Was Mueller’s Appointment legal?

I heard this accusation before and pretty much just thought it was total nonsense.  The idea was one could ignore everything Mueller investigated, because his appointment was unconstitutional.

I was surprised when I listened to a speaker on a conservative law forum, featured on C-Span, addressing this issue.   He had obviously thoroughly researched this topic.  I did not know the history of this issue.   These arguments have been used twice in District Court and rejected and then again in the Appellate Court,  where the three judge panel rejected all the arguments.  Once it gets rejected on appeal and not reviewed by the Supreme Court, it becomes case law – Mueller’s investigation was legal in the opinion of the court.

In 2018, a series of well written articles were published and posted online, detailing why Mueller’s investigation was illegal, written by Steven Calabresi,  a Professor of Law at Northwestern University.

Of course Donald Trump’s immediately ceased on this with his rapid fire tweeting  machine, to be telling his millions of followers that the investigation which he claims exonerated him (of course, it didn’t clear him of obstruction of justice) was UNCONSTITUTIONAL.

So, in what’s this all about?  The President nominates and the Senate approves “Principal Officers” such as US Attorneys and heads of Departments may appoint “Inferior Officers” per Article II of our constitution.   Robert Mueller was considered an inferior officer because the Justice Department could supervise his activities and fire him if necessary.   At the core of Professor Calabresi’s arguments, it seems, is the contention that Mueller was given so much authority, he fit better into the definition of a principal officer than an inferior officer.  The Appellate court disagreed and I’ve posted their opinion.

Consider for a moment if the case had succeeded.   It would require the President to nominate and the Senate to approve the Special Prosecutor.   It would be very difficult to imagine this ever happening, so we would have lost an important means of keeping government accountable, particularly at the highest level.  There will officials in high office who will abuse their power.  No one in a democracy is  above the law.

The Miller case is one for the textbook, thanks to the challenge by Trump supporters.  It adds clarity to Article II, Section 2 of our Constitution.  In the future,  any similar challenges on the authority of any Special Counsel appointment will be quickly dismissed in the courts as long as the Justice Department retains the right to dismiss the Counsel and clearly defines the scope of the investigation.    Unfortunately, claims that Mueller’s appointment was unconstitutional will live on, in podcasts, social media,  political conspiracy books, and their ilk.

Stay tuned,

Dave

Links:

The Hill: US Law is not on the side of Mueller

Washington Post: Special Counsel Robert Mueller’s appointment is valid

District Court concludes Mueller’s Appointment is valid

(The above legal opinion is pretty steeped in law and Department rules.  Per the Washington Post, “The separate constitutional challenge to Mueller’s appointment was brought by Stone’s associate Andrew Miller, who has been trying to block a grand jury subpoena from the special counsel’s office. Miller was held in contempt by a lower-court judge for failing to testify before the grand jury as part of Mueller’s investigation into Russian interference in the last presidential election.”  )

Note on the very nuanced analysis of obiter dictim on page 9 :  Obiter dictim: A judge’s incidental expression of opinion, not essential to the decision and not establishing precedent.

Trump-Ukraine Scandal: Public Opinion

C-Span has a program called Washington Journal, which allows callers to give their opinions.  They must identify themselves as being either Democrats,  Republicans or Independents and it seems they try to get a good blend of callers from these three groups.   In this case, the moderator was completely neutral.

On the issue of the impeachment inquiry, a caller described it as a totally “made up” story.  And she had her facts.  Adam Schiff had talked to the whistle blower before the whistle blower had submitted a complaint.  Also,  Schiff denied he or anyone on his staff had contact with the whistle blower.  So, this proved to the caller that everyone was lying and what was going on was just a lot of dishonest people out to get the President.   The conspiracy idea was that Adam Schiff told the whistle blower what to report, so he could get the president impeached.   He then rounded up a few dozen traitors in the State Department and told them what to say.   He must have manufactured other evidence like text messages and emails.   The news media was either complicit or just went along with this giant  hoax.

One piece of this conspiracy  immediately begins to fall apart.  Adam Schiff did not have any contact with the whistle blower – but apparently someone on his staff did, but not at a detailed level of the issues.  The whistle blower was asking what the proper way to file a complaint under the whistle blower protection laws.   What this staff person told the whistle blower is you need to get an attorney and go through proper channels.  No short cuts permitted to the House Intelligence Committee.

The evidence is really mounting against President Trump of trying to get dirt on Biden in exchange for approved military aid.   I  think this is a crime of  extortion and an abuse of presidential power.   The first day of public hearings will be on Wednesday, November 13.   The current chargée d’affaires,  to Ukraine, Bill Taylor and the Deputy Assistant to the Secretary of State, George Kent, will testify.  I believe Counsel for the Democrats and Republicans  will do the questioning for 45 minutes each.   There won’t be any surprises.   I can say this because both individuals have testified extensively in closed sessions and the transcripts have been released on the House Intelligence Committee website.   So this hearing is not likely to add to the House inquiry.   It is more to legitimize the inquiry to the public.

Trump said today (Nov 8)  that there should be no open impeachment inquiry.  Pretty amazing as  Trump and other Republicans were highly critical of the closed sessions.

I hope the C-Span caller will tune in along with many Americans who have doubted the process.  This is not a witch hunt, hoax or fake news.  It is real and extremely serious.    I have included the biographies of both Bill Taylor and George Kent below.

Stay tuned,

Dave

Links:

Wikipedia:  William Taylor

Wikipedia:  George Kent

 

 

 

2020 Election forecasting

I saw a headline that Moody had an election forecast model which shows Trump wins by a landslide.  I thought immediately that this can’t be.  Landslides happen when a very popular president runs for re-election, and wins big in certain key states.

Moody has a forecast model, which uses economic variables to predict election winners.   They produced 3 elections scenarios:  (1) Democrats win by a narrow margin (2) Republicans win by a narrow margin and (3) Republicans win by a wide margin.   The difference in these three models is the % turnout of the opposition party (Democrats) in the election.   Republicans win if this % Democratic turnout is average or below average.  Democrats win with a high Democratic turnout.  Of course, this turnout will not be known until after the election.   It is really what every election strategist will tell their candidate, that it isn’t enough to get people to agree with you,  you have to get them to vote for you.

Rule 1:  You need to fire up your base at election time or at least more than your opponent.

Moody’s work predicts every outcome but a Democratic landslide.   Moody’s considered 3 models, all using economic data, state-by-state.  I’ve included their model description in the links.   The approach passes my quick “six state reasonable check.   Regardless of the model and turnout,  Republicans win in TX 38,  GA 16, and TN 11 while Democrats win CA 55, NY 29 and IL20.  Postal  codes are followed by the electoral votes (EV)).   Moody predicts that all toss up states go to Trump when Democrat turnout is low or average.  I’m skeptical of this result.   They include all elections from 1980 to 2016.  I believe the earlier elections with Reagan victories may have skewed their results.  No candidate can win in New York, California and Texas anymore.

I’m particularly skeptical of Moody’s  wide margin win case,  with Trump beating Democrats  380 to 158 electoral votes.  That’s a solid win but not a landslide by historical standards.   Crushing victories haven’t happened for 3 decades.   The more recent landslides  were: 1972 Nixon vs.  McGovern with 520 EV,  1980 Reagan vs. Carter 489 EV and 1984 Reagan vs Mondale 525 EV.   Yet Reagan crushed Carter in 1980, he won just 50.7% of the popular vote. Nixon won by a landslide and a solid popular vote of 60.7%, yet resigned two years with the Watergate scandal.   I won’t go there- this blog already getting long!

Rule 2: You don’t have to be popular in every state, just the ones that count.

I tried to compare Moody’s work to everyone else making forecasts, but it just got too complicated.  I’m sticking with my  list of 5 solid toss up states of MI 16,  WI 10, PA  20. FL 29 and AZ 11, made on my Aug 19 blog. I also included the extra 2 contenders for the “who knows” list:  NC 15 and  NH 4,  plus 2 Republican leaners,  GA 16 and OH 18,  both with sizable EVs.    All total  these nine states have 145 electoral votes and will decide the election.

As far as the solid Republican vs Democrat vote,  I think the Democratic candidate begins more solid support.  In the link given below, the safe EV for Democrats varies from 183 to 209.  The Republicans can count on a safe 125 EV although there is certainly an upside to this.  If we look at states which went Republican since year 2000, the EV count is 179.  See link below.

Following Rules 1 and 2 are important.  I’d like to add this final rule.

Rule 3:  Election forecasts do not necessarily get better with time.    Forecasts showing one candidate to win,  can actually help the opposing candidate.

My case in point is all the polls in 2016 showed Hillary Clinton would win Florida.  But they all showed the race to be very close.   The candidate may be popular but that’s not enough – see Rule 1.   Hillary Clinton was widely predicted to win the 2016 election and this gave Trump supporters more incentive to vote.

Every time a candidate appears to be ahead in a swing state, the opposing candidate will double their efforts.  The “close the gap” strategy precludes any landslide elections.    Each candidate will target the swing states with every trick in the book.

Stay tuned,

Dave

Links:

Moody’s Model

270toWin.com

Wikipedia: Presidential elections

 

 

Impeachment Update + Climate Change Meeting + Say good-bye Rick

Thought I would add two quick items:

I continue to add links to the impeachment inquiry page as shown on the right side of this web site.  I particularly like the CNN Inquiry tracker.   There are currently 30 requests for testimony or documents and 24 subpoenas.  The joint committee, meeting behind closed doors, has heard from 16 witnesses, so the hearings in this phase, are far from being done.    I figure with 16 down and 54 to go, this marks the 30% done level.  Of course,  the requests and subpoenas could outpace the testimonies, so this % done statistic could go down.

Imagine inviting 20,000 of your friends over for Thanksgiving and given only a few weeks to prepare.  What Madrid did, in hosting the COP25 Meeting is pretty incredible.  It will be a conference filled with intense negotiations, as reducing carbon emissions calls for sacrifice, and each country has to do their share for the greater good of the planet.  Good words with no action are not helpful.    Unfortunately, the US and Brazil look to be the only two countries who see this  terrible crisis as an inconvenience to their nationalistic political agenda.  Bolsonaro, President of Brazil, seems to believe that Brazil is somehow not connected to the rest of the planet.  Yes, our house is on fire, in California and the Amazon.   Trump will become a permanent resident in Palm Beach, Florida, and may begin to take a real interest in rising sea levels.

Our Secretary of Energy Rick Perry will be leaving soon, stonewalling the House for documents and testimony related to the Trump-Ukraine scandal and really embracing the “Bob Murray” energy plan to push coal and do whatever is possible to discourage renewable energy sources.   Solar panels made in China got hit with 55% tariffs and inverters, I believe, are now taxed at 25%,.

Murray Coal got everything on their agenda list they sent to Mike Pence, (except his welfare plan for nuclear and coal)  which included rolling back of all initiatives taken during Obama’s administration, yet the Murray Coal still went bankrupt.    I hope I will never see again in my lifetime the owner of a coal company have so much sway over the Department of Energy and the EPA.   Money doesn’t talk, it swears (Bob Dylan).

Stay tuned,

Dave

Links:

Madrid to host Cop25 climate talks in December after Chile withdraws

The Trump-Ukraine scandal: Basic accusation and overall scheme

“The great enemy of truth is very often not the lie–deliberate, contrived and dishonest–but the myth–persistent, persuasive and unrealistic. Too often we hold fast to the cliches of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.”  John Kennedy, 1962 Yale Commencement speech.

As more interviews are conducted and documents collected, sometimes it’s best to focus on the core allegation against Donald Trump, which is abuse of power.

Trump assume Joe Biden would be the Democratic candidate for president.  He had a plan to show Joe Biden was corrupt by using his power as Vice President to enable his son to become wealthy.  To support this claim, Trump wanted the newly elected President Zelenskiy to make a public statement that there was an ongoing investigation into the Biden’s activities in the Ukraine.   In particular, an investigation focused on Hunter Biden’s consulting work and Joe Biden’s efforts to get the prosecutor at the time in the Ukraine fired.   There is a lot more to this story which is laid out in the Wikipedia link below.

In return for the public statement made by the President, he would in turn, release the 400 million dollars in military aid approved by Congress.  President Zelenskiy would be invited to the White House.  This seems the basis of the deal.

In sum, it was a business deal,   The President had attached conditions to the military aid.  This didn’t work.  The Ukraine got its military aid without  making any public statement of an investigation.   There has been no suggestion of re-opening an investigation which ended years ago.

Trump’s election strategy was to  show the American people that Biden did not care about the US and could not be trusted.  It went far beyond this claim.   Trump wanted to tell the people he was the anti-corruption president and the Obama-Biden administration was the corrupt one.   So,  the 2020 election strategy was a lot like the 2016, except of chanting “Lock her up” it would be “Lock them up”  to include the Democratic Party.

Unfortunately, as subpoenas are ignored and court cases increase, the rhetoric and innuendo from Trump’s cabinet will soar.   Mike Pompeo stated yesterday to the New York Post, “This is the administration that actually provided defensive weapons systems [to Ukraine]. I could not tell you why the Obama administration chose not to [arm Ukraine]. Was it because of Hunter Biden? I don’t know!”

Gee, I do, (Pompeo knows also by the way).  From the Washington Post:

“U.S. assistance (and the threat of withholding it) has played a role in efforts to root out corruption and promote transparency in a country that has long grappled with cronyism.  Viktor Yanukovych, the country’s notoriously corrupt president from 2010 to 2014, was convicted of treason by a Ukrainian court and sentenced in absentia in January to 13 years in prison. While in power, Yanukovych was widely seen as a pro-Russian puppet: The court ruled that he called on Russian President Vladimir Putin to invade Ukraine and that he violently quashed pro-Western democracy protests in Kiev.” (September 25, Washington Post)

Trump’s 2020 re-election strategy is to use the authority of the President to go dirt hunting along with the Department of Justice and US Attorney Durham and possibly the missing Maltese Professor Joseph Mifsud.   We will soon pass two years since Mifsud went missing.  Anything that will undermine the FBI’s investigation of Hillary Clinton’s emails and the Russian investigation in 2016 are fair game.  Particularly juicy are claims that the Obama administration was spying on the Trump’s campaign to help Clinton.  Please read again the JFK quote.  This is all stuff which has a tiny element of truth, covered with a whole pile of s***.    I’m stopping here but I’ve included some links on these topics for anyone who enjoys this nitty-gritty.   My spell checker wants to change nitty to nutty, and I believe it has a point.

Links:

https://en.wikipedia.org/wiki/Trump%E2%80%93Ukraine_scandal

https://www.reuters.com/article/us-usa-trump-barr-mifsud-explainer/explainer-the-missing-maltese-academic-at-the-heart-of-washington-intrigue-idUSKBN1WO1BX

https://nypost.com/2019/10/30/pompeo-forcefully-defends-trumps-ukraine-phone-call-takes-shot-at-hunter-biden/