Joe Fahey

This past June the United States Supreme Court in the decision titled Dobbs v. Jackson, overturned Roe v. Wade a 50 year old precedent that established a woman’s right to reproductive treatment was, for the most part, between her and her physician.
Whether one is pro-choice or pro-life, the ultimate determination in this decision is that a woman has a lesser right to privacy than a man.
As a country we have not faced such a situation since 1920 when the 19th Amendment to the United States Constitution was passed guaranteeing women the right to vote.
A woman’s right to reproductive freedom was rooted in the 14th Amendment right to privacy most prominently enshrined in a 1965 United States Supreme Court decision titled Griswold v. Connecticut. In that decision the Court invalidated a Connecticut law that made it unlawful for married couples to obtain and use contraception. In its 7-2 decision the Court determined that there was a right to privacy implied in specific provisions of the Bill of Rights such as those in the First Third Fourth and Fifth Amendments to the United States Constitution and that those various guarantees created “zones of privacy.”
The right to privacy established in Griswold would form the basis of later Court decisions. In Lawrence v. Texas the Court ruled that the right to privacy protected adults engaged in private consensual sexual behavior in a Obergefelll v. Hodges, it ruled that the right to privacy afforded the right to same-sex marriage. Now, all of these decisions and the right to privacy itself, are in danger of being overturned according to the concurring opinion of Clarence Thomas in the Dobbs decision.
In that opinion Thomas called for the Court to re-examine these precedents and the principle that the 14th Amendment enshrines a right to privacy. ( Notably, and for obvious reasons, Thomas did not include the Court’s decision in Loving v. Virginia, which overturned state prohibitions on interracial marriage.)
In 1890, one-hundred and thirty-three years ago, future United States Supreme Court Justice Louis Brandeis published an article in the Harvard Law Review titled The Right to Privacy. In that article, Brandeis and his co-author, Samuel Warren, first advocated for “the right to be left alone.” Almost three decades later, in 1928, Brandeis would enshrine this principle in his dissenting opinion in Olmsted v. United States. There, he wrote;
“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution under took to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”

This became the bedrock of the right to privacy later enshrined in Griswold and its progeny.

I adhere to the belief that no government federal or state has any business determining who we are allowed to marry, what takes place in the privacy of a bedroom between two consenting adults, what contraception is sought by couples from their doctors, or whether a woman or a couple make their decision to carry an unwanted pregnancy to term.

An intrusion into these decisions, in every instance, should be eclipsed by the “right to be left alone.”

After the end of World War II, the Allied victors, Britain, France, Russia and the United States held a conference to decide how to deal with the Holocaust and other Nazi war crimes. The War had begun on September 1, 1939 for most of the world but Russia was late to the alliance since it had a non-aggression pact with Hitler until he invaded her on June 22, 1941.
When the Allies conferred, it was decided to convene a War Crimes Tribunal to prosecute those officials in the Nazi regime that were responsible for the conduct of the war. While Hitler and his inner circle had committed suicide in his bunker as the Allies closed in, there were still a number of high -ranking Nazi officials.
Criminal culpability would not be limited just to those that directed the extermination of the Jews and other targeted groups but would be extended to those who waged “aggressive war” and provided the industrial capability to arm the war machine and spread its propaganda.
Twenty major figures from the Nazi regime were chosen for prosecution. The Chief of Staff of the High Command, Command officers of the German Army, Navy and Air Force were selected. The three major propagandists were also included. Similarly, central economic planners, Minister of War Economy and Minister in charge of forced slave labor were charged. The Nazi Foreign Minister was included along with the Minister in charge of Occupied Territories who presided over the killing, looting and theft of property belonging to those that had been conquered. The Minister in charge of security which included the Gestapo and the head of the Hitler Youth were also in the prisoner’s dock.
After a lengthy trial spanning two years, seventeen of them were found guilty with one in absentia.
Ten of the war criminals were sentenced to death. They included the Chief of Staff High Command, Chief of the Armed Forces, Chief of the Air Force, the Foreign Minister, the Minister of Occupied Territories, the Minister of occupied Austria, The Minister who supplied forced slave labor, the Minister in charge of security and the Gestapo, and all of the ministers that furnished propaganda for the Nazi regime.
Hitler’s Deputy was sentenced to life imprisonment along with his Economic Czar and the Chief of the Navy.
The head of the Hitler youth was sentenced to twenty years imprisonment along with the Minister for Central Planning and Armament.
The least sentence imposed was ten years for one of the Naval admirals.
At this writing the Russian invasion of Ukraine is in its sixty-fifth day. Throughout this time, the world has seen Russia commit war crime after war crime. Russian troops have bombed civilians, shelled hospitals, targeted children and executed the elderly. They have raped women and children. They have looted museums and people’s homes. They have attempted to cover up these atrocities through the use of mass graves and mobile crematories.
The world has not seen this national depravity since the fall of Berlin in 1945.
At this writing there is no end in sight. Stymied by the Ukrainian defense of its country, Putin has appointed General Aleksandr Dvornikov as the commander of the Russian Forces invading Ukraine. Dvornikov is known as the “Butcher of Syria” for the war crimes and atrocities he committed there. Putin’s selection of Dvornikov signals that the worst atrocities are yet to come.
When this travesty concludes, accountability must occur. A War Crimes Tribunal like that held in Nuremberg is required or this criminality will become the new normal.
Putin, Dvornikov, Sergei Lavrov, the Russian Foreign Minister, Dmitry Medvedev, Deputy Chairman of the security Council, Defense Minister Sergei Shoigu, Army Chief of Staff, Valery Gerasimov and any other ministers or oligarch who made this atrocity possible need to join Putin in the Prisoners Dock at a War Crimes Tribunal.
After they have set foot in the Prisoners Dock, they need to set their feet on gallows.

For almost 250 years the numbers 1776 have been considered an emblem of the United States bid for freedom from England. They have now taken on a more sinister meaning since the events of January 6, 2021 when a mob stormed the Nation’s Capitol building in an attempt to thwart the counting of electoral votes certifying the election of President Joseph Biden.

In the days immediately following the insurrection reports of newly elected congressional representatives giving tours to unnamed, unidentified people the day before the riot trickled out into the news media. Congresswoman Lauren Boebert denied giving any tours to insurrectionists but admitted to giving tours to “family members” on January 2nd and 3rd. Yet on the day of the insurrection, she tweeted that “today is 1776” and that House of Representatives Speaker of the House, Nancy Pelosi had been removed from the House Chamber and the members were locked inside of it, despite having been told by the House Sergeant of Arms not to post anything to social media.

Congressman Jody Hice (R-Georgia) also tweeted on January 6, hours before Congress convened, that “What is done today will be remembered. This is our 1776 moment.” What was meant by the references to 1776 was open to much speculation in the days, weeks and months following the rioting and insurrection. Then, on February 14th of this year, much greater clarity was shed on the true meaning of these tweets by elected members of Congress. On that day an indictment was filed against leaders and members of the “Proud Boys,” a far-right anti-immigrant, racist organization, charging them with conspiracy to commit various crimes and the commission of those crimes in connection to their activities and conduct leading up to the events that occurred at the Capitol on January 6, 2021 and on that day.
On page 5 at paragraph 14(c) of the indictment it is alleged;
“…the defendant Ethan Nordean is alleged to have posted on social media on November 20, 2020 “’We tried to play nice and by the rules, now you will deal with the monster that you created. The spirit of 1776 has resurfaced and has created groups like the Proud Boys and we will not be extinguished. We will grow like the flame that fuels us and spread like the love that guides us. We are unstoppable, unrelenting and……now unforgiving. Good luck to all of you traitors of this country that we so deeply love…you’re going to need it.’”
Further on in the Indictment on page 12 at paragraph 41 it is alleged that
“Between December 30 and December 31, 2020 Tarrio communicated multiple times with an individual whose identity is known to the grand jury On December 30 this individual sent Tarrio, a nine-page document titled ‘1776 Returns.’ The document set forth a plan to occupy a few ‘crucial building’ in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol with ‘as many people as possible’ to ‘show our politicians We the People are in charge’ After the document was sent the individual stated ‘ The revolution is important than anything.’ Tarrio responded, ‘That’s what every waking moment consists of…I’m not paying games.’”

Finally, on page 23 of the indictment at paragraph 106 it is alleged that on January 6th the day of the insurrection;
“At 2:57 p.m. Tarrio posted a message on social media that read ‘1776’ and then ‘Revolutionaries are now at the Rayburn office building’ which referred to a House of representatives’ office building that had been referenced in the ‘1776 Returns’ plan received by Tarrio on December 30, 2020 had received.”

It now becomes very clear that the references to “1776” in the tweets of the various Republican Congressional member that day were not idle, random commentary on the events to unfold that day but were recognition of the plot hatched by the Proud Boys and their accomplices to stage an insurrection to try and overturn the election results. In this context the “tours” led by Boebert and others in the days before it, deserve more and deeper scrutiny.

Indeed, it is becoming increasingly clear that additional scrutiny should be focused on additional members of Congress and their possible involvement in the events of January 6th. This past October, Rolling Stone magazine published an article that reported that two organizers of the January 6th protests admitted meeting with Representatives Marjorie Taylor Greene (R-Ga.), Paul Gosar (R-Az), Mo Brooks (R-Ala.), Madison Cawthorn (R-NC), Andy Biggs (R-Ga.), Louie Gohmert (R-Texas), Boebert and others in planning the protests of January 6.

At this writing it appears that the probes by the House of representatives Select Committee and the Justice Department have widened and encompasses the conduct of Steve Bannon, Roger Stone and the usual collection of felons that are part of Trump’s Circle. It has even focused on the wife of Supreme Court Justice Clarence Thomas’s wife, Ginni.

As we continue to learn more, I can’t help but feel that Benedict Arnold showed more loyalty to this country.

During World War II, the Nazis had two English speaking propagandists, Lord Haw-Haw and Axis sally. The Japanese also had an English speaking one too. Their mission was to broadcast fake news to the Allied troops so that their claims would undermine their fighting morale.
For those who doubt the concept of reincarnation, one need only turn on Fox News to see that they are, once again, among us. I refer, of course to Tucker Carlson, Laura Ingraham and Maria Bartiromo.
Last month, Carlson, in his best Lord Haw-Haw fashion declared that Democrats believed that Americans had ‘a patriotic duty to hate Vladimir Putin’ and posed the question”What is this really about? Why do I hate Putin so much?’”. He contends that Ukraine is not really a democracy describing it as a “pure client state of the United States State Department,” despite the fact that Trump tried to extort the newly elected President into opening an investigation into Hunter Biden in exchange for already pledged military assistance. He sought to frame the choice between supporting Ukrainian President Zalensky and Vladimir Putin by posing the question “…But will destroying the entire Russian economy make Putin less bad? Will it make Russian troops withdraw from Ukraine? And if it will, how exactly will that work and how long will it take? Or is the plan even bigger than that? If they did, we can force Vladimir Putin from office entirely. Okay. Will that work? And if it does work, what happens to Russia after Vladimir Putin leaves? “
The new “Axis Sally,” Laura Ingraham, tried to blame the invasion on the “weakness and the incompetence” of the Biden Administration and derides President Zalensky’s appeal to Putin to end the invasion as a “pathetic display.”
Not to be outdone by her two co-hosts, Maria Bartiromo aspiring to be the 21st century “Tokyo Rose,” suggested that Putin’s invasion was a “ruse” to divert attention from Hilary Clinton’s email and the ‘hoax over the Russian investigation.” As the invasion unfolded, she speculated that “It seems that there is a predetermined outcome here in place. And that this is a slow death to Ukraine and president Zalensky as the Russian forces continue to get closer. With all of these other fatalities that we’re talking about-and some people have told me over the weekend that they feel that. At the end of the day, this administration does not see Putin as the enemy, they see him as a partner on many issues. They see him as a partner on climate change. They see him as a partner on the Iran deal.” Putin as a partner. She may have outdone Alex Jones with this conspiracy theory.
Carlson in his “Lord Haw-Haw role, “has now expanded his audience to include the viewers of Russian state television. The publication Mother Jones reported that memos from the Kremlin ordered that Russian state television “feature tucker Carlson in their coverage of the #Ukraine war as much as possible” and quoted the memo which said “it is essential you use as much as possible fragments of broadcasts of the popular Fox News hos, Tucker Carlson, who sharply criticizes the actions of the United States [and] NATO, their negative role in in unleashing the conflict in Ukraine, [and] the defiantly provocative behavior from the leadership of the Western countries and NATO towards the Russian Federation and towards President Putin, personally.”
Of late, such Republican intelligentsia as Marjorie Taylor Greene, Madison Cawthorn and Matt Gaetz, perhaps coveting a spot on Russian Television, have publicly echoed some of “Lord Haw-Haw’s” claims.
We can only be grateful that Carlson wasn’t born one-hundred years ago or we would have had to listen to him question whether Adolf Hitler’s successor would have been worse.

From 1900 to 1906, an Irish immigrant named Mary Mallon cooked for eight families in the New York City area. Seven of them contracted Typhoid fever. In 1907, Mallon was quarantined involuntarily until 1919 when she was released on the condition that she seek employment in a profession other than a cook. Between 1910 and 1915, Mallon violated her condition of release and returned to cooking. More typhoid infections followed and she was taken into custody by the New York City authorities and was quarantined for the next twenty-three years until her death in in 1938. She infected a total of fifty-three people, three of whom died. She went down in history forever known as “Typhoid Mary.”
We know, from the tape-recorded interviews with Bob Woodward, that Donald Trump has known since at least February that the lethality of the Covid-19 virus. He knew that it was airborne and that it affected people of all ages.
Despite that knowledge, Trump led the American people to believe that the virus was “no worse than the flu,” “would disappear like magic,” would disappear in the warm weather” and all sorts of lies and myths. He peddled all sorts of bogus remedies including injecting bleach and inserting ultraviolet light through the body orifices. He dismissed the medical experts’ prescriptions to reduce the transmission such as wearing masks and social distancing. He falsely promised a vaccine by election time. Unhappy with the advice he was receiving from renowned epidemiologists, he surrounded himself with quacks and charlatans who would tell him what he wanted to hear and bolster his lies and myths as he tried to wish the pandemic away.
As the virus mushroomed in cases, he left it to the states to procure their own medical supplies, ventilators and personal protection equipment crating a nightmarish economy in which the state officials found themselves bidding against each other, against foreign countries and contracting with grifters who often took their money and provided shoddy product or simply disappeared.
Against the advice of the medical and scientific community, he urged states to reopen their economies. Republican Governors DeSantis, Kemp, Ducey, Abbott and other, like lemmings, followed his lead and quickly saw the rate of infection and death in their states rise.
In search of adulation, Trump returned to the campaign trail and held massive rallies where little or no face masking or social distancing occurred. They became known as “super spreaders.” He held mini “super spreaders” at the White House, packing people together on the lawn of the White House and the Rose garden to celebrate his renomination and the nomination of a candidate for the U.S. Supreme Court.
As recently as last week, he stood on the debate stage in Cleveland, Ohio and mocked Vice-President Biden for wearing a mask on the campaign trail and holding small, socially distanced events.
As all of this unfolded over 208,000 Americans died and 7,000,000 were infected with Covid-19 and remain at the mercy of its sequelae.
On Friday, we learned that Trump, his wife, and a growing number of his White House staff and campaign staff have contracted the virus.
At this writing, Trump is a patient at Walter reed Hospital and is being treated by the best medical doctors in the country with the latest medicines and experimental treatments.
He is receiving far better treatment than the millions of American who are infected and those who died because of his lies and failure to lead.
In the midst of this his campaign has announced that that Vice-President Pence, the next person in line to the Presidency, will travel to Arizona on Thursday to hold another large, in-person rally which with no social distancing and no requirement that masks be worn.
If the Trump campaign and the White House are both stupid and reckless enough to do this, I propose that Trump be immediately discharged from Walter Reed Hospital and sent home with a bottle of Clorox Bleach.

My oldest brother, Jim, died this past July 30. He was seventy-six years old. He didn’t die from Covid-19 but nevertheless he died alone.
He was a patient in a skilled nursing facility. His death was sudden and unexpected. The only solace I can find in it, is that he went peacefully and painlessly. He didn’t endure the agony of a long painful debilitating decline but I wish that my other brother, Chuck, and I had been able to see him, be with at the end and able to say goodbye.

We hadn’t been able to visit him since March 13 when the ban on visits to nursing facilities and nursing homes went into effect.

After that, the high point of his day was a deli sandwich that one of the family or friends would drop off at the facility. In a matter of weeks, all food parcels were forbidden and the only pleasure that he had was prohibited.

I didn’t begrudge the prohibitions on visiting and food packages, we were in the worst and most dangerous pandemic in my lifetime and although I’m not a Cuomo fan, I thought he handled the crisis as best as anyone could.

If that wasn’t bad enough, the telephone provider that we arranged, instead of sending us the bills, began calling him at the facility and demanding payment. Since he had no way of making the payment, he would call me and tell me the amount they wanted. I would mail a check to the provider with the telephone number in the memo portion of the check. The check would be cashed but his account was not getting credited and they claimed that they had no record of his payment. Eventually, they cut off his ability to make outside telephone calls which was his only lifeline to family and the outside world. Chuck proclaimed it the cruelest situation he could imagine.

I spent an entire day on the phone with the provider trying to straighten this mess out. They kept insisting that they had to know the account number and I explained that since we had never received a bill that no one knew the account number Even though I provided them with the telephone number and the dates and check numbers of the payments they had received, they maintained there was nothing they could do to ameliorate the situation. Finally, completely exasperated, I made a formal complaint to the New York State Public Service Commission. That got the attention of the executive staff of the provider in New York and the situation was resolved by the end of the week and his outgoing service was restored.

As the weeks turned into months and his isolation continued, I began to order the latest books concerning politics and public figures so that he could pass the time feeding his addiction to all things political. Apparently, because the books were coming in the mail, there was no problem with his receiving them. Along with the unfolding presidential election, it gave us something current to discuss in our telephone calls. Chuck would spend an hour each day reminiscing with him about past events, experiences and humorous memories they shared.

On July 30, he was gone in an instant. I can only take solace in the fact that he went peacefully and painlessly. Nevertheless, he was gone without either one of us being able to offer him support, comfort or getting to say goodbye.

While the Irish are renowned for our wakes, calling hours in the middle of this pandemic were out of the question. We had a funeral service in which social distancing and masks were required and a brief grave-side service with similar precautions. A celebration of his life will have to come later.

At this writing we have over six million Covid-19 cases and in excess of one-hundred eight-five thousand deaths. We are witnessing a failure of leadership at the national and state levels of catastrophic proportions. While some states like New York have flattened the curve, others such as Florida, Georgia, Texas and Arizona have thrown caution to the winds and are seeing their death tolls rise. At this rate, scientific experts project that over three-hundred thousand of our fellow citizens will die by December 1st. This estimate doesn’t include people like my brother who, because they are quarantined, will die alone.

The English clergyman and poet, John Donne, proclaimed that there is a certain democracy in death; “Death comes equally to us all and makes us all equal when it comes.”

That may be true but I pray it doesn’t come to those who are alone.

Throughout the past three years, during the Mueller investigation into Russian meddling in the 2016 election, Trump has repeatedly asked “Where is my Roy Cohn?”
For those of you who don’t know who Roy Cohn was, he was Trump’s lawyer throughout his career as a developer and up until his death in 1986. He was generally regarded as one of the sleaziest, vicious and unethical lawyers that the American legal system ever produced.
Cohn rose to prominence during the 50’s decade as counsel to U.S. Senator Joseph McCarthy and enabled McCarthy in his often-bogus senate investigations into the loyalty of Americans which produced little in concrete evidence but terrorized and destroyed the reputations, careers and lives of many. Cohn and McCarthy’s targets weren’t just selected because of their suspected political beliefs, they were responsible for many gay men being fired for government service and routinely tried to silence opponents by spreading rumors that they were gay.
Following his departure from government employment, Cohn practiced law in New York where he represented Trump, Rupert Murdoch and various organized crime figures. During the decades of the 70’s and 80’s Cohn was charged with professional misconduct three times and indicted by the U.S. Government for financial improprieties involving New York City contracts. He was acquitted of those charges. In 1986 he was disbarred from the practice of law after he misappropriated a client’s funds, lied on a Bar application and tried to pressure a dying client to change his will to make himself a beneficiary.
In 1984 Cohn was diagnosed as suffering from AIDS. Perhaps because of his earlier persecution of gay men, he chose to remain in the closet while accepting experimental treatment in clinical trials of AZT. He died in 1986.
Throughout the Mueller probe, Trump would frequently disparage his Attorney General, Jeff Sessions, for recusing himself from the Russian probe which led to the appointment of Robert Mueller. He would insist that Presidents Kennedy and Obama had Attorney Generals in Robert Kennedy and Eric Holder that would personally protect them, all while lamenting “Where is my Roy Cohn?”
To be sure, Jeff Session was no Robert Kennedy or Eric Holder. In coordination with his former protégé, Steven Miller, they implemented a policy of separating immigrant children from their parents on the Texas border and maintaining them is substandard detention facilities. Some of the parents were deported without their children and a number of their children may never be reunited because their whereabouts are unknown.
In 2019 Trump appointed William Barr to be Attorney General.
Since his appointment, Barr is attempting to get the Affordable Care Act nullified before the U.S. Supreme Court despite the fact we are in the midst of a pandemic that has killed over 80.000 Americans to date.
Barr withheld the Mueller Report for almost a month so that he could publicly misstate its findings and create a false narrative that it exonerated Trump despite its stated conclusion to the contrary.
Barr has opened investigations into the origins of the Russian election meddling investigation despite his own Justice Department Inspector General’s conclusion that no impropriety occurred at the inception that casts doubt on its legitimacy. Barr has repeatedly sought to discredit IG’s finding.
Barr intervened in the yet to be sentenced, Trump crony Roger Stone case, undermining the sentencing recommendation of the career prosecutors who tried the case and resulting in their withdrawal from the case. Following this move by Barr over two-thousand present and former Justice department employees signed a letter calling for him to resign.
In a series of political Jiu jitsu moves, Barr maneuvered the U.S. Attorney for the District of Columbia, Jessie Liu, out of her position and installed his own aide, Timothy Shea, as the interim U.S. Attorney. Following Shea’s appointment, Liu’s nomination for Deputy Counsel at the Treasury Department was withdrawn and she left government service.
Shortly after his interim appointment, Shea signed the reduced sentencing recommendation in Roger Stone’s case despite also having signed the original seven to nine year recommendation. Need one wonder whether it is Barr or Shea calling the play?
As I write this, Barr has directed Shea to drop the criminal case in which Trump former National security Adviser, Michael Flynn, is awaiting sentencing. It will be remembered that Flynn pled guilty not once but twice to lying to the FBI about his conversations with the Russian Ambassador, Sergey Kislyak involving the sanctions imposed by the Obama Administration for that country’s meddling in the 2016 election.
In true Lewis Carroll Through the Looking Glass reasoning, Barr has determined that the lies were not material to the investigation and it should have been closed without Flynn being interviewed. This of course ignores the fact that by lying about the conversations, Flynn made himself a potential target of Russian blackmail that could put the security of this country at risk. Barr has also conveniently ignored the fact that part of Flynn’s plea agreement included an agreement not to prosecute Flynn for failing to register as an agent for the Government of Turkey while trying to arrange for the rendition of a Turkish cleric living in Pennsylvania at the behest of the Ergodan government.
Rule 48(a) of the Federal Rules of Criminal Procedure does not permit the Government from dismissing an indictment without the approval of the court. Judge Emmett Sullivan who is presiding over the Flynn case has scheduled court proceedings to determine whether he will consent to a dismissal. He has appointed the highly regarded John Gleeson, a former Federal prosecutor and Judge to act as a devil’s advocate to probe the issues and motivation underlying the government’s motion to dismiss.
Additionally, Judge Sullivan has invited interested parties to file amicus curiae (friend of the court) briefs for guidance of the wisdom of a dismissal. Lawyers representing the two-thousand plus employees that called for Barr’s resignation following his intervention in the Roger Stone case and, again, after he moved to dismiss the Flynn case, are filing such a legal brief.
While it will be interesting to see what Judge, Sullivan decides, in the end, there is one fact that is undeniable.
Trump has finally found his Roy Cohn.

There are probably no more disappointing words to those of us who have made a career in the criminal justice system than “The fix is in.”
I genuinely believe that almost all members of that system, judges, prosecutors, defense lawyers and police officers strive to insure that cases are handled evenhandedly and justly regardless of the outcome.
I have represented a fair share of politicians, public officials, wealthy and powerful defendants during my career as a defense lawyer.
I also presided over many cases involving the wealthy, powerful and influential defendants during my time on the bench.
It goes without saying that when a defendant who is white, wealthy, powerful or has friends in high places escapes conviction that the public becomes cynical and assumes the worst and that the ‘fix is in.”
There can be little doubt that the recent intervention in the Roger Stone sentencing recommendation by Trump and his Attorney general, William Barr, is a textbook example of the “the fix is in.”
If you were to look up the word “sleaze” in the dictionary, Roger Stone’s photo should be next to it.
Stone, a Trump advisor and confidante, has made a career out of performing the dirtiest, most underhanded and sleaziest dirty tricks for anyone who had the bad judgement to hire him.
Perhaps his sleaziest occurred in 2007, when he was discovered to have made harassing and threatening telephone calls to former Governor Eliot Spitzer’s father, Bernard, at a time when the elder Spitzer was suffering from dementia.
Justice caught up with Stone this year when he was convicted by a jury of obstructing the House of Representatives Intelligence Committee investigation into Russian meddling in the 2016 election, lying to investigators and intimidation a witness by threatening physical violence.
Justice Department prosecutors handling the case recommended a sentence of seven to nine years in prison for Stone until Barr stepped in and ordered it to be reduced.
In order to appreciate how the “fix” occurred it is important to follow the machinations of Trump, Barr and others involved in it.
The first move was nominating the United States Attorney for the District of Columbia, Jessie K. Liu, to become an Undersecretary of the Treasury. Liu had been the U.S. Attorney that had overseen the prosecution of Stone. She was persuaded to leave her position as U.S. Attorney and assume the Treasury position on an acting basis.
Barr then replaced her with an interim U.S. Attorney, his close aide, Timothy Shea.
Trump then began tweeting that the sentencing recommendation made by the prosecutors in the case was “horrible and very unfair” and “Cannot allow this miscarriage of justice.”
Shea, then wrote to the Judge that the Justice Department believed that Stone should get some jail time but that the seven to nine year term proposed by the trial prosecutors would be excessive. This interference prompted all four of the prosecutors to resign from the case.
Once this had been accomplished, Trump withdrew Liu’s nomination to be Undersecretary of the Treasury, leading t hero resignation from the Administration.
This last act is one that should draw some real scrutiny and prompt Congress to investigate.
What would motivate Trump to withdraw Liu’s nomination for the Treasury position?
Clearly the Administration believed that she was qualified for the position or it would not have nominated her in the first place.
It couldn’t have been a question of loyalty since she joined the Administration and wasn’t an Obama holdover.
There hasn’t been any suggestion of misconduct on her part.
I suspect that the answer lies in the fact that she was scheduled for a confirmation hearing before a Senate committee and would have been required to testify truthfully under oath and the change in Stone’s sentencing recommendation would have been a likely subject of the inquiry.
If there is one thing we know about the Trump Administration it is that they are loath to let anyone testify before Congress.
Now that Liu is a private citizen, Congress should call her as a witness and get to the bottom of this “fix.”
I lived through the Watergate scandal and I have to say that Trump makes me miss Richard Nixon.
William Barr makes me miss John Mitchell too.

Now that the impeachment trial is over and the verdict has been rendered, I can’t help but offer a few thoughts on this chapter in our history.
I don’t think anyone believed that the acquittal of Trump was anything but pre-ordained. Mitch McConnell, the Senate majority leader, had announced well in advance that the majority Republicans would be coordinating closely with Trump to insure this outcome. In order to convict and remove Trump, sixty-seven members of the Senate would have had to find him guilty on one of the articles of impeachment and that was simply not going to happen.
Two lessons can be taken away from this outcome.
First, Trump and any president coming after him will bene emboldened to take any action or do any deed that they perceive will insure their re-election. One of Trump’s attorneys, Harvard professor Alan Dershowitz, advanced the dangerous proposition that a president could take any action that he or she believed was in the “public interest,” including inviting foreign interference in our elections, and because they believed that their election was in the “public interest” could not be found guilty of a “High crime and misdemeanor.” Under Dershowitz’s theory there is no reason to draw the line at “foreign interference.” If a president believed that their re-election was “in the public interest,” why can’t they jail an opponent, take unlimited foreign money or assassinate a critic?
Apparently there is no limitation on what a president can do if they claim that the action is “in the public interest.” I would suggest that Harvard revisit this crank’s status as a faculty member there.
The second lesson is that the days of congressional oversight of the Executive branch are over. From the beginning of this administration the Executive branch has ignored virtually every subpoena for information or witnesses it has been served with, whether it related to impeachment or not. It has ignored a request and subpoena for Trump’s tax returns despite a statute that clearly requires their production to the House Chairman of the Ways and Means Committee, the Chairman of the Senate Finance Committee or the Chairman of the Joint Committee on Taxation, It instructed the Executive Branch employees not to cooperate or honor subpoenas during the Mueller investigation. It stone walled every subpoena for testimony or documents during the impeachment inquiry and trial.
The second article of impeachment which charged Obstruction of Congress was also voted by the House Judiciary Committee during the Nixon impeachment proceedings for conduct which was much less obstructive. No verdict was returned in that impeachment because the Republican leadership at that time had the good sense to persuade him to resign.
The acquittal on this article of impeachment all but insures that compliance with any congressional subpoena will not occur.
Perhaps the most disturbing part of this proceeding is the refusal to call witnesses even where it is clear beyond cavil that they have relevant first hand testimony and evidence to offer. The Republican refrain throughout these proceedings is that the accusation are based on hearsay testimony from witnesses with no firsthand knowledge. Yet, when John Bolton and others are identified as having firsthand knowledge any attempt to summon them is rejected on a party line vote.
It is the first impeachment trial in our nation’s history in which no witnesses were called.
Sixty-four years ago, John F. Kennedy published his Pulitzer Prize winning work entitled “Profiles in Courage.” Among those profiled in the book was Edmund D. Ross, a Republican Senator from Kansas, who crossed party lines and cast the vote that led to the acquittal of President Andrew Johnson during the first impeachment of a president.
The fifty-two Republican Senators who voted not to summon witnesses during Trump’s trial will not be viewed kindly in history. They will be lucky if they are not included in a future work titled “Profiles in Cowardice.”
In the twenty-one years that I tried civil and criminal cases in state and federal courts and the nineteen years that I presided over trials as a judge, I can never recall hearing about a trial in which there were no witnesses.
I’m tempted to call the Trump impeachment trial a kangaroo court but that would be a terrible thing to say about kangaroos.
By all accounts, they are nice animals.

The greatest canard being advanced by Trump, his lawyers and defenders is that the articles of impeachment in his impeachment trial are deficient because they do not charge that he committed a specific identifiable crime.
Nothing can be further from the truth.
A simple review of American history demonstrates the fallacy inherent in this argument.
The impeachment clause that was under consideration during the Constitutional Convention in Philadelphia in 1787 was being discussed and debated while the overall framework of the proposed Federal system was being designed.
The Constitution had neither been approved by the Convention nor ratified by the states.
Thus, there was no Executive, Legislative or Judicial branches in existence.
There was no House of Representatives or Senate which could propose and enact laws. There was no President who could approve or veto enactments and, as a result, there was no penal code in existence which could define the crimes that would make the President and other officers of a government criminally liable or liable for impeachment.
In determining what offenses might be included in an impeachment clause, the Framers included those crimes that they were familiar with having just fought a war of independence a decade before. The crimes of Treason and Bribery were within their recent experience but much debate would ensue over what other conduct would constitute an impeachable offense.
Professor Engel in his portion of the work, Impeachment, referenced in my earlier blog post on this subject, quoted Governeur Morris, a convert to the requirement for an impeachment clause on the subject of bribery; “”A president may be bribed by a greater interest to betray his trust and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.”
The Framers in trying to decide what other conduct might be a basis upon which to impeach a president, looked to the several state constitutions in existence. Five states adopted “maladministration” as the ground for impeachment. New York specified “misconduct” and North Carolina, “misbehavior.” James Madison suggested “incapacity, negligence or perfidy.”
Professor Engel recounts how Virginia’s George Mason grew frustrated at the impasse, complaining; “Why is the provision restricted to treason and bribery only? He suggested that they reconsider “maladministration.” Madison, however, objected that “maladministration” was too subjective and that a president could then be removed for solely political reasons. A malevolent intent should be required. Ultimately, Mason bowed to Madison’s reasoning and proposed “high crimes and misdemeanors.”
Professor Engel notes that the term “High crimes and misdemeanors” has “puzzled readers ever since.” I can confess that while attending law school and throughout my career as a lawyer and a judge, if you had asked me to explain what “High crimes and misdemeanors” meant, I would have said “high crimes” was synonymous with the term “felony” and misdemeanor had its ordinary accepted meaning.
I was astounded to discover that my interpretation would have been wrong.
Engel explains that “High” offenses appeared in English law as early as 1386 and evolved over centuries along a common thread. ‘High’ offenses were committed against the sovereign’s state, or against the people in republics where the people had sovereignty on their own. The adjective is the key. A ’crime’ occurred where one citizen or subject harmed another. “High crimes” were conversely those committed against the crown in a monarchy, or the people in a democracy. The term says nothing about the severity of the crime or its consequent penalty, merely as one that surpassed mere criminal law, being a more fundamental assault against the body politic…….Put in even clearer terms, ‘high’ crimes warranting impeachment were those a president might commit against the entire American people.” Engel further explains “To the Constiution’s authors, therefore, a ‘high crime and misdemeanor,’ need not violate an extant law or statute, and neither would a president who commits common violation be guilty of a ‘high’ offense. An impeachable offense need not be illegal at all.”
Thus, it seems that a president who “shoots someone on 5th Avenue” might ultimately be prosecuted criminally for it, he would not be liable for impeachment for it but one who interfered or obstructed the investigation into it, could be.
Kenneth Starr and Alan Dershowitz are clearly wrong in suggesting that absent the inclusion of a specific criminal offense that the articles of impeachment are deficient.
I suspect that they know that too.