Unrestrained abuse of power an odd ‘not impeachable’ theory

CNN: Republican theory for Trump acquittal could unleash unrestrained presidential power

Impeachment was meant to punish Donald Trump’s unrestrained use of his authority, but the grounds on which Republican senators plan to acquit him may instead give him a green light to use his power however he wants to win reelection.

Trump’s GOP defenders looking to end his Senate trial in the next few days are increasingly arguing that it’s time to shut things down because even if Trump is guilty of coercing Ukraine for political favors, such conduct would not be impeachable.

“For the sake of argument, one could assume everything attributable to John Bolton is accurate and still the House case would fall well below the standards to remove a president from office,” South Carolina Sen. Lindsey Graham said in what his office says is his definitive impeachment statement.

Sen John Barrasso, a member of the GOP Senate leadership, added: “Even if everything in the book is true, it doesn’t rise to the level of impeachment.”

And Sen. Mike Braun of Indiana said: “It’s not even getting close to getting something that’s impeachable.”

These statements aren’t surprising. Republican senators were saying they wouldn’t vote for impeachment before the trial started.

They are seizing on stunning arguments envisioning almost unchallenged presidential power and highly limited criteria for defining the abuse of power and impeachment laid out by a maverick member of Trump’s legal team, Harvard Law professor Alan Dershowitz.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his re-election is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“Every public official that I know believes that his election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

If a president thinks that it is ‘in the public interest’ that they be re-elected then anything goes? I would expect that president thinks that their re-election is more in the public interest than an opponent. But that shouldn’t justify any abuse of power they want to try – impeachment is supposed to provide a check on presidential abuses of power.

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest. It invites and opens the door to anything that is in the realm of foreign influence.”

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr.

In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Dershowitz tried to clarify his argument via Twitter:

They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything. I said nothing like that, as anyone who actually heard what I said can attest.

Let me be clear once again (as I was in the senate): a president seeking re-election cannot do anything he wants. He is not above the law. He cannot commit crimes. He cannot commit impeachable conduct.

But a lawful act— holding up funds, sending troops to vote, braking a promise about Syria—does not become unlawful or impeachable if done with a mixed motive of both promoting the public interest and helping his RE-election. Please respond to my argument , not a distortion of it.

Under the Manager’s overbroad theory of motivation – the theory to which I was responding – Joe Biden (who I admire and like) would be guilty even if a small part of his motivation for having the Ukraine prosecutor fired was to protect his son or his son’s company.

I believe Joe Biden is a patriot who cares deeply about the national interest, but he also cares deeply about his family. Under the Manger’s dangerous theory, he would have to be psychoanalyzed to determine the role each motive may have played in an entirely lawful action.

The Manager’s theory takes us down a dangerous road.

Another dangerous road is giving an unstable president the green light to do whatever he thinks is in his re-election interests (which of course he will think is in the public interest.

From U.S. presidential impeachment: (Wikipedia):

Article II, Section 4 of the U.S. Constitution limits the grounds of impeaching a president to “Treason, Bribery, or other high Crimes and Misdemeanors”. Because the precise meaning of the phrase “high crimes and misdemeanors” is not defined in the Constitution itself, it is left open to the interpretation of Congress, especially since the U.S. Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. Congress has, however, identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive:[1]

  1. Improperly exceeding or abusing the powers of the office.[1]
  2. Behavior incompatible with the function and purpose of the office.[1]
  3. Misusing the office for an improper purpose or for personal gain.[1]

Other than the above constitutional provisions, the exact details of the presidential impeachment process are left up to Congress. Thus, a number of rules have been adopted by the House and Senate and are honored by tradition. Among them, The House Practice: A Guide to the Rules, Precedents and Procedures of the House, prepared by the House Parliamentarian, is a reference source for information on the rules and selected precedents governing the House procedure.[2]

The Senate has formal Rules and Procedures of Practice in the Senate When Sitting on Impeachment Trials.[5] Nevertheless, both the House and the Senate are free to modify the procedures for each presidential impeachment and trial, respectively.[1]

So the politicians can change the rules to suit their own interests. This makes impeachment more of a political contest than a legal process, and that seems to be how the current impeachment is working in practice. Trump thinks he can break ‘rules’ as he sees fit, and House and Senate politicians can make the trial rules as they see fit – no doubt with more than a bit of an eye on their own re-elections, which of course they will think is in the public interest.

It is looking likely that the senate ‘trial’ won’t even get as far as hearing from witnesses.

Pelosi seems resigned to an acquittal.

If Trump is acquitted, be will no doubt see it as a major victory. It could give him the confidence that he can get away with doing anything, and to an extent this is likely.

But Trump may also try to avoid the adverse publicity that further abuses of power may initiate, especially in an election year – unless he thinks that voters will view abuses of power as strong leadership.

 

Russell McVeagh abuse report due out today

Hints of “shocking abusive bullying” and “abuses of power” seem to have leaked out in advance of the review of alleged sexual abuse and abuse of power at Russell McVeagh.

RNZ: Russell McVeagh review details to be released today

RNZ understands the review details incidents of “shocking abusive bullying” and “abuses of power”.

Partners at the firm have been walked through the findings in a fraught meeting with Dame Margaret Bazely, with some left in tears.

The review is looking into the sexual harassment claims of 2015/2016 and the firm’s response, any other sexual harassment claims or any other improper conduct and the firm’s response to those claims, the firm’s standards, systems and policies relating to the management of staff, the firm’s implementation of those policies and whether they adequately safeguard staff from sexual harassment and the culture of the firm.

The review will be made public at 10am. Following the release, Dame Margaret Bazely will brief Russell McVeagh staff.

RNZ details the background to revelations being released:

  • On 14 February, Newsroom published a story detailing three sexual assault complaints involving interns and two older male lawyers at leading law firm Russell McVeagh. It was reported the incidents took place two years ago. That summer there were ten clerks on the summer intern programme. Five of the clerks were female and they declined full-time job offers from the firm after the programme.
  • In the following days, Victoria University confirmed several of its students on internships at Russell McVeagh reported being sexually assaulted by lawyers. The police were involved but no charges resulted.
  • At the time, Russell McVeagh senior partner Pip Greenwood said the firm’s board was aware of the allegationsand conducted an internal investigation. The men involved no longer work at the company, she said.
  • Just over a week after the initial story broke, new allegations were made of inappropriate sexual conduct between university students and senior lawyers at Russell McVeagh. In a social media post, AUT law lecturer Khylee Quince said the Auckland University students described an evening where there was heavy drinking between students and lawyers, leading to sex on a boardroom table.
  • At the Ministry of Business, Innovation and Employment’s annual review in late February, National MP Melissa Lee raised questions over the government’s continued use of Russell McVeagh.

If the pre-release reports are accurate it sounds like tough times for Russell McVeagh.

At least it appears to be being addressed, so some good may come out of this if it is dealt with properly by the law firm.

Newsroom also pre-empt the release of the report: Four things the Russell McVeagh review must address

Questions have been raised about when Russell McVeagh knew and responded to allegations ranging from sexual assault to rape by five summer interns. The claims relate to at least two incidents and involved two lawyers employed by the firm at the time. Bazley has been tasked with reviewing and giving recommendations relating to the allegations, plus Russell McVeagh’s policies around sexual harassment and the wider culture of the firm.

The main things Bazley’s report must address:

  1. How Russell McVeagh handled the complaints
    Russell McVeagh has ensured the review is independent, but there is no indication whether Bazley has been given full and complete access to all of the firm’s records.
  2. Reference for one of the men involved
    One of the lawyers went on to work at Duncan Cotterill, the other went on to share an office with other lawyers.Duncan Cotterill said it had no idea of the allegations at the time the man was hired. Duncan Cotterill said it was led to believe by a reference check that the incident was minor.
  3. Continuing to use one of the men for legal work 
    One of the men was receiving Russell McVeagh work once he left the firm. Russell McVeagh told Newsroom it was ethically obliged to keep him on a case, even though the law firm had to ban female staff from working on that account and bar the former senior staffer from attending meetings at its office.
  4. Why Russell McVeagh did not inform the Law Society 
    The Law Society was first informed of the claims in October 2016 when one of the women told the society, almost 10 months after the incidents. The firm’s partners may have breached their legal obligations under the Lawyers Conduct and Client Care Rules by failing to report the alleged misconduct immediately.

We may or may not get answers to these questions today.

Key “didn’t deliberately intend” to abuse power

It’s been established as un-denied fact that Prime Minister John Key pulled a cafe waitress’ hair on a number of occasions.

Key has apologised for it, and has said it was “very very silly”, but has denied he misused his power. He has said it was the opposite, he was trying to put people at ease in an informal setting.

From a Thursday report on 3 News – Key’s hair-pulling raises behaviour questions:

Mr Key has publicly apologised to waitress Amanda Bailey, 26, for persistently pulling her ponytail while visiting her Auckland cafe over the last six months.

The embarrassing apology was prompted by Ms Bailey’s contribution to the left-wing Daily Blog website yesterday, in which she accused the Prime Minister of harassing and bullying her.

At first she believed it was playful – Mr Key sometimes pretended it was his wife Bronagh who did it – but she then informed Mr Key’s security that one day she would snap and punch him in the face.

Mr Key mocked her when she raised it personally with him and it left her crying frustrated tears because she felt tormented and powerless, she said.

When quizzed by reporters at Los Angeles Airport, Mr Key said he had been joking around with the waitress.

“There’s always lots of horsing around and sort of practical jokes and that’s all there really was to it,” he said.

The media has had limited access to Key as he was travelling to Gallipoli. On Friday 3 News reported:

Mr Key admitted misreading the situation and says he understands why it’s causing concern.

“When these things play out later on they look a lot more serious, people take other readings from it and I understand that and I take responsibility for that,” he told reporters when he arrived in Turkey today for the Gallipoli centenary commemorations.

“I’m pretty casual and laid-back … playing along a little bit, and that’s very, very silly on my part… I should have read the situation more accurately. I’ll learn from the experience.”

So he has conceded he was at fault and it had been “very, very silly on my part”.

It doesn’t appear to be online but on 3 News last night Key explained further, in response to a question from Patrick Gower:

Gower: When you accepted you got it wrong, do you accept that you misused your power?

Key: No, because I didn’t deliberately intend to do that, it was the opposite. I intended to try and be in a much more informal sort of setting so that I put people at ease and we could have a bit of a laugh and have a bit of fun so it’s really opposite.

But I accept that that’s an interpretation that someone could get.

News reader: Key said in the cold light of day he accepts what he thought what was kidding around did not seem that funny later.

This may be played on The Nation this morning.

There have been many claims of abuse of power, sexual abuse, misogyny and bullying.These seem to be overstating the situation at best.

The effect of Key’s actions is in part of bullying but his explanation sounds reasonable, bullying wasn’t his intent, it was inadvertent. He was trying  to be an ordinary person goofing around.

But as Prime Minister he can never be seen totally as an ordinary person. Key will always have a non-ordinary status, no matter how hard he tried to be seen otherwise.

And he accepts that he went too far, and accepts that what he did could be seen as an abuse of power.

As has been said before one person’s buffoon can be another person’s arsehole, and a recidivist buffoon can become an arsehole.

Key appears to get this.

This has been embarrassing for Key, it has caused some people to see him differently and it may have an ongoing impact on him and his popularity.

It’s an easy avenue of ridicule and it’s certain be used as a persistent means of attack by some opponents.

But unless something else is revealed, or if court action succeeds (experts have said that’s unlikely), it shouldn’t do any further damage.

Another story has emerged out of this, how some left wing activists have played the story. That will be covered in the next post.

In case it gets deleted

Commenting at The Standard is always precarious, knowing that deletes and bans can be doled out at any time while lprent and other commenters abuse with impunity. An insidious imbalance of power.

No one deemed ‘enemy’ is immune.

Naki man:

“What team rules did Catton break, alwyn?”

How about treason
ungrateful [Deleted – we have standards even if you and Plunkett do not – MS], that about sums it up.

Calling her an ‘ungrateful cow’ was deemed to be beneath The Standard standards. But Lynn Prentice soon demonstarted that there are double standards. In response:

Oh piss off you complete jerk.

To allow people to have the opportunity to state what their opinions are is exactly why I volunteered into the army.

Having gutless stupid gits like you slagging off people because they speak their mind is exactly why I would like to kick bigoted arseholes like you and Sean Plunket out of my country.

You are a stupid dickhead..

He joined the army to protect his right to slag people off with he edit/ban finger hovering?

In his next breath he took aim at me:

Sean Plunket is in my opinion a rather stupid arsehole, a blowhard who clearly is incapable of thinking, and the type of fuckwit bigot who makes me ashamed of ever having put on uniform to defend him.

He is an absolute disgrace of a kiwi. My bet is that he has never bothered to do much for his country. He appears to be the type of shiftless bastard who only ever helped himself – a neolib fuckwit. Hopefully he will rot in hell.

And you are not much better.

I don’t know if Plunket fought for his country to protect the right to abuse people. I suspect Prentice didn’t exactly fight for his country either. He certainly doesn’t fight for free speech.

It’s a cardinal sin (a breech or blog policy) to criticise authorsd and moderators at The Standard and I’ve been banned before for criticising their abusive double standards and abuse of power.

I’ve always used YourNZ to put things on public record that are at risk of disappearing elsewhere so that’s what I’m doing here.

Reference Taxpayers Union Press Release on Eleanor Catton

StandardAndPaul

And Paul is appropriately promiment there. He must have been on their stalker roster last night. Seven times on that one thread he tried to disrupt me. And he did similar with others, including targetting Wayne Mapp. Attack and disrupt and  blame the target for derailing the thread. Ironically his first hit was “Warning. Peter George is attempting to derail the thread.” He’s learnt that off others, it’s a Standard tactic.

Such is free speech on The Standard.

Prentice: “To allow people to have the opportunity to state what their opinions are is exactly why I volunteered into the army.”

He must have spent his time in the Army peeling spuds, he certainly doesn’t seem to have learn anything about abuse of power or free speech.