Trump has dementia and must be removed from office

May 29, 2017

Trump is showing signs of dementia. Check out the clip of his presser with Netanyahu beginning at 3:45.

As it wrapped up, he stood up and wandered off as if he forgot where he was. Netanyahu stared at his back with a quizzical look on his face. Handlers approached Trump apparently intending to turn him around and direct him where to go. Trump suddenly seemed to recall where he was. He lifted both arms bent at the elbows with hands open and palms facing forward in the universal gesture indicating stop and listen. As the reporters stopped gathering their stuff and turned to pay attention, he blurted out that he never said, “Israel,” an apparent reference to his inappropriate disclosure of highly classified information about ISIS while bragging a week earlier about how good his intelligence was to Lavrov and Kislyak in the White House. Although he was criticized by US intel via the press for potentially burning a source within ISIS, he did not tell the Russians, and no one accused him of telling them, that Israeli intel shared that information with US intel. By denying that he he identified Israel as the source, he inadvertently confirmed that he had passed the information to the Russians.

Little wonder that the US intel community, and cooperating foreign intelligence services with which it shares information, no longer trust the 45th president of the United States.

I imagine that our intelligence community is screening what it shares with the Commander in Chief in order to preserve and protect their work product and working agreements with allied intelligence services. This is not an acceptable solution in a representative democracy where we elect our commander in chief.

“Houston, we have a problem.”

Seriously, folks. Love him or hate him, he is mentally incompetent and unfit to govern. All must put aside our differences for awhile and focus on removing him from office.


What is a “Person of Interest?”

May 26, 2017

The Washington Post and the New York Times reported last week that Donald Trump’s son-in-law, Jared Kushner, is a “person of interest” to the FBI in its investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” along with “any matters that arose or may arise directly from the investigation.” This includes false statements to investigators (18 USC 1001), obstruction of justice (18 USC 1503) and conspiracy to obstruct justice (18 USC 371).

Kushner is not a “person of interest” because it is a state law enforcement term that the FBI declines to use. The FBI says he is “under scrutiny,” which means he is a person of interest to the investigation, but not a “person of interest.” Confused? As a former criminal defense lawyer with 30 years experience defending people charged with felonies in state and federal courts, I can set you straight.

State law enforcement officials created the term to evade the Miranda rule and federal law enforcement officials declined to play that game.

A confession is powerful evidence of guilt, but only if it is voluntary. Coerced confessions are presumptively unreliable and inadmissible. The line between a voluntary and a coerced confession is indistinct and difficult to define.

To eliminate a well-documented state police practice of obtaining confessions from suspects during seemingly endless confrontational custodial interrogations, the SCOTUS created a new rule in Miranda v. Arizona, 384 US 436 (1966), that required police to warn suspects under arrest that they had a right to remain silent (Fifth Amendment) and a right to consult with counsel before answering any questions (Sixth Amendment). The rule further required police to obtain a voluntary acknowledgment and waiver of those constitutional rights from the suspect before commencing an interrogation. A statement obtained in violation of the rule is not admissible in court.

Many state law enforcement officials were furious about the Miranda rule and determined to come up with a work-around. They eventually decided to instruct police to avoid a situation that might be characterized as a “custodial interrogation” by doing the following:

  1. Refer to the suspect in official reports as a “person of interest” instead of as a suspect;
  2. Instead of placing the suspect under arrest, give him a cigarette and a cup of coffee while engaging him in a conversation that gradually turns into an interrogation, if he doesn’t confess;
  3. When cross-examined by defense counsel, insist that the POI was always free to go, until he confessed.

Jared Kushner is represented by Jamie Gorelick, a former Deputy Attorney General of the United States from 1994-97, during the Clinton administration. She has offered to make Kushner available to be interviewed, accompanied by counsel, of course. The interview will not be a custodial interrogation, so Miranda will not be implicated.

Federal prosecutors and the FBI use the following three categories to describe people they investigate:

  1. Target: a person (or persons) who is suspected of being a major participant in the crime as a boss, organizer or director of others;
  2. Subject: a person who is suspected of participating in the crime, but not as a director or major participant and is regarded as someone to potentially flip into cooperating with law enforcement to make the case against the target and testify against him before the grand jury and at the trial;
  3. Witness: a person who has information about the crime, but is not suspected of committing the crime (also called a fact witness).

Michael Flynn and Paul Manafort have been have been described as “subjects” of the investigation.

“Under scrutiny,” means that FBI investigators believe Kushner’s relationship to Trump (confidant and son-in-law) and his position as a Senior White House Advisor and gatekeeper to Trump (the “Trump Whisperer”) means that he has significant information relevant to their inquiry. The FBI has been following the money. The interview(s) will be wide ranging and include questions about documents. They will ask questions, despite knowing the answers, to determine if Kushner is telling the truth. If the investigators catch him in a lie, it’s a False Statement violation, a felony punishable by up to 5 years in prison pursuant to 18 USC 1001. A lie might also constitute obstruction of justice in violation of 18 USC 1503. If the FBI can prove that he acted with others to obstruct justice, he could be charged with conspiracy to obstruct justice in violation of 18 USC 371. Depending on the evidence the FBI uncovers, he might end up as a witness against the presumptive target of the investigation, the 45th president of the United States.

Finally, Trump’s new idea to set up a “War Room” at the White House, staffed by Kushner, Bannon and Corey Lewandowski, to fight back against leaks and the investigation sounds like a conspiracy to obstruct justice. Terrible idea from a universe far beyond stupid.


Abandon Ship Trumptanic is Sinking

May 11, 2017

Donald Trump fired FBI Director James Comey on Tuesday, the day after Sally Yates mortally wounded him, because he refused to end the Russia Gate investigation and pledge his loyalty to Donald Trump.

Donald Trump and his confidant, Attorney General Jeff Sessions, decided to conceal the reason for firing Comey by ordering Deputy Attorney General Rob Rosenstein to prepare a memo detailing mistakes Comey made in the run-up to the election. After receiving the memo, Trump and Sessions fired Comey and used the memo as the basis for firing him. Session’s participation in firing Comey for refusing to end the Russia Gate investigation was improper because he had recused himself from any role in the investigation.

Unable to resist the impulse to cover his tracks, Trump inserted the following exculpatory statement in his letter firing Comey,

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.

This statement is likely false. Comey testified before Congress that the FBI is investigating the Trump Campaign for possible collusion in Russia’s interference in the 2016 election and Trump is a likely target of that investigation. As a matter of policy, the FBI and the Department of Justice do not notify targets and subjects of investigations that they have been cleared or no longer are under investigation. Like a criminal defendant’s alibi that can be proven false, Trump’s statement may convict him if he should be prosecuted in federal court for obstruction of justice.

Adding insult to injury, Trump met yesterday at the White House with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak. The optics were terrible. Lavrov acted like the White House was his house. The U.S. Press was excluded from the meeting but Russian photographers were permitted to set up shop in the Oval Office and photograph the three men. Lavrov appeared to be the commanding influence.

Enough.

Republicans who continue to support Donald Trump are courting disaster. He’s going down. Continued support could result in indictments for obstruction of justice.


Sally Yates Mortally Wounded Trump Yesterday

May 9, 2017

Congress must appoint an independent counsel and commission to determine whether the Trump campaign colluded with the Russians to win the 2016 Election.

Former Acting Attorney General Sally Yates mortally wounded President Trump yesterday when she testified before a senate subcommittee regarding what she told White House Counsel Don McGahn when she warned him about National Security Adviser Michael Flynn. President Trump fired her two days later.

Although she declined to discuss what prompted her to warn McGahn, because the information is classified and the FBI is investigating Flynn, I think it’s clear from the available evidence that Flynn had 5 phone calls with the Russian ambassador on 12/29 to assure him that Trump was going to remove the sanctions that Obama had just imposed that day against Russia for interfering in our election. No other explanation makes any sense.

I think it’s also clear that Flynn lied to the FBI when they questioned him about those phone calls on 1/25, and that’s why Yates warned McGahn the following day that they had a national security problem with Flynn. Lying to the FBI is a felony pursuant to 18 USC 1001 and his lies made him potentially vulnerable to Russian blackmail because they had transcripts of those calls.

According to Press Secretary Sean Spicer, WH counsel told Trump about Yates’s concerns the next day.

After firing Yates on 1/30, Trump did nothing about the situation for 18 days until after the WaPo published its story about Flynn lying to Pence about the calls with the Russian ambassador. Trump fired Flynn, but blamed the media for forcing him to do it.

This 18 day gap may bring down Trump’s presidency.

Trump later said that, although he did not order Flynn to contact the Russian ambassador, he would have if Flynn had not already done so.

Considered by itself, this incident does not prove the Trump campaign colluded with the Russians to influence the outcome of the election, but it certainly raises serious questions that need answers. For example, Trump fired Sally Yates on 1/30, ostensibly because she refused to back his Muslim immigration ban. However, earlier that day, she had her final contact with the White House counsel about Flynn. Yet, Trump contacted the DOJ’s Office of Legal Counsel and ordered them to proceed with enforcing the Muslim travel ban without notifying Yates. In other words, he did not even bother to discuss her objections to the ban before he fired her. This makes no sense unless he had already decided to fire her because she was attacking Flynn. Therefore, I have concluded that he probably used her objection to his Muslim travel ban as a cover for protecting Flynn.

Trump benefited from Russian hacking and interference in the November 8th election and he invited the Russians at a press conference on 7/27 to hack into the Democratic National Committee’s computers. If Trump intended to cancel the reasonable and appropriate sanctions that Obama imposed on 12/29, I think Congress has a responsibility to find out if Trump assisted the Russians or merely reaped the benefits of their interference. As Flynn’s lawyer recently said in support of a request for immunity from prosecution, Flynn “certainly has a story to tell.” If Trump assisted, he should be impeached and prosecuted.

With few exceptions, Republicans have resisted efforts to determine whether the Trump campaign colluded with the Russians to interfere with the 2016 election to defeat Hillary Clinton and elect Donald Trump. Given their resistance despite Trump’s unwavering support of Putin and Flynn, we need an independent prosecutor and commission to get to the bottom of this scandal.


FBI recommends no criminal charges against Hillary Clinton

July 5, 2016

FBI Director James Comey announced today that the FBI has completed its investigation of Hillary Clinton’s use of a private email server during her tenure as Secretary of State. Even though the FBI found that she lied when she publicly denied emailing classified information, he said the FBI would be recommending that the Department of Justice not charge her with any crimes. Under the circumstances, the department will likely follow his investigation. Although the Bureau’s recommendation effectively ends the potential criminal case, it does not resolve the political controversy. With that in mind, let’s take a look at Comey’s findings.

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

/snip/

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

/snip/

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

Having found no evidence of intentional misconduct, the critical question was whether her conduct constituted “gross negligence.” Comey found that it did not. Instead, he found that she and the other people in the email chain were “extremely careless.” What is the difference?

Gross negligence is a legal term with a specific meaning. It’s an objective test. A person acts in a grossly negligent manner if her conduct constitutes a “substantial deviation” from the legal duty to exercise due care when handling classified information compared to the conduct of a reasonable person in the same situation.

“Extremely careless” is a subjective test because it’s not based on a comparison to the conduct of a reasonable person. What may appear to be extremely careless conduct to one person may not appear to be be extremely careless to another. Depending on the circumstances, extremely careless conduct may or may not constitute gross negligent conduct. The relevant circumstances probably include:

(1) the number of people in the email chain who received and transmitted the classified information and whether they were authorized to possess it (they were);

(2) the nature of the information transmitted (we don’t know because it’s classified);

(3) whether the information was intercepted by unauthorized third parties (it probably wasn’t); and

(4) how widespread the practice was (Colin Powell and Condoleeza Rice also did it)

I believe James Comey decided against charging Hillary Clinton because in his opinion her extremely careless behavior did not rise to the level of intentional or grossly negligent behavior.

I generally agree with the caveat that I do not know who was in the chain and what information was transmitted. Due to the political aspects of this case, I believe it should ultimately be decided in the court of public opinion by the voters in November.

Whether voters will hold her accountable for lying when she denied transmitting classified information remains to be seen.


Donald Trump is unfit to govern because he enthusiastically supports torture

June 30, 2016

Donald Trump reacted to the suicide bombings at the airport in Istanbul by claiming that we need to torture our enemies. MSNBC reports,

Trump seemed particularly annoyed that the United States feels the need to act lawfully. “We have laws; they don’t have laws,” the GOP candidate said last night in Ohio, adding, “Their laws say you can do anything you want and the more vicious you are the better.”

From there, Trump transitioned to emphasizing his support for barbarism. “You have to fight fire with fire,” he declared. “We have to be so strong. We have to fight so viciously. And violently because we’re dealing with violent people viciously.”

Trump added, “Can you imagine [ISIS members] sitting around the table or wherever they’re eating their dinner, talking about the Americans don’t do waterboarding and yet we chop off heads? They probably think we’re weak, we’re stupid, we don’t know what we’re doing, we have no leadership. You know, you have to fight fire with fire.”

I could not care less whether members of ISIS think we are weak and stupid. Their opinions are irrelevant. We will win the war against ISIS on the battlefield with superior military forces, tactics and weapons. We will win the hearts and minds of the people by fighting honorably and respecting the rule of law.

Torture, which includes waterboarding, is prohibited by international law. When used during witness interrogations, it does not reliably produce the truth. Instead, it produces confirmation of the interrogator’s suspicions. Used otherwise, it’s a manifestation of a psychosexual disturbance that will produce incalculable suffering, multigenerational hate, desire for revenge and war everlasting.

Donald Trump is unfit to govern because he does not understand the consequences of using torture. He is a one-trick pony who only thinks in terms of being meaner and nastier than his opponents. The world is not a junior high school playground and he needs professional help.


Trump lied when he accused Hillary Clinton of corruption

June 23, 2016

Trump based his accusation of corrupt behavior by the Clintons, regarding foreign financial contributions to the Clinton Foundation, on information in Clinton Cash, by Peter Schweiser. In Fact-checking the April 26 shows, ‘Clinton Cash’ published by PoliFact, Newt Gingrich made a similar claim. The authors wrote.

Robert Delahunty, a University of St. Thomas constitutional law professor who worked in the Justice Department’s Office of Legal Counsel from 1989 to 2003, also called Gingrich’s link between Clinton and the foreign governments’ gifts to the Clinton Foundation as “implausible.”

“The truth is that we establish corporate bodies like the Clinton Foundation because the law endows these entities with a separate and distinct legal personhood,” Delahunty said.


%d bloggers like this: