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Senate Trial of Donald J. Trump Could Embarrass the U.S. Supreme Court

Implications for the Role of Chief Justice John Roberts

The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money. America is great because she is good. If America ceases to be good, America will cease to be great.

Alexis de Tocqueville, French Diplomat              

Introduction

The U. S. House of Representatives created two articles of impeachment based on 645 pages of solid evidence. Now because of this these articles were passed on December 18, 2019 against Donald J. Trump. A trial is planned to take place in January 2020 before the United States Senate as part of their Constitutional duties and requirement.

Moscow Mitch and Leningrad Lindsay have publicly declared that they are not unbiased and have already made up their mind to acquit the President of wrongdoing by declaring that impeachment is a political process, not a legal process.

It is true that impeachment is primarily a political process. But does that necessarily mean politics reigns supreme over any and all legal issues or concerns? I think not! Legal issues go way beyond the relative importance and whimsical or waggish nature of politics.

The public expects a real trial, not a kangaroo court or quasi- judicial farce. If a jury foreman or other juror in a real trial was to stand up and publicly announce his/her intention to acquit a defendant in advance, before even opening statements, the presiding judge would censor and remove that juror(s).

Politics after all is based, at its root or primary level, on value judgments. But underlying values or ideology is not the same thing as evaluating solid data, or evidence that might support, or not support, allegations made against a President.

Aside from the above statement the United States Constitution calls for the Chief Justice of the U.S. Supreme Court to preside over an impeachment trial. Why would the Founding Fathers think it important to have a Chief Justice present and oversee an impeachment trial, if they only considered impeachment to be solely a political process? In fact, why call in the Judicial Branch at all if it’s only a political process?

They did so because the Founding Fathers knew that a fledgling democracy could be contaminated and compromised by individuals in any of the branches of government. They knew it wasn’t a perfect system; but they believed that the best way to protect the government from a corrupt branch involve all three branches of government at the same time as a check on each other. This philosophical stance was the basic underlying idea behind wanting three branches of government in the first place. Impeachment was only one of their concerns. The overall operation of a democracy was at the forefront of their fears and concerns. Alexis de Tocqueville is important here to what I’m explaining, but is beyond the scope of this Blog.

The Republicans in the forthcoming trial of Donald J. Trump want to run roughshod over the proceedings and the nation. They want to negate and totally minimize evidence presentations (new or old evidence) and do everything in their power to prevent witnesses from testifying. The role of the Chief Justice in such a process would be reduced and would totally emasculate John Roberts, or at best, have the Chief Justice serve only in a manner that can only be described as “window-dressing.” This would be an embarrassment to the U.S. Supreme Court.

But all of this runs counter to what the Founding Fathers really wanted—fair and impartial jurors and the presentation of real evidence. All of this puts the Chief Justice of the Supreme Court in an embarrassing and untenable position. He’s damned if he does, and damned if he doesn’t conduct the trial in a serious and legally well-reasoned manner.

Relevant Article

Recently, I found an article from TIME that describes the embarrassment issue and difficulty for John Roberts to serve in such an impeachment trial controlled by the Senate.

 

Why Impeachment Could Be a Nightmare for Chief Justice John Roberts

By Tessa Berenson, October 31, 2019

 

“The impeachment inquiry has so far unfolded largely as a fight between Congress and the White House, with federal courts weighing in occasionally. But if the House moves to impeach President Donald Trump, thus triggering a trial in the Senate, then the chief justice of the United States will be drawn in to oversee the proceedings. That would put John Roberts, a man known for his temperance and modest view of judicial power, in an uncomfortable place: at the direct center of a bitter political battle.

     It’s not a job the reserved judge will likely relish. For Roberts, who famously said Supreme Court justices should merely “call balls and strikes,” overseeing an impeachment trial would force him to engage very publicly in helping determine the fate of the president who has called him an “absolute disaster.” It will also put the Supreme Court’s fragile reputation of being above politics on the line—an issue that’s dear to Roberts and that could have ramifications for the high court for years to come as it fights to preserve public confidence in its work.

     “I can think of no task I think the Chief wants less than to have that thrust upon him,” Megan Brown, partner at Wiley Rein, said at a Federalist Society panel on Oct. 2.

There’s no way for Roberts to get out of it; his role in any impeachment trial is mandated by the Constitution. Article I Section 3 reads, in part: “When the President of the United States is tried, the Chief Justice shall preside.” The framers named the chief justice to preside over an impeachment trial to highlight the gravity of the process, and the move had a practical component. The Vice President is the leader of the Senate, but in the case of an impeachment trial, he has an extraordinary conflict of interest: he would take over the presidency if the Senate trial results in a conviction. The appointment of the chief justice to oversee the trial eliminates that problem.

The last chief justice to oversee an impeachment trial encountered a stylistic clash between the Supreme Court and the Capitol across the street. Former Chief Justice William Rehnquist, for whom Roberts once clerked, oversaw the impeachment trial of President Bill Clinton in 1999. “I underwent the sort of culture shock that naturally occurs when one moves from the very structured environment of the Supreme Court to what I shall call, for want of a better phrase, the more freeform environment of the Senate,” he told senators at the time, according to CNN.

That contrast may be particularly pronounced in the case of Roberts, who has been outspoken about his belief that the judiciary should not wade into political matters. During his opening statement in his confirmation hearing in 2005, Roberts extolled the virtues of “humility” and “modesty” in judges. “Judges are like umpires. Umpires don’t make the rules; they apply them,” he said. “The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

But in an impeachment trial, Roberts would be required to weigh in on questions about evidence and administrative procedures in a process that is both highly broadcast and inherently political. “Roberts has told us that he doesn’t want the court involved in politics and that the court should stay away from divisive 5-4 decisions,” says Josh Blackman, associate law professor at South Texas College of Law Houston. But in an impeachment trial, he added, Roberts wouldn’t be able to make decisions alongside eight other justices: “It’s just him.”

While there are risks for the chief in assuming the central role in an impeachment fight, those who know him say there are opportunities, as well. “This will provide a setting in which the chief justice will be able to show the importance of neutrality and impartiality in our judicial system,” says one of Roberts’ former clerks. “Especially in a context in which there might be a lot of turbulence and a lot of politics involved, I suspect that he will present a picture of a judge in the middle of it all, trying to keep the process fair.”

If a House vote does indeed trigger a move to the Senate, Roberts will be presiding over the legislative branch’s trial during a fraught time for both Congress and the Supreme Court. In 2017, Senate Majority Leader Mitch McConnell changed the rules on Supreme Court confirmations, requiring only a simple majority, rather than the traditional 60 votes, to confirm a justice. The move has had enormous political ramifications. In 2018, Justice Brett Kavanagh was confirmed with just 50 votes, along near party-lines, after he was accused of sexual assault. (Kavanagh denies the allegations.) Perhaps partly as a result of McConnell’s rule change and Kavanagh’s subsequent confirmation, Americans are now viewing the nation’s highest court through an increasingly partisan lens.

In August 2019, there was a 26 percentage point difference between how Republicans and Democrats viewed the court, among the widest it has been over the past two decades, according to Pew Research Center.

     Roberts has also tangled publicly with Trump. After Trump attacked what he called “an Obama judge” who ruled against his administration’s asylum policy in 2018, Roberts issued a rare statement. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

     Roberts also faces more mundane logistical challenges. If lawmakers follow the procedures from the last impeachment trial, it would run six days a week—during a time that the Supreme Court’s work may be continuing apace. The Supreme Court has plenty of its own work to do. This term, it agreed to hear its first major abortion case since Kavanagh took the bench, and it will hear arguments about Trump’s termination of the Deferred Action for Childhood Arrivals (DACA) policy, among other high-profile cases. In Roberts’ absence, Justice Clarence Thomas, the most senior associate justice, would fill in for him in the top role at the Supreme Court. “You can imagine it could make Chief Justice Roberts’ life a little busy, if he’s got two full time jobs,” Carrie Severino, chief counsel and policy director at Judicial Crisis Network, said at the Oct. 2 Federalist Society event.

     Roberts has acknowledged the current pressures facing the court. “We don’t go about our work in a political manner,” Roberts said in New York City in September. “The point is when you live in a politically polarized environment, people tend to see everything in those terms,” Roberts continued. “That is not how we at the court function and the results of our cases do not suggest otherwise.”

     The challenge for Roberts will be to maintain that reputation amidst what promises to be a partisan melee. “We have a very political process that’s about to blow up in his face,” says Blackman, “whether he wants it or not.”

Final Comments

The point of this Blog is to bring attention to the fact that the fine reputation of the United States Supreme Court is at stake in a trial such as that of Donald J. Trump. This is a serious matter for the nation to consider. It may be that the potential squabbling between a democratic House of Representatives and a Republican Senate people will find entertaining. Entertainment may be a side effect, but the proper administration of justice is the real issue at hand. It would be wise for each citizen watching the trial unfold to understand the importance and seriousness of an impeachment trial.

The United States Supreme Court is a distinguished body of judges whose reputations for analyzing legal data with integrity are well known. It is not unprecedented for a judge in a normal everyday trial to vacate the verdict of a jury in the interests of justice if conditions warrant such an action.

In any event Chief Justice John Roberts needs to take command of the Trial. He needs to be in the driver’s seat, not Moscow Mitch.

We all have biases (including myself) based on the value judgments we all make. Value judgments are an almost inescapable aspect of life when one grows up in any culture. Breaking out of culture over time is most often done by progressives who have a vision of the future. Breaking out of culture norms goes by another name—social change.

Besides a future vision cultural dissatisfaction may play a role for progressives as well as conservatives. Historically conservatives almost always fight against change in all its forms. But it is a temporary fight because eventually yesterday soon becomes today and today soon becomes tomorrow. Said another way, change is inevitable.

It is ironic to notice that 90 years ago conservatives fought tooth and nail to prevent that crazy idea and belief that the country needed to protect the citizenry against calamities like the Great Depression of the 1930s. That crazy idea eventually became the Social Security Act of 1935. Conservatives lost that war with President Franklin Delano Roosevelt. In 2020, just try to rescind the Social Security Act of 1935. Socially conservative individuals would have a fit now if anyone tried to touch this long standing social program. Once it was a fear of social change; now Social Security has become the normative nature of “all things” today.

The truth is conservatives have, and always will be, on the short end of the stick where social change is concerned. They react; they are not proactive in their thinking. They are always behind the curve of social change.

It must be noted that social change by itself is neither good nor bad. It is simply change reinforced by changing values. How values change over time is complicated and deserves its own Blog to explain its complexity. Because human behavior is influenced by changing values and its complexity just consider for yourself one topical area for your mind to question or mull over. That question is—how has technology itself and social media impacted social behavior and changing social values? That ought to keep you thinking for a month as to how to answer it!

It will be entertaining to observe the trial of Donald J. Trump. The “Jim Jones, David Koresh, or Charles Manson” cult nature of the current Republican Party has caused a Constitutional crisis. The “Brown shirt” mentality of strict obedience to just one man by the Republican Party (like the Brown shirts and Adolf Hitler) gives the widespread impression that the goose-stepping Republican Party is very odd and very strange indeed, bordering on criminogenic behavior.

Is it possible the Donald J. Trump trial will be devoid of political histrionics? I’m generally an optimistic person by nature. But I think the televised trial is too great an opportunity for the Republican Party to miss creating (to be polite) much mischief as the cameras begin to roll.

The Republicans want to “Rubber Stamp” his innocence before the trial even begins. Party Republicans aren’t the only ones who want to rush to judgment in the trial. Trump supporters nationwide can also be branded as the contingency of voters that “See No Evil, Hear No Evil, and Speak No Evil” where Donald Trump is concerned (All Trump supporters share this characteristic).

It is true that all Trump supporters are not alike. In this author’s opinion they tend to form two distinct groups: (1) those who are ideological in nature who identify with Trump personally. These people may be very similar to Trump in terms of personality traits like The Authoritarian Personality or have become “True Believers” who will follow him anywhere, even to the dark side, and (2) a more pragmatic group of Trump supporters who want something from Trump in return for their vote. These people tend to want Trump to improve the economy and jobs, the bread and butter issues.

Because of these self-interests, pragmatic Trump supporters are willing to overlook Trump inadequacies such as his overall lack of a moral compass, ambivalence towards deviant groups in society, his incessant tweets or vulgarity, his proclivity for lying, nepotism, unsavory friends (like Jeffery Epstein or Paul Manafort), and his philandering ways. Ironically, the Economy is great today because of Obama policies that were put into place to deal with the Financial Crisis of 2008 and 2009. Interest rates have been dropping ever since. The economy’s success today has nothing to do with Donald Trump whose trade policy wars are hurting America’s farmer’s all over the country.

If Donald J. Trump survives the Impeachment Trial in January 2020, I predict his political value as a leader of the Republican Party will continue to decline anyway. Not being thrown out of Office will hardly be viewed as a victory by his supporters. If the Democrats resurrect the Mueller Report with all the evidence already established (and any new impeachment charges) they will pass additional charges for impeachment right up to Election Day, 2020. Donald J. Trump faces criminal charges once he leaves the presidency. If he is not re-elected in November 2020, he will be indicted in New York the very next day.

There is a reason Donald J. Trump doesn’t want his tax returns released to the public. He declared bankruptcy 3 times and after that, no banks in the United States were willing to give him a loan. Do you know who did come around and finally fund Donald J. Trump? Can you guess? It was the Russian Oligarchs with Vladimir Putin’s support. Like the late conservative American radio broadcaster Paul Harvey used to say at the end of each broadcast news report, “And now you know— the rest of the story.”

 

 

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