats. Obviously, the Trump supporters must be to blame. 

By:  William J. Kovatch, Jr. 

Note:  I used to consider myself a Republican until Trump won the nomination in 2016. I am no supporter of Trump, or of the Republican Party, which appears to be full of nothing but sycophants. Nonetheless, I refuse to jump on a popular band wagon when a full analysis of the facts points in a different direction. The true problem with modern American journalism, I believe, is laziness. Just report the same line you were programmed to believe over and over. I pray greater objectivity comes back to American press soon.

Can Trump Declare a National Emergency to Build His Wall? The Answer Is a Little More Complicated than Trump Would Like You to Believe.

It has been about three weeks since President Trump refused to sign legislation that funded the government, but did not appropriate money for his border wall, causing a partial government shutdown. With 800,000 government employees poised to miss their first paycheck since the shutdown, Trump addressed the country on prime time TV to make his case for the wall.  The day after the televised statement, Trump met with Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer to discuss the possibility of re-opening the government.  According to Schumer, Trump pounded on a table and stormed out the room complaining that the meeting was a waste of his time when Pelosi made it clear she would not support Trump’s wall.  Schumer has referred to Trump’s behavior as rule by temper tantrum.

This week, a small number of House Republicans joined House Democrats in voting for a continuing resolution which would have re-opened the government without providing funds for the wall.  The support from House Republicans possibly signals growing pressure to end the shutdown and re-open the government.  In response, Trump has stepped up his talk of declaring a national emergency in order to fund the construction of the wall without congressional approval.  Trump has said multiple times that the law is 100% behind him in declaring the national emergency.

While the President may want the public to think that this is a simple question, under U.S. law, this is really two questions.  The answer to one may be simple.  The answer to the other may not.

The first question is whether the President has the authority to declare a national emergency.  In answering this question, it is important to keep in mind that the Constitution does not mention emergency powers of the President.  This means that the President would not have the unilateral authority to claim broader authority than those specifically granted through the Constitution unless Congress has acted. 

In this regard, through the National Emergencies Act of 1976, Congress granted the President the authority to declare a national emergency through a proclamation published in the Federal Registry. Thus, the answer to the first question is indeed simple.  Yes, the President may declare a national emergency.

But the President cannot claim unlimited powers through the declaration of a national emergency.  That is, he cannot use the declaration of a national emergency as a carte blanche power grab.  To the contrary, the powers available to the President are limited. To define the breadth of presidential emergency powers, it is again necessary to look to congressional action.

The National Emergencies Act of 1976 does not itself grant emergency powers to the President  Congress has passed numerous laws granting the President specific powers usable during a period of national emergency.  The National Emergencies Act was meant to define how the President may invoke the emergency powers granted by other statutes.

Before the President can use any emergency power granted by statute, the President must state the specific power to be used.  He can do this either through the original Proclamation, or through a subsequent Executive Order published in the Federal Register.

Determining whether the President may use the declaration of a national emergency specifically to build a border wall requires an analysis of numerous statues.  So far, in his public comments concerning the wall, Trump has identified the existence of construction projects that were included in the budget, but for which funds have not been spent or encumbered.

This points to two specific statutes Trump may be planning to invoke to fund his wall.  The first permits the reallocation of funds appropriated for military construction projects that have not yet been obligated:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

10 U.S.C. 2808.

The second permits the termination of an Army civil works project that is not essential for national and use the funds for Army civil works projects that are essential for national defense:

In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.

33 U.S.C. 2293.

The question that remains in the application of these statutes is whether the border wall is for the use of the armed forces, or is essential for national defense.

These are questions that are likely to be addressed through litigation should Trump invoke emergency powers to fund the building of the wall.  One hurdle to those who may challenge Trump’s actions is whether a federal court will even intervene to decide the issue.

There are times when a court has jurisdiction over a case, but nonetheless decides that it is not appropriate to issue an opinion.  This is called the doctrine of justiciability.  One such circumstance where a court may find a case non-justiciable is the political question doctrine.

The political question doctrine springs from the idea that courts may decide issues of law, but are not an appropriate forum for political issues.  The courts may find an issue non-justiciable as a political question, for example, when a matter is explicitly assigned to a particular branch of government through the Constitution,  The Constitution explicitly grants Congress the power to declare war.  As a result, courts are not likely to review such a declaration of war.

The political question doctrine may be invoked where the court could not resolve an issue without expressing a lack of respect for a coordinate branch of government, where it is impossible for a court to devise a manageable standard to resolve the issue, where the resolution of the issue first requires a policy decision that is beyond the discretion of the court, and whether there is a possibility of embarassment that varying policy decisions would be made by different branches of government.

This is not to say that the courts will never question the President’s use of an emergency power.  To the contrary, in 1952 the U.S. Supreme Court addressed President Truman’s attempt to seize U.S. steel mills during a strike in order to provide a steady supply of steel for military use during the prosecution of the Korean War and found the action to be unconstitutional.  Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Concerning the merits of whether a national emergency exists, a federal court is likely to find that issue to be a non-justiciable political question.  One main reason is that Congress provided no criteria for determining when such an emergency exists.  In this circumstance, courts are likely to be uncomfortable to define the criteria that creates an emergency whole cloth, without further guidance from Congress.  Indeed, the lack of a definition of criteria could very well be intentional to allow the President flexibility in responding to a complicated situation that may need immediate action.

On whether the actual exercise of the power invoked is appropriate presents a different type of question.  Under either statute, appropriated but unspent construction funds cannot be reallocated for just any question.  They must be appropriated for a project necessary for national defense or for the use of the military.

The main intended purpose of the wall is to stem the entry of aliens into the United States who lack legal authority to come in.  That is an immigration issue.  The President has mentioned the need to stem the inflow of illegal drugs.  That is a criminal justice purpose.  The President has variously claimed that there is an imminent threat of the entry of known terrorists.  However, statistic undercut this argument.  Only a handful of known terrorists have been apprehending in recent years attempting to cross the southern border legally.  Thus, whether the wall is essential to national defense appears to be a question a court can decide with clear standards and without causing undue embarrassment to the coordinate branches of government.

Likewise, a court could easily determine which governmental department will use the wall.  The U.S. military is prohibited from enforcing domestic criminal law.  The military is not charged with enforcing immigration law.  That job falls to the Department of Homeland Security and the Justice Department.  Thus, again, the question may not be considered a political one.

Trump is correct that the law is behind him if he were to declare a national emergency concerning the inflow of undocumented aliens over the southern border.  But that does not mean that the specific invocation of powers would be an easy question.  To the contrary, the appropriation of funds for a border wall by reallocating budgeted but unspent funds for construction projects will likely spark complicated litigation.

By: William J. Kovatch, Jr.