Month: February 2020

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.