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FOCUS: Donald Trump Has Destroyed American Leadership - I'll Restore It |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=52077"><span class="small">Elizabeth Warren, Guardian UK</span></a>
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Monday, 09 December 2019 12:50 |
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Warren writes: "For seven decades, America's strength, security and prosperity have been underpinned by our unmatched network of treaty alliances, cemented in shared democratic values and a recognition of our common security. But after three years of Donald Trump's insults and antics, our alliances are under enormous strain."
Sen. Elizabeth Warren speaks to students and staff at Roosevelt High School in Des Moines, Iowa, on Oct. 21, 2019. (photo: Charlie Neibergall/AP)
Donald Trump Has Destroyed American Leadership - I'll Restore It
By Elizabeth Warren, Guardian UK
09 December 19
The president’s behavior at the Nato summit in London was as appalling as it was typical. Our next commander-in-chief will have important work to do
 or seven decades, America’s strength, security and prosperity have been underpinned by our unmatched network of treaty alliances, cemented in shared democratic values and a recognition of our common security. But after three years of Donald Trump’s insults and antics, our alliances are under enormous strain.
The damage done by the president’s hostility toward our closest partners was on full display at this week’s gathering of Nato leaders in London, which should have been an unequivocal celebration of the 70th anniversary of the most successful alliance in history.
The success of Nato was not inevitable, easy or obvious. It is a remarkable and hard-won accomplishment, and one based on a recognition that the United States does not become stronger by weakening our allies. But that is just what Trump has done, repeatedly and deliberately.
He treats our partners as burdens while embracing autocrats from Moscow to Pyongyang. He has cast doubt on the US commitment to Nato at a moment when a resurgent Russia threatens our institutions and freedoms. He has blindsided our partners on the ground in Syria by ordering a precipitate and uncoordinated withdrawal. He has attempted to shake down South Korea and Japan, evidently mistaking our security alliances for protection rackets. And he has wrecked US credibility by unilaterally tearing up our international agreements on arms control, non-proliferation and climate change.
This reckless disregard for the benefits of our alliances comes at a perilous moment, when we face common threats from powerful adversaries probing the weaknesses of our institutions and resolve. Longstanding allies in Asia are doubting our reliability and hedging their bets. Russia’s land grab in Ukraine has upended the post-1989 vision of a Europe “whole, free, and at peace”. The chaotic Brexit process has consumed our closest partners, while sluggish growth and rising xenophobia fuel extremist politics and threaten to fracture the European Union.
A mounting list of global challenges demand US leadership and collective action. As president, I will recommit to our alliances – diplomatically, militarily and economically. I will take immediate action to rebuild our partnerships and renew American strategic and moral leadership, including by rejoining the Paris climate accord, the United Nations compact on migration, and reaffirming our rock-solid commitment to Nato’s article 5 provisions.
But we must do more than repair what Trump has broken. Instead we need to update our alliances and our international efforts to tackle the great challenges of our age, from climate change and resurgent authoritarianism to dark money flows, a weakening international arms control regime and the worst human displacement crisis in modern history.
This means revitalizing our state department and charging our diplomats to develop creative solutions for ever more urgent challenges. It means working with like-minded partners to promote our shared interest in sustained, inclusive global economic growth and an international trade system that protects workers and the environment, not just corporate profits. And it means reducing wasteful defense spending and refocusing on the areas most critical to our security in years to come.
Alliances are not charities, and it’s fair to ask our partners to do their share. I will build on what former president Barack Obama started by insisting on increased contributions to Nato operations and common investments in collective military capabilities.
But I will also recognize the varied and significant ways that European states contribute to global security – deploying troops to shared missions, receiving refugees and providing development assistance at some of the highest per capita rates in the world.
The next president must tackle our common problems using the lessons of common defense. Together, we can counter terrorism and proliferation. We can make common cause in constructing new norms and rules to govern cyberspace. We can dismantle the corruption, monopolies and inequality that limit opportunity around the world and take on the increasingly grave threats to our environment.
We can and will protect ourselves and each other – our countries, our citizens and our democracies.
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FOCUS: The Trump Impeachment Hearings and Justice Antonin Scalia |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51459"><span class="small">Jeffrey Toobin, The New Yorker</span></a>
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Monday, 09 December 2019 11:50 |
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Toobin writes: "The outcome of the struggle to impeach President Trump remains in doubt, but one winner in the process is already clear: Supreme Court Justice Antonin Scalia, who died in 2016."
Justice Antonin Scalia. (photo: Supreme Court/Wikimedia Commons)
The Trump Impeachment Hearings and Justice Antonin Scalia
By Jeffrey Toobin, The New Yorker
09 December 19
 he outcome of the struggle to impeach President Trump remains in doubt, but one winner in the process is already clear: Supreme Court Justice Antonin Scalia, who died in 2016. As a scholar and a jurist, Scalia was the chief expositor of the judicial philosophy known as originalism. From beyond the grave, Scalia’s approach has dominated the impeachment debate, even among liberals. It’s a remarkable legacy, even if, on closer inspection, a troubling one.
What is originalism? Scalia himself gave a pithy definition. “The Constitution that I interpret and apply is not living but dead, or, as I prefer to call it, enduring,” he said, “It means today not what current society, much less the Court, thinks it ought to mean but what it meant when it was adopted.” All four law professors who testified at last week’s House Judiciary Committee hearing (the three who favored impeachment, and the one who did not) made originalist arguments to explain the meaning of the phrase “Treason, Bribery, or other high Crimes and Misdemeanors,” from Article II of the Constitution, which defines impeachable behavior. The professors canvassed the views of the Framers and trotted out the usual suspects—such as James Madison and George Mason—to support their positions. All three of those called by the Democrats even gave some air time to one of the more obscure Framers, William Richardson Davie, of North Carolina. During the debate on the Constitution in Philadelphia, in 1787, Davie said that, if a President could not be impeached, “he will spare no efforts or means whatever to get himself re-elected.”
Nancy Pelosi, the Speaker of the House, made the same kind of argument on Thursday, when she announced that the Judiciary Committee would draft articles of impeachment. “When crafting the Constitution, the Founders feared the return of a monarchy in America,” she said, and then went on to cite both Madison and Gouverneur Morris, who “feared that a President ‘may be bribed by a greater interest to betray his trust.’ He emphasized that ‘this magistrate is not the king; the people are the king.’ ”
There is nothing inherently objectionable about any of these views. By the standards of the Constitution, the phrase “high Crimes and Misdemeanors” is both unusually specific and, to modern ears, unusually opaque. It’s understandable to want to examine what the Framers meant when they wrote those words. But to pretend that divining their intent is the only acceptable way to interpret the Constitution—which was the subtext for much of the argument before the Judiciary Committee last week—is to court interpretive trouble. As Scalia’s definition implied, the opposing school to originalism is one based on a “living” Constitution, one whose meaning evolves with the society it presumes to govern.
The choice between these two approaches has enormous political content. As Scalia never tired of pointing out, the Framers did not believe that they were establishing a right to abortion or to same-sex marriage, and that, for him, ended the debate about whether such rights should be protected under the Constitution. But it’s chilling to consider that we might be bound forever not only to the words but to the world views of a group of eighteenth-century men—many of whom were slaveholders. That, however, is what originalism demands. And originalism presumes we can even figure out what the Framers thought about issues they never contemplated. (For example, Scalia’s majority opinion and John Paul Stevens’s dissent in District of Columbia v. Heller reached diametrically opposed conclusions about the original meaning of the Second Amendment.)
Even liberal Justices like Stephen Breyer and Elena Kagan have expressed some sympathy for originalism as a way of interpreting the Constitution. But they have also recognized that a changing society may demand changing views of an unchanging text. A “living” view of “high Crimes and Misdemeanors” might be welcome, as well. Given the vast reach of the contemporary Presidency—Presidents have engaged in warfare without congressional authorization, for example—we might want a broader scope for the impeachment power. That’s a worthy discussion to have. To assert that the debate about any provision of the Constitution can be settled for all time by inquiring into the lost spirits of the Framers demeans both their work and our lives.
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What Congress Should Consider in Drafting Articles of Impeachment |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=52494"><span class="small">Barbara McQuade, Lawfare Blog</span></a>
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Monday, 09 December 2019 09:33 |
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McQuade writes: "As prosecutors quickly learn, charging documents serve not only to inform the accused of the charges against him or her but also to frame the evidence and persuade fact-finders of the need to hold the accused accountable. With those goals in mind, here is a prosecutor's guide to drafting charges against Trump."
The U.S. Capitol building at night. (photo: Flickr/Victoria Pickering)
What Congress Should Consider in Drafting Articles of Impeachment
By Barbara McQuade, Lawfare Blog
09 December 19
 s the House Judiciary Committee begins to draft proposed articles of impeachment against President Trump, the committee should be mindful of the significance of its work. As prosecutors quickly learn, charging documents serve not only to inform the accused of the charges against him or her but also to frame the evidence and persuade fact-finders of the need to hold the accused accountable. With those goals in mind, here is a prosecutor’s guide to drafting charges against Trump.
What’s the Purpose?
Prosecutors are trained to begin with the end in mind, and to consider at the outset the purpose of a criminal prosecution—to protect public safety, to deter charged individuals and other members of society from engaging in similar conduct, and to rehabilitate offenders or to punish them.
Here, the goal of impeachment is not to punish Trump for past misdeeds or to reverse the outcome of a prior election, but to protect the country’s future—especially with the 2020 election looming. The public needs to be protected from a president who continues to invite foreign interference into U.S. elections. Indeed, Trump’s July 25 telephone call to Ukrainian President Volodymyr Zelensky came just one day after Special Counsel Robert Mueller testified before Congress about the Trump campaign’s conduct in welcoming election assistance from Russia in the 2016 election. When a president works to rig elections, Americans can’t count on the electoral process to remove him.
Impeachment is also necessary to deter Trump and others from engaging in similar abuses of power in the future. Deterrence is needed in at least three categories: inviting election interference, risking national security by withholding military aid, and obstructing Congress by refusing to comply with subpoenas. Impeaching Trump for this conduct sends a message that such behavior will not be tolerated in the future. Likewise, failing to impeach Trump for these actions sets a precedent that will permit all future presidents to engage in similar behavior with impunity.
How Many Counts?
In every case, prosecutors wrestle with how many counts to include. Both over-inclusion and under-inclusion have risks. The risk of over-inclusion is confusion of the issues and dilution of the more powerful evidence. When I attended training for new federal prosecutors, we were taught that the U.S. government rarely loses cases because the jury does not believe its case; instead, losses come when the jury does not understand the government’s case. Including too many counts is risky because this requires too many facts and too many legal issues for people to comprehend.
In addition, the inclusion of a weak count can tank the whole case. Three good counts in an indictment can be poisoned by a fourth weak count because it allows the defense to focus attention there, raising skepticism about the entire case. Why give critics a talking point when even one count of conviction will do?
By contrast, the risk of under-inclusion is that fact-finders are unaware of the full scope of bad conduct and, consequently, may be willing to give a pass for the misconduct of which they are aware. Had they known about the additional criminal conduct, however, they may have decided that the totality of misconduct was just too much to overlook.
How Broadly Should the Articles Be Framed?
One issue House members face is whether to limit the articles to Trump’s dealings with Ukraine or to instead include other conduct, such as matters investigated by Mueller and apparent violations of the Emoluments Clauses of the Constitution. Reporting indicates that House Democrats are divided on this issue.
The Mueller report makes a compelling case that Trump obstructed justice in 10 different ways—for example, the conclusion that the president directed White House Counsel Don McGahn to create a false document to conceal Trump’s order to fire Mueller. House Judiciary Committee Chairman Jerrold Nadler’s opening remarks at the Dec. 4 hearing suggested that the committee is at least considering including obstructive conduct from the Mueller investigation.
In addition, lawsuits have been filed accusing Trump of violating the Constitution’s Emoluments Clauses, which prohibit gifts or payments from foreign governments and payment other than his salary. Trump’s profits from his hotels patronized by foreign delegations could arguably violate the constitutional restriction on foreign payments. Using Trump’s hotel in Scotland for accommodations for U.S. service members and using Mar-A-Lago as the “Winter White House” might violate the provision against payments other than the president’s salary.
But just because a crime was committed does not mean that a prosecutor must charge it. Instead, prosecutors use their discretion and decide whether a substantial public interest would be served by bringing the charge.
In the impeachment context, before the Ukraine story broke, the majority of voters seemed unpersuaded that Trump’s conduct as described in the Mueller report constituted impeachable conduct. Likewise, the emoluments allegations had not moved the needle on impeachment before the Ukraine scandal became public. Including articles of impeachment about this conduct is likely only to confuse the issues and detract from the serious misconduct that can be alleged regarding Ukraine. Keeping the articles limited to conduct relating to Ukraine would make for a more understandable and compelling case without the risk of diluting the strong counts with weak ones.
The risks of being under-inclusive are mitigated here, because the nature of impeachment proceedings makes them different from criminal charges in one important respect. In a criminal trial, juries usually know nothing about the defendant before them. If charges about particular misconduct are not included in an indictment, then the jury will never know about it. In an impeachment proceeding, by contrast, the jury is the U.S. Senate, to whom the president’s past behavior is well known. While senators will base their decision at trial on the articles of impeachment that are before them, it is impossible to un-ring the bell with regard to information known to them about Trump’s conduct toward Russia, obstruction of justice, emoluments and all manner of other bad conduct in office. For that reason, the risk of under-inclusion is lessened in impeachment proceedings, a fact that favors a less-is-more approach.
Criminal Statutes or Abuse of Power?
As several law professors stated in their testimony before Congress, impeachment articles need not allege violations of criminal statutes to amount to “Treason, Bribery or other high Crimes and Misdemeanors,” the constitutional standard for impeachment. For that reason, the articles may include criminal conduct, but they need not.
Drafters of the impeachment articles seem likely to include bribery because it is specified in the Constitution as a basis for impeachment. Bribery, defined as soliciting a favor or benefit in exchange for influencing an official act, seems to fit Trump’s conduct: He asked for announcements of investigations in exchange for military aid and a White House visit.
But rather than trying to satisfy technical statutory requirements such as “quid pro quo,” and allowing Republicans to quibble over legal definitions and factual conclusions as to whether one thing was conditioned on the other, House members would be wise to frame the articles more broadly in terms of abuse of office—which is at the heart of impeachable conduct. The law professors testified that the greatest fears of the framers were foreign influence, subverting elections and abuse of power to promote personal interests. Here, drafters could make a compelling case that Trump’s conduct has made all of those fears come true.
What to Charge?
When considering the goals of protecting the public and deterring corrupt behavior, three appropriate articles of impeachment emerge: (1) inviting foreign influence in U.S. elections, (2) risking harm to national security by withholding military aid for personal reasons and (3) obstructing Congress in its oversight function.
Testifying before Congress, Noah Feldman argued that inviting election interference alone is an impeachable offense on the grounds that foreign influence would corrupt our election process and allow adversaries to control the leadership of our country. Rigging an election is particularly harmful because elections then become inadequate as a way to remove a corrupt president from office. Here, Trump allegedly invited interference into the presidential election when he asked Zelensky to publicly announce investigations into Trump’s political rivals. It is enough that Trump sought interference in the fair administration of elections by inviting a foreign government to become involved in the U.S. presidential election, even if it is not tied to withholding military aid and a White House visit. This conduct alone should be the basis of an article of impeachment.
In addition to election interference, drafters should also frame the articles in terms of harm to national security. By withholding the release of nearly $400 million in military aid to Ukraine, the president arguably violated the Impoundment Control Act of 1974, a post-Watergate law that prohibits the executive branch from withholding spending authorized by Congress. While President Trump has authority to determine foreign policy, he has yet to articulate a sound policy reason for withholding the aid, and testimony from government officials suggests there was none. President Trump has argued that he had general concerns about corruption in Ukraine, but those arguments are belied by the testimony of State Department official David Holmes, who reported that U.S. Ambassador to the European Union Gordon Sondland said that Trump does not “give a sh-t about Ukraine” and cares only about “big stuff that benefits the president,” such as the Biden investigation. In freezing the aid, it is a fair inference that the president corruptly put his own political interest ahead of the interests of the country. Congress authorized the military aid to help Ukraine defend itself following Russia’s 2014 invasion of Crimea, which Russia still occupies. Helping Ukraine is essential to protecting Europe from Russian aggression and is part of long-term U.S. foreign policy. Failing to contain a U.S. adversary harms U.S. national security by allowing the Russian threat to grow. Withholding aid that was promised also harms U.S. credibility as a reliable partner with our allies around the world, and undermines American efforts to promote democracy by fighting corruption. Even if the delay of military aid were not tied to the demand for investigations, this conduct, standing alone, is impeachable.
Finally, the articles of impeachment should also include contempt of Congress. Early on, Trump vowed that he would be “fighting all the subpoenas.” He has refused to comply with subpoenas for witnesses and documents, and has used the courts to stall—perhaps hoping that if he can push the day of reckoning to a time that is very close to the November election, he can run out the clock. This is an astonishing display of contempt for a co-equal branch of government.
When Trump’s supporters complain of a lack of evidence for impeachment, they should be reminded that the cause is an obstructive president. In some proceedings, when one party prevents the other from obtaining evidence, the court permits an adverse inference that the evidence would have been damaging to the uncooperative party. Trump’s recalcitrance interferes with the House’s ability to conduct its oversight function and violates the president’s oath of office to support and defend the Constitution and to take care that the laws be faithfully executed. His contempt for the authority of Congress offends our tripartite structure of government. To deter such behavior in the future, this obstruction should be a basis for a third article of impeachment.
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If the purposes of impeachment—protecting the public and deterring this president and future presidents from engaging in similar conduct—are kept in mind, the articles practically write themselves. Impeachment is not about reversing the results of an election. It is about removing from office a president whose conduct poses a threat to American democracy and proclaiming that certain types of misconduct by a president will not be tolerated in this country.
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Bernie Sanders' Broadband Plan Is Comcast's Worst Nightmare |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51717"><span class="small">Karl Bode, VICE</span></a>
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Sunday, 08 December 2019 14:19 |
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Bode writes: "Sanders promises to break up media monopolies, restore net neutrality, and embrace the countless towns and cities that are building their own broadband networks."
Sen. Bernie Sanders has managed to emerge from a heart attack with higher poll numbers and more momentum than he had before. (photo: Carlos Gonzales/Star Tribune/AP)
Bernie Sanders' Broadband Plan Is Comcast's Worst Nightmare
By Karl Bode, VICE
08 December 19
Sanders promises to break up media monopolies, restore net neutrality, and embrace the countless towns and cities that are building their own broadband networks.
T&T, Verizon, and Comcast executives aren’t going to like Bernie Sanders’ new broadband plan.
The wide ranging proposal, released Friday morning, would all but demolish big telecom’s stranglehold over the broadband and media sectors, unwinding decades of unrelenting consolidation, imposing hard new limits on how much broadband providers can charge for service, while opening the door to significantly broader availability of community broadband.
The proposal pulls no punches when it comes to the U.S.’ broadband woes.
“Telecom and cable monopolies exploit their dominant market power to gouge consumers and lobby government at all levels to keep out competition,” the proposal notes.
“Just four companies control nearly two-thirds of the entire market,” it continues. “Prices are as much as 25 percent higher than they would be in a competitive broadband market. Large ISP monopolies report inaccurate or overstated coverage information, obscure their prices, and often don’t deliver promised speeds.”
Tech policy conversations in 2019 have focused predominantly on breaking up “big tech” giants like Facebook. And while that may be justified, such myopia has let folks forget about the threat posed by “big telecom.” Sanders’ broadband proposal reverses that trend sharply.
The plan would restore the FCC’s authority and net neutrality rules stripped away by the Ajit Pai FCC, subjecting ISPs to far greater oversight. It also proposes banning ISPs from imposing arbitrary and unnecessary usage caps and overage fees, which critics have long said are little more than punitive price hikes on captive customers.
But Sanders’ plan also spends a lot of time advocating for community broadband. First by proposing $150 billion in new funding to aid the growing roster of towns and cities that have begun building their own networks after years of industry neglect. Secondly by eliminating the 19 protectionist state laws big ISP lobbyists have used to try and crush those efforts.
“Municipalities across the country running their own internet services have proved they can deliver high-quality service at a fraction of the price of established monopolies,” the proposal states.
“Bernie believes it’s time to stop relying on profit-focused corporations to get to universal broadband,” it adds, noting his administration would “provide the necessary funding for states, cities, and co-ops to build out their own broadband networks, and ensure all households are connected by the end of his first term.”
Sanders’ proposal also takes aim at the telecom sector’s habit of jacking up your broadband and cable TV bill via a roster of obnoxious, sneaky fees. Such fees routinely allow your ISP or cableco to advertise one rate, then sock you with far higher costs when the bill comes due. It’s a practice DC lawmakers have ignored for nearly a generation.
Sanders also targets the telecom and media industry’s relentless thirst for consolidation, most recently exemplified by the controversial T-Mobile Sprint merger. Historically, mergers like AT&T’s 2018 acquisition of Time Warner and Comcast’s 2011 merger with NBC Universal have one consistent outcome: higher rates for both consumers and competitors.
The Sanders plan promises to reverse that trend by undoing past megadeals, and blocking “vertically integrated” mergers between telecom monopolies and media giants.
“We will break these monopolies up and closely regulate them to ensure they are providing consumers with acceptable service, and eliminate hidden fees, surprise bills, and other consumer-gouging practices,” the proposal pledges.
The Sanders proposal also tackles telecom’s bad behavior on the privacy front by restoring the FCC’s 2016 privacy rules, which were demolished by Congress in 2017 after extensive lobbying by the telecom sector. That in turn directly contributed to the lack of accountability for the wireless carrier location data scandals revealed by Motherboard earlier this year.
The plan also takes aim at the FCC’s recent failure to protect consumers in the wake of devastating hurricanes like Irma and Maria, proposing far more robust telecom infrastructure capable of weathering the climate catastrophes to come.
“With our $150 billion investment in resilient, affordable, publicly owned broadband infrastructure, we willI ensure that communities stay connected during natural disasters,” the plan said. “This communications infrastructure will ensure first responders and communities are ready to deal with the worst climate emergencies.”
Promises are of course one thing. Following through on them is another. Pushing the lion’s share of these proposals through Congress will be all but impossible without a dramatic shake up, given AT&T, Verizon, and Comcast’s lobbying stranglehold over both houses, and, quite frequently, both political parties.
Still, the Sanders’ team broadband plan is nightmare fuel for telecom giants, who for the better part of three decades have been allowed to rip off American consumers with relative impunity.
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n Monday, Justice Department Inspector General Michael Horowitz 
