Posts Tagged ‘John Roberts’

THE OTHER F-WORD

On December 17, Senate Majority Leader Mitch McConnell (R.-Ky.) stated re the upcoming trial of impeached president Donald Trump, “I’m not an impartial juror.” On January 16, Chief Justice John Roberts swore in the Senate. McConnell pledged to “do impartial justice.” Anyone for cognitive dissonance?

Then McConnell doubled down. Before preliminaries this past Tuesday, he asked, “Can we still put fairness, evenhandedness and historical precedent ahead of the partisan passions of the day?”

Alas, fair is a word generally honored in the breach. Trump’s trial likely will be a great deal less than fair to the American people. Procedures and voting will reflect near-total partisanship. It’s a given that Republicans will acquit Trump.

Personally, I believe Trump’s phone call to Ukraine president Volodymyr Zelensky constituted abuse of his office for personal political gain. This calls for removal from office. But I stress the word believe.

Impeachment is somewhat similar to indicting someone in a criminal case, although it’s a political matter and involves interpretation of “high crimes and misdemeanors.” Still, an impeached president, like anyone indicted by a grand jury, remains innocent until proven guilty at trial. That’s fair.

Trial in the Senate roughly approximates a court trial although with major differences. It’s also political. And the 100 senators are not jurors like citizens summoned to render verdicts in criminal courts. Senators are not randomly selected but elected (or appointed) politicians. Prosecuting and defending teams cannot dismiss them at will (peremptory challenges, usually limited) or by showing cause( unlimited). Importantly, unlike criminal jurors, Senators vote on rules pertaining to the trial’s conduct.

Still, fairness demands that the Senate conduct itself according to criminal jury standards: Be open-minded, place the burden of proof on the prosecution, listen to and evaluate the evidence, put aside personal preferences.

So, in spite of what I believe, I consider Trump—whom, to be forthright, I find reprehensible—innocent until and unless the House impeachment managers make a convincing case. To be fair to justice, this may require witnesses and documents not available or requested during the impeachment process.

Citing the imprecise parallels with criminal trials, attorneys may call witnesses who did not testify before a grand jury. They and new evidence may clarify the case for either party by revealing truth.

Senator McConnell at best hedges. Republicans voted down Democratic-proposed amendments re subpoenas to secure new witnesses and documents now. The matter is tabled. Note that whether new witnesses and documents will help or hurt the impeachment management team remains open for discussion.

Still, Mitch McConnell wants to be fair—as he was fair to America by blocking a Senate hearing on Judge Merrick Garland, whom President Barack Obama nominated to the Supreme Court. According to McConnell, Obama had less than a year to go in his second term. A new president should have the right to fill the vacant seat. A sitting president in his last year should sit on his hands.

In the name of fairness, I propose a deal. Trump goes Scott-free without further prosecution. The Senate goes back to its regular business. In return, Trump, less than a year remaining in his term and no assurance of re-election, retreats to Mar-a-Lago and relinquishes the responsibilities of the Oval Office.

Given the integrity modeled by Mitch McConnell, nothing could be more fair.

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SUPREME COMMON SENSE

Donald Trump nominated Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court. Republicans exulted. Democrats vowed a bitter fight against the nomination. Odds are, Judge Kavanaugh, who appears to embrace strict interpretation of the Constitution, will be seated. I hope he’ll bear in mind a 2010 Supreme Court decision and the common sense of two Torah portions.

Ten years ago, Citizens United, a non-profit corporation founded for the purpose of“restoring our government to citizens’ control” utilizing “a combination of education, advocacy, and grass roots organization,” sought to advertise a documentary film it produced critical of Hillary Clinton. Mrs. Clinton was running for the 2008 Democratic presidential nomination. The 2002 Bipartisan Campaign Reform Act (aka McCain-Feingold) restricted corporate-sponsored advocacy communications from naming a federal candidate 30 days before a primary election and 60 before a general election. Citizens United sued the Federal Election Commission, declaring a violation of its free-speech rights under the First Amendment. Citizens United insisted that it was merely presenting information about a candidate, not endorsing or opposing one.

The issue went to the Supreme Court where liberal justices would have upheld McCain-Feingold. During initial oral arguments, soon-to-retire Justice David Souter read aloud some of the film’s narrative: “She’ll lie about anything. She’s deceitful. She’s ruthless. Cunning. Dishonest.” He concluded, “That sounds to me like campaign advocacy.”

Chief Justice John Roberts asked for additional arguments addressing broader grounds. These were made three months following Souter’s retirement. The court voted 5-4 in favor of Citizens United. Justice Kennedy’s majority opinion referenced a lower court’s decision upholding banning books published or distributed by corporations or labor unions if they promoted or opposed a specific candidate. Banning books was un-American. Under the rubric of free speech, enormous sums of money from super PACs—political action committees—began flowing into election campaigns, though not to political parties.

There’s a strong difference between speechand reach. I point to Justice Souter’s post-retirement comments in 2012: “If I exercise my liberty to the greatest possible extent, I can suppress the rights of a lot of people.” Corporations and the wealthy can spend millions of dollars promoting their views. They enjoy reach—distribution—average Americans cannot match.

The court’s decision seems based on Originalism—interpreting the Constitution exactly as written. That’s difficult. The Constitution’s writers knew of newspapers and soap boxes but not television, the internet and social media. Lack of context and adaptability can make a travesty of justice.

Here I cite Torah (Bamidbar—Numbers). In the portion Pinchas(Phineas), the five daughters of Zelophechad, who died without a son make their case to Moses that they should inherit their father’s portion of land in Canaan. God assures Moses this is just. The laws of inheritance are amended. In Mattot(Tribes), the tribes of Reuben and Gad ask Moses permission to settle in the cattle country east of the Jordan River rather than in Canaan. This alters God’s plan, but Moses says they may do so after participating in Canaan’s conquest.

During this November’s mid-term Congressional elections, voters will be bombarded by messages spread via huge sums of corporate and individual money. Such communications will give their sponsors—usually unidentified—unequaled power to sway elections. Common sense tells me that free speech will not be served.

Many thanks to Ron Laupheimer, a retired lawyer, for clarifying some issues. I am not a lawyer or legal scholar but am exercising my right to free speech—even if my reach is limited—based on, well, common sense.

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