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More Thoughts on the Mueller Report

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Robert Mueller was in a quandary. On the one hand, qualified legal opinion prevented him from prosecuting a sitting President for criminal acts. On the other hand, his investigation had uncovered compelling and substantial evidence that the President had sought to obstruct justice and tamper with witnesses in multiple federal investigations into Russian interference in the 2016 US elections. Even determining that a crime had been committed could potentially weaken a future case against the President because it could be argued that the President was unfairly slandered when there was no official venue for him to clear his name or defend his integrity. Mueller therefore did the only thing he could do. He reported the facts and evidence in his investigation into obstruction of justice by the President without drawing a conclusion about whether his actions constitute a crime.

Mueller offers four reasons for conducting a thorough investigation without prosecuting the President or even determining whether he committed crimes.

  1. The Office of Legal Counsel (OLC) in the Justice Department issued an opinion that a sitting President could not be prosecuted because it would undermine his ability to fulfill the duties of his office. Since Mueller’s investigation was for the Department of Justice, he chose to abide by that opinion. The Constitutional duty of determining whether the President committed crimes and prosecuting them falls on the Congress, with the House of Representatives bringing articles of impeachment and the Senate acting as a judicial body for the trial.
  2. The OLC’s opinion still permits an investigation, and Mueller had broad authority under the Department of Justice to pursue his investigation wherever the evidence might lead. Since the OLC’s opinion applies only to a sitting President, charges may still be brought once he is no longer in office. A thorough and comprehensive investigation now preserves the evidence for later prosecution. This gives new meaning to Trump’s reiterated wishes that he might be President for life.
  3. Since no charges could be brought, it would have been unfair to determine that the President had committed a crime. Under normal circumstances, prosecution and public trial provides an opportunity for the person accused of a crime to explain their actions and present exculpatory evidence. The courts have held, for example, that naming persons in an indictment without also charging them violates their right to clear their name in a public trial.
  4. Despite being unable to bring charges or determine that a crime was committed, the investigation was unable to find that the President did not commit obstruction of justice. If they had, they would have said so. “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

The facts and evidence presented in volume 2 of the report show that the President repeatedly and consistently sought to interfere both in the FBI’s investigation into Russian hacking of the 2016 election and in the special counsel’s subsequent investigation. He sought to influence FBI Director Comey’s conduct of the FBI’s investigation, eventually firing him because he could not obtain the result he sought. He also sought to curtail the Mueller investigation and urged witnesses to lie to investigators. The evidence is substantial and well-documented. The President even made public statements about his intentions.

The case against the President is serious and substantial. Charges stemming from it—if they are ever filed—would constitute federal felonies. Some members of Trump’s campaign and administration have already been charged with similar crimes and pleaded guilty or been convicted. Some are currently serving terms in federal prison. The question still to be decided is, “What are we, the People, going to do about the President?”

For many Trump supporters, of course, none of this makes any difference. They have already doubled-down on their support for him so many times that they are now blind and deaf to any fresh allegations of crimes he may have committed. It is all a conspiracy by the deep state. Even a cursory examination of Robert Mueller and his investigation, however, shows that such ideas are utterly unfounded. It would be hard to find a man of greater integrity in the conduct of his office. His investigation was thorough, painstaking, and by the book. If you have any doubts, read his report. Of all men living, only Trump could slander Mueller and be widely believed.

For the rest of us, our elected representatives in Congress have been handed a detailed case for impeachment. The only impediment to starting impeachment proceedings is political. Democrats have both a hope and a fear. They hope to win enough Senate seats for a majority in the Senate. They fear that impeachment proceedings could sway the election next November in Republicans’ favor. They might also be holding impeachment in reserve in case Trump wins a second term. If he does not win, he very probably will face charges in federal court. There will be no opinion from the Office of Legal Counsel to hold back federal attorneys from prosecuting him.

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Why I Am Voting for Hillary Clinton

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“Then it came burning hot in my mind, whatever he said, and however he flattered, when he got me home to his house, he would sell me for a slave.” -Pilgrim’s Progress by John Bunyan

I am a conservative. I say this because it is true, though some may doubt it. I have always been conservative, always slow to accept change, always cautious, always preferring the tried and true to the new and exciting. People have come to accept certain policy positions as conservative and others as progressive, but in actuality it is not policy positions that define whether you are conservative or progressive. It is something more like temperament. My daughter, Libby, for example is a natural progressive. She enjoys the thrill of rising to a challenge, putting out a fire, or rescuing our dog from the river. She will be inclined to press for change just to see what will happen. I am more inclined to advocate for the status quo for fear that what will happen will involve more effort or unintended outcomes.

When it comes to policy positions, I am harder to classify. I am pro-life because I believe unborn children deserve opportunities to grow and develop as much as born children do. I am opposed to the death penalty. It serves no rehabilitative purpose, and as punishment, it is cruel and severe. It is also too often unjust. I am a feminist because I believe women are people who deserve the same respect and autonomy accorded to men. I support relatively open immigration because I believe a continuing influx of new people with fresh perspectives and ideas can only make America stronger. Besides, if you are worried about losing your job to an immigrant, you should know that they don’t have to come here to take it. For the most part, I am in favor of policies that help people and opposed to those that harm them. I believe most people are good—not in the absolute, theological sense—but in the common, quotidian sense that most people are eager to be well-thought of and act accordingly. You can trust most people most of the time as long as you don’t tempt them too sorely. Strangers will help you. The clerk will run after you if you forget your change.

It is because I am a conservative with a generally positive view of people that I intend to vote for Hillary Clinton for President. She is the most conservative candidate from a major party. She represents the status quo. She will, for the most part, continue the policies of the Obama administration. Those policies have generally been good for the US. They have lessened the impact of the recession. They have strengthened the United States globally. They have encouraged people to seek redress of grievances through democratic means.

Some of my friends, relatives, and acquaintance who have fed themselves on right-wing “news” sites will not see any truth at all in what I just wrote. They will have heard nothing but evil of Barack Obama and Hillary Clinton. They will blame her for the deaths of four Americans in Benghazi. They will claim that her use of a private email server while Secretary of State jeopardized national security. They will point to rumors and conspiracy theories about her, claiming that there is no smoke without a fire. Some may even point to prophets who admonish us that a vote for Hillary will help usher in the Great Tribulation. Most of these claims are either completely without foundation or wildly exaggerated. Hillary Clinton is not evil—or at least no more evil than the average politician seeking to do the job they were elected or appointed to do.

Lastly, there are some who will see Donald Trump as a conservative candidate. There is nothing at all conservative about Trump. He has threatened to jail Hillary Clinton, though she has been found guilty of no crime. He has threatened to muzzle the press, despite its being protected by the first amendment. He has threatened to treat Muslims as potential terrorists, despite that being a violation of the freedom of religion and rights to due process. He has threatened to suspend the rule of law and impose his will by force if necessary. He has hinted that his followers should lead an armed rebellion if he is not elected. He has confessed to having said vile things about women and treating them as objects available solely for his own gratification. There is nothing conservative in any of these threats or actions. If allowed, he would overturn our centuries-old traditions of deciding hard issues by ballot and replace it with a system of rule by fiat. His one and only aim in everything he does is to glorify Donald Trump. There is no one on earth he admires more than himself. His is no ordinary self-interest, but an all-consuming desire to be universally acclaimed as the best, the brightest, the greatest man who ever lived. He is not a conservative but a radical, advocating for radical changes in our country, our government, and our way of life.

Some see these changes as a return to glory days of yore, but there is no going back. You can’t unscramble an egg; you can’t put the omelet back in the shell. The hard-fought gains made by people of color and women and gays and lesbians and other marginalized groups will not be easily yielded up because President Trump says so. The nation cannot be made more Christian by discarding all the teachings of Jesus Christ and replacing them with laws to make people act as they ought. Trump cannot do the things he has promised. If he tries, he will fail but not without wasting a lot of resources on grandiose pipe dreams.

Of course, I can’t tell anyone who to vote for, and there’s no way to prevent some from thinking I’ve succumbed to some kind of liberal spell. I have not. My mind is in good working order. More than that, my sense of decency is utterly repulsed by Trump. Clinton is not the best possible candidate for President, but she will be a pretty good one, and she is undoubtedly qualified.

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Why Gun Legislation Does Not Matter

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Since the tragedy at Sandy Hook, plenty of Facebook friends have weighed in on the need for gun control or gun safety laws. Some have been well-reasoned. Most have been incendiary and polarizing. Against them and equally polarizing have been defenders of the second amendment, most adamantly refusing to admit a need for any kind of regulation beyond what we already have. Except for passing on a few moderate articles, I have stayed out of the fray. But now I feel I can contribute something in a small way.

Significant change in gun control is not going to happen. The Constitution does not allow it, and the Supreme Court has consistently held that the second amendment, whatever its authors may have intended, means that individual citizens have a right to own guns. Some changes are likely, but they will not be significant. Here are the changes I expect to see along with reasons why they are unimportant. The stated aim of most of these proposals is to decrease the likelihood of another Sandy Hook. None of these proposals can actually fulfill that aim.

  1. Ban on assault weapons. This is likely to happen simply because it happened before. It did not make a difference then, and it will not make a difference now. Any ban is likely to take the form of a ban on sales. It will have no effect on assault weapons already owned. Estimates put the number of assault weapons in the US between 3 and 4 million. The transfer of such weapons by sale would become illegal, but since there is no way to enforce a ban on private sales, they would likely continue anyway.
  2. Restrictions on magazine size. This may happen because it is reasonable. No one who owns a gun for sporting purposes or for self defense needs a 30-round clip. (Of course, it is possible to imagine scenarios where a large clip would come in handy, but lets stick to reality.) Limiting magazine size, however, would not be an effective deterrent to someone determined to quickly kill a lot of strangers. It takes only a couple of seconds to eject an empty clip and install a new one. Those couple of seconds might be a window of opportunity for a trained officer armed and able to respond, but for unarmed people cowering behind any available cover, they are meaningless. In addition, there would be sales of extra capacity clips—legal or not—to circumvent the law.
  3. Background checks. Background checks have a lot of popular support because we obviously don’t want to sell guns to known felons or folks with a history of violent mental illness. The problem here is the sheer number of guns already in existence. Access is not a problem either for criminals or for the mentally ill. Forty-seven percent of households reported owning a gun in 2011. Twenty-nine percent own more than one. With more than 300 million guns already in private hands, chances are good that the next Adam Lanza already lives in a household with multiple guns.
  4. Waiting periods. The idea behind a waiting period is to prevent heat-of-the-moment shootings. You learn that your girlfriend is having an affair with your best friend, so you run out to K-Mart and buy a pistol and shoot them. If you have to wait seven days before you can take possession of your new gun, chances are you might re-think your future and decide on a less final solution. The problem here is that mass shootings usually require careful planning and preparation. A short waiting period is no deterrent at all if what you aim to do is prevent mass shootings.
  5. Registration. This is perhaps the most contentious potential regulation. It is also the one most likely to make a difference. Gun rights advocates fear that this is first step toward confiscation. Require registration of firearms in order to build a federal database of gun owners. Then when the time is ripe, use the database to seize the vast majority of civilian-owned weapons. Gun control proponents scoff at this scenario, pointing to licensing and registration of vehicles as an analogy. If a registration law does go into effect, it will likely affect only new sales, not existing ownership, not only because of the power of the pro-gun lobby, but because enforcement costs for implementing a law requiring registration of existing firearms would be too high. Moreover, many people would no doubt refuse to comply. In any case, a national firearm registry would not act as a deterrent to someone planning a mass shooting.

Gun violence is an intractable problem in the US. On the one hand, we have a long tradition associated with the second amendment that guarantees citizens the right to gun ownership. On the other, we must acknowledge that easy access to guns has made America less safe rather than more safe. Gun rights proponents are fond of saying that the only effective deterrent to a bad man with a gun is a good man with a gun. That is wild west thinking, good guys and bad guys, bang-bang! you’re dead. But for many of us, and especially for those of us who do not own a gun, the good man with a gun is the police officer or soldier who is paid to protect us. In truth, the only effective deterrent to a bad person is a good person. The gun is peripheral.

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