Category Archives: Opinion

The Constitution under stress after Charlottesville

Opinion

by William H. Freivogel

The bloody weekend in Charlottesville, Va. has put enormous strain on President Donald Trump, the First Amendment and constitutional checks on the president.

Trump flunked the stress test spectacularly in his unhinged, red-faced rant of a press conference by failing to speak to the nation with the voice of moral authority.

The First Amendment emerged from the weekend tattered, facing new questions about how to protect protests when demonstrators are hateful and armed.

But the separation of powers held up pretty well. An unprecedented number of top Republicans criticized their own party’s president for failing to call out white supremacists and neo-Nazis. And the mainstream media continued to pepper Trump with hard questions in the face of the president’s repeated and false refrain about “fake media.” People would understand his view on Charlottesville, he claimed, “if the press were not fake and were honest.”

Going ‘rogue’

Trump wasn’t supposed to answer questions after his Trump Tower event on infrastructure on Tuesday, but he went “rogue,” as one staffer put it. Chief of Staff John Kelly stood glumly to one side.

White House economic adviser Gary Cohn, standing near the president, was “particularly displeased” according to Politico, that “the president launched into a rant about the culpability of the ‘alt-left’ while calling some of the protesters at the white nationalist rally ‘very fine people.’”

Transportation Secretary Elaine Chao, Senate Majority Leader Mitch McConnell’s wife, also was trapped next to Trump. McConnell on Wednesday said simply, “There are no good neo-Nazis.”

Exhibiting the nastiness he shows when backed into a corner, Trump went out of his way to attack Sen. John McCain, R-Az. Asked about McCain’s criticism of the alt-right, Trump shot back, “you mean Sen. McCain who voted against us getting good health care.” Then, in an especially distasteful quip, he added sarcastically, “I’m sure Sen. McCain must know what he’s talking about it.” McCain is under treatment for brain cancer.

By Wednesday the resignations of seven top industry leaders from presidential advisory councils led Trump to dissolve two of them. He didn’t hesitate to blast some of those who quit in protest for failing to bring jobs back to the United States.

Sprinkled throughout the press conference were attacks at the media. “I’m not finished, fake news,” he said when he thought a reporter was interrupting. At another point, he suggested his view would be better understood “if you were honest reporters, which in many cases you are not….”

“Unlike the media before I make a statement I like to know the facts … I had to see the facts, unlike a lot of reporters” — a claim that doesn’t pass the sniff test coming from the president who has lied more often in his first year of office than any other president.

But most disheartening was the ignorance of American history explicit and implicit in his comments. He defended the “very fine people” there because of “the taking down of, to them, a very, very important statue and the renaming of a park from Robert E. Lee to another name.” He said these protests were understandable when “you are changing history, you are changing culture” by taking down Confederate monuments.

Never mind that these “very fine people” were standing next to white supremacists and Nazi’s chanting, “Jews will not replace us.” Never mind that the city had changed the name from Lee Park to Emancipation Park. Never mind that Trump failed to see the difference between Robert E. Lee, a traitor who fought a war to destroy the United States, and George Washington, who fought a war to create it.

First Amendment

After the death of a counter-protester and two police officers, the ACLU and federal courts faced criticism for having forced the city to allow the demonstration in Emancipation Park, rather than another park a mile away.

As a matter of black letter law, U.S. District Judge Glen E. Conrad was right to issue an injunction forcing the city to allow the demonstration in Emancipation Park. The judge noted that the city had tried to move the white supremacists’ rally away from Emancipation Park, but had not revoked the counter-demonstrators’ permits for the area near that park. This amounted to discrimination against the white supremacists based on the content of their speech, which violates the First Amendment. http://ftpcontent.worldnow.com/wvir/documents/kessler-federal.pdf

But Slate’s Dahlia Lithwick and Mark Joseph Stern suggest future First Amendment cases may have to factor in the growth of the Second Amendment and open carry movement. They wrote:

“The judge (Conrad) failed to answer the central question: When demonstrators plan to carry guns and cause fights, does the government have a compelling interest in regulating their expressive conduct more carefully than it’d be able to otherwise? This is not any one judge’s fault. It is a failure of our First Amendment jurisprudence to reckon with our Second Amendment reality.” http://www.slate.com/articles/news_and_politics/jurisprudence/2017/08/the_first_and_second_amendments_clashed_in_charlottesville_the_guns_won.html

Josh Blackman, a professor at South Texas College of Law Houston, made a similar point in the Lawfare blog. He noted that Justice Robert H. Jackson had once cautioned that if the court “does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. https://www.lawfareblog.com/first-amendment-grounds-charlottesville

Twitter shaming

Another media-related First Amendment issue emerging from Charlottesville was the Twitter campaign – @YesYoureRacist – to shame white supremacists and neo-Nazis who attended the rally.

A first casualty was Cole White, a cook at a hot dog stand in Berkeley, Calif. who lost his job after he was outed as a demonstrator. White has no First Amendment protection because the amendment does not protect people from a private employer.

But Peter Cvjetanovic, a student and employee at the University of Nevada does have constitutional protection from the 10,000 petitioners who demanded him be expelled for his views.

The university said it rejected his views but added, “there is no constitutional or legal reason to expel him from our University or to terminate his employment.”

The university is right. As despicable as Cvjetanovic’s views are, they cannot be the basis of punishment by a state institution.

Those joining in the Twitter campaign might ask themselves how they would feel about a social media campaign to expel a member of Black Lives Matter or the anti-fascist Antifa group? They also might ask whether they want to be part of an online vigilante attack that sometimes mistakenly singles out lookalikes.

In an online piece of the New Yorker, the insightful journalist Robin Wright asks alarmingly, “Is America headed for a new kind of Civil War?” Wright quotes experts who warn America is not immune from the problems that befall other countries.

http://www.newyorker.com/news/news-desk/is-america-headed-for-a-new-kind-of-civil-war

But that is a risk we should be able to avoid as long as the press and courts check the power of this wayward president, as long as Republicans with the spine of Sen. McCain criticize Trump’s excesses and as long as the First Amendment provides a constitutional way for protesters, right and left, to vent their anger.

Time to send Donald Trump to time-out

By William H. Freivogel

Opinion

Almost every day, President Donald Trump behaves the way parents tell their children never to behave. He lies, boasts, berates friends, threatens foes, acts like a spoilsport, blames others for his failings, objectifies women, demands the spotlight and relishes flouting the norms of public behavior.

To many of his supporters, turning the world topsy-turvy is refreshing, even fun.

But Trump’s rude, crude behavior must be jarring to millions of good, decent people who voted for Trump only to find him violating every rule of good behavior.

Trump’s speech to Eagle Scouts in West Virginia this week was a classic. After promising not to be political, he attacked President Obama, Hillary Clinton and the “fake media.” Somehow he worked into his speech a six-minute story of meeting a failed real estate developer at a Manhattan cocktail party — with references to fabled exploits on his yacht.

Bill Kristol, the conservative commentator, tweeted after the speech, “He’s so far beyond the usual bounds of even vulgar politicians’ vulgarity….” Former CIA Director John E. McLaughlin tweeted, “Trump’s Boy Scout speech had the feel of a third world authoritarian’s youth rally.”

Trump’s everyday actions challenge the Scout motto of “trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent.” These are not character traits associated with the current president.

Think about the norms parents teach their children.

Don’t lie: This week Trump falsely blamed The New York Times for tipping off the leader of ISIS to a U.S. strike. He also claimed, “So many stories about me in @washingtonpost are Fake News.” These are among the 800-plus lies Trump told during the first six months of office, including fabrications about five million fraudulent voters for Hillary Clinton and Obama tapping Trump Tower.

https://www.washingtonpost.com/news/fact-checker/wp/2017/07/20/president-trumps-first-six-months-the-fact-check-tally/?utm_term=.4e3aa4ec041c

Don’t deceive yourself: A year after Russians came to Trump Tower to interfere with the presidential election in their meeting with Donald Trump Jr., the president continues to say he is not convinced the Russians interfered. In a remarkable exchange with CNN’s Jake Tapper, Trump’s new communications director, Anthony Scaramucci, said the Russians are too slick to get caught hacking. “Somebody said to me yesterday, I won’t tell you who, that if the Russians actually hacked this situation and spilled out those emails you would never have seen it,” Scramucci said. “They are superconfident in their deception skills in hacking.”

When Tapper pressed who the anonymous source was, Scaramucci responded, “How about it was the president.”

Be loyal to your friends: Attorney General Jeff Sessions, the first senator to support Trump for president, received a dose of Trump “loyalty” this past week. The president told the New York Times he wouldn’t have appointed him if he had known Sessions would recuse himself from the Russia investigation. In other words, Trump wanted Sessions to protect him from the criminal investigation of Russian interference in the election that threatens his family and his presidency, even though Sessions’ recusal was required by Justice Department policy.

Don’t shift blame to others: After telling the Times last week that Sessions’ recusals was “very unfair to the president,” Trump came back this week with tweets about the “beleaguered AG” whom he then beleaguered with the Tuesday morning tweet: “So why aren’t the Committees and investigators, and of course our beleaguered A.G., looking into Crooked Hillarys crimes & Russia relations?” Later in the day, he labeled Sessions “VERY weak,” something one doesn’t want to be in Trump’s administration of alpha males.

Don’t develop a persecution complex: Trump made it clear in the Times’ interview that the Russia investigation is Fake News pursued as part of a “witch hunt” by the mainstream media. He also criticized the acting director of the FBI, Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller, possibly as a prelude for firing one or more of them. He said Sessions’ recusal was “very unfair to the president.” He revised that Tuesday to say — inexplicably — it was unfair to the presidency, as if the presidency can’t withstand an attorney general’s proper recusal decision.

Don’t showboat: Trump starts most days by tweeting his grudges and grievances and grabbing the nation’s attention. Everything screams “look at me.” Look, I have big hands. Look, I attract the biggest crowds. Look, I’m really, really rich and smart and went to the best schools.

Don’t call people names: Trump has turned around this parental admonition and attached a nasty pejorative to every opponent. Crooked Hillary. Little Marco. Lyin’ Ted. Goofy (Elizabeth) Warren, alias Pocahontas. Low Energy Jeb. Crazy Bernie.

Then there are the norms of public life that Trump flouts.

He threatens to lock up political opponents such as Hillary Clinton. He ridicules cabinet members in public. He writes nasty, graphic tweets about women and their bodies. He refuses to embrace the unanimous conclusion of his intelligence agencies that the Russians tried to influence the election in his favor. He fires the FBI director after demanding loyalty and asking him to block a federal criminal investigation. His son meets with a Russian agent to get dirt on Clinton instead of reporting the contact to the FBI. Trump cuts off support for Syrian rebels, handing Russia a victory in Syria. He blasts federal judges for incompetence when they disagree with him. He calls reputable news organization fake and believes reports of disreputable news organizations. He told a Youngstown, Ohio, audience Tuesday night that he was trying to get beyond the filter of “Fake, fake, fake news.”

At one point in the Youngstown speech, Trump addressed the criticism that he is not presidential.

“Sometimes they say: ‘He doesn’t act presidential,’” Trump told the audience. “And I say: ‘Hey look; great schools, smart guy, it’s so easy to act presidential, but that’s not going to get it done.’ . . . It’s much easier, by the way, to act presidential than what we’re doing here tonight.”

He added, “With the exception of the late, great Abraham Lincoln, I can be more presidential than any president who has ever held this office. That I can tell you. It’s real easy.”

If it’s so easy, Mr. President, give yourself and the American people a breather and try a few months of being presidential.

The lies are catching up with Trump – a presidency imperiled

By William H. Freivogel

Opinion

False and misleading statements from President Donald Trump and the White House pile up day-by-day, week-by-week, steadily undermining the president’s credibility and making him the most unpopular president in modern history at the six-month mark.

Trump claims to have signed more bills than any other modern president. He hasn’t.

He blames the Democrats for killing the GOP health bill when it was the Republicans who couldn’t muster a majority.

His son first denies ever meeting with Russians about campaign issues, then admits meeting a Russian lawyer but says it wasn’t about the campaign, then admits he was promised a Russian government lawyer had dirt on Hillary Clinton, then releases emails expressing delight at the prospect of the dirt, then claims to have told everything about the meeting but leaves out other Russians in attendance.

Trump defends his son’s decision to meet with the Russians tweeting, “Most politicians would have gone to a meeting like the one Don jr attended in order to get info on an opponent. That’s politics!” But political operatives from both parties say it isn’t just politics to collude with agents of America’s chief adversary and the proper response would have been to call the FBI.

Trump’s lawyers say he is not under criminal investigation even though they have no way of knowing and the claim is difficult to believe. Robert Mueller was appointed special counsel after fired FBI Director James B. Comey disclosed the president asked him to drop the investigation of former National Security Adviser Michael Flynn – an act that is arguably obstruction of justice. And now there are reports Mueller is investigating the Trump Jr. meeting.

All of this lying and misleading is in the last 10 days alone. Before that Trump lied about President Barack Obama tapping Trump tower, about millions of illegal voters for Clinton, and of course there was the big lie that was a cornerstone of his campaign – that Obama wasn’t born in the United States.

One might have thought Trump would take a vacation from his refrain about the “dishonest” mainstream media and “fake news” as his son was the source of the documents about the Russia meeting. But there’s no stopping this president who tweeted a day later, “Remember, when you hear the words ‘sources say’ from the Fake Media, often times those sources are made up and do not exist.”

And this week, when the media disclosed that Trump and Russian President Vladimir Putin had an undisclosed meeting on the side of the G-20 summit – in which Trump spoke to Putin through the Kremlin interpreter – Trump complained bitterly “The Fake News is becoming more and more dishonest!”

Some of conservative commentators finally have lost patience. Last week Fox’s Chris Wallace said any fair-minded citizen should worry “about the fact that we were repeatedly misled about what this meeting concerned.” And Fox anchor Shepard Smith told Wallace, “Why is it lie after lie after lie? … My grandmother used to say … Oh what a tangled web we weave when first we practice to deceive. The deception, Chris, is mind-boggling.”

Then this week the Wall Street Journal editorial page called for “radical transparency” criticizing the Trumps for having “created the appearance of a conspiracy that on the evidence Don Jr. lacks the wit to concoct. And they handed their opponents another of the swords that by now could arm a Roman legion…. Denouncing leaks as ‘fake news’ won’t wash as a counter-strategy beyond the President’s base, as Mr. Trump’s latest 36 percent approval rating shows.” The brutal realities of Washington, the Journal warned, will “destroy Mr. Trump, his family and their business reputation unless they change their strategy toward the Russia probe.”

It is true that a PPP poll shows more than half of Trump’s supporters think Trump Jr. never met with the Russians, even though he admits it. But Trump’s low approval ratings show the lies have had a cost. As Trump’s overall approval rating has slipped, the percentage of strong Trump supporters has declined while the percentage of strong opponents has grown.

It will take months for Mueller to complete his investigation, but it isn’t too soon to say this presidency is imperiled.

Trump’s nonsense won’t undermine the First Amendment

opinion

by William H. Freivogel

President Donald J. Trump can spend his entire presidency threatening the press, calling it the enemy, branding real news fake and fake news real.  He can tweet crude attacks on female journalists and post nonsensical videos like the one of him beating up CNN in a parody of Wrestlemania.

But he never will succeed in diminishing the power of the press to hold him to account, nor will he diminish the First Amendment protection that the Constitution and an independent judiciary guarantee to the press as a check on presidential power.

The only thing that President Trump will diminish is himself as he cheapens the highest office in the land and the symbol of American democracy and might.

But many people are worried.

Over the weekend, I was at a party on a front porch in North Carolina enjoying the fireflies and the company.  A group of musicians wondered out loud whether Trump could undermine the press and stifle dissent as authoritarians do in other countries.

The next day, Jim Rutenberg, the New York Times’ excellent media columnist, wrote a gloomy Independence Day piece stating “one of the pillars of our 241-year-old republic – the First Amendment – is under near-daily assault from the highest levels of the government.”

Rutenberg had plenty of examples:

– Trump’s CNN attack parody.

– Trump’s crude tweet describing Mika Brezinski “bleeding badly from a facelift.”

– Trump’s veiled threat toward Jeff Bezos, head of Amazon and the Washington Post: “The #AmazonWashingtonPost, sometimes referred to as the guardian of Amazon not paying internet taxes (which they should) is FAKE NEWS!”

– Sean Hannity’s suggestion that reporters be required to submit questions to the White House in writing and Newt Gingrich’s call to close the White House press room to the media altogether because they have become “a danger to the country right now.” http://www.mediaite.com/online/gingrich-trump-needs-to-close-white-house-press-room-because-the-media-is-corrupt/

– The incendiary NRA commentary of former St. Louisan and conservative radio host Dana Loesch saying liberals “use their media to assassinate real news” leading to a “violence of lies” that needs to be combated with “the clenched fists of truth.” https://www.youtube.com/watch?v=XtGOQFf9VCE

And that was just last week.

Almost every week of his short presidency Trump has found a way to demean himself and cheapen the presidency.

He has done it when he lies, as with his claim that President Obama tapped Trump Tower. He has done it when he tells the truth, as when he said he was thinking about the Russia investigation when he fired FBI director James B. Comey.

He does it when he calls reliable news organizations such as The New York Times and Washington Post “fake” and then treats conspiracy theorists, such as Alex Jones and Hannity, as reputable.

He does it when he calls the Russia investigation fake news in the face of the unanimous intelligence assessment that Russia interfered in the presidential election to try to help elect Trump, thus subverting the most important quadrennial act of the most important democracy in history.

But Americans need not fear Trump will scare off professional journalists.  The tireless work of the Times, Post and other mainstream media dispels that fear.  Every journalistic instinct is to challenge politicians who abuse power.  Bullies like Trump don’t frighten journalists, they inspire them to dig deeper.

Nor does Trump have power to undermine the constitutional protection that the First Amendment explicitly provides the press.

The First Amendment protection for the press has grown steadily through American history as the Supreme Court has recognized broader and broader protections for all forms of media.

There was a time when newspaper editors criticizing President John Adams were jailed.  When Abraham Lincoln had draft resisters arrested and newspapers censored. When socialist presidential candidate Eugene Debs could be locked up for advocating resistance to the draft during World War I. When burning an American flag could get a protester jailed. When the Nixon administration could try to stop the publication of the Pentagon Papers, the secret history of the Vietnam War. And when Southern segregationists could threaten the national press with expensive libel trials before sympathetic juries to make it too expensive to cover the evils of segregation.

Thanks to the Pentagon Papers decision of 1971, the government can’t stop publication of national security secrets absent “direct, immediate, and irreparable damage to the nation.” Thanks to New York Times v. Sullivan in 1964, politicians’ ability to use libel suits to intimidate the press is mostly a thing of the past.  And there is nothing Trump can do about it because the courts can be counted on to enforce the constitutional standard protecting the press.

President Ronald Reagan is well remembered for speaking eloquently about America as a shining city on the hill. How sad the person elected to protect that shining city has dimmed its bright promise.

I offered a toast to my friends in North Carolina on this 4th of July to be grateful we live in a country that has a free and fearless press.

Fooling some of the people

Opinion

By William H. Freivogel

 

Two stories by mainstream media – an excellent one by the Washington Post and a terrible one by CNN – have provided President Trump more material for his fairy tales on Twitter.

The Post reported a heavily sourced and deeply researched story showing that President Obama reacted cautiously to the high-grade intelligence he received last August showing “Russian President Vladimir Putin’s direct involvement in a cyber campaign to disrupt and discredit the U.S. presidential race and help elect….Donald Trump.” The story reported Obama was slow releasing the information because he did not want it to appear he was trying to help Hillary Clinton win the election. https://www.washingtonpost.com/graphics/2017/world/national-security/obama-putin-election-hacking/?utm_term=.1c2d1b0eadff

Meanwhile, CNN retracted its story suggesting contact between a Trump associate and the Russians. The story has just one source. Three reporters and editors have now submitted their resignations for their involvement in the poorly sourced story, including Eric Lichtblau who won a Pulitzer Prize at The New York Times.

Trump pounced. Using his talent for semantic jujitsu, Trump tweeted that the Post story showed it was Obama who had failed to respond to Putin’s cyber attack and was guilty of collusion and obstruction – not he.

The president tweeted, “The reason that President Obama did NOTHING about Russia after being notified by the CIA of meddling is that he expected Clinton would win…and did not want to ‘rock the boat.’ He didn’t ‘choke,’ he colluded or obstructed, and it did the Dems and Crooked Hillary no good.”

This was an extraordinary switch of positions for a man who called during the campaign for Putin to hack Hillary Clinton’s emails, who suggested at a presidential debate the culprit may have been a 400-pound hacker or China and who, as president has called the Russia investigation a “witch hunt,” “phony” and a “Dem HOAX.”

About a week ago, Press Secretary Sean Spicer said he couldn’t say whether the president thought Moscow interfered in the election. “I have not sat down and talked to him about that specific thing.” Later Spicer said the president had accepted that there was some Russian involvement in the election but wouldn’t say whether he agreed with the intelligence assessment that Putin wanted Trump to win. Other countries might have been involved in the hack, Spicer said, without providing proof.

So we have the remarkable spectacle of a president who has been in full charge of the government for five months still hedging on the unanimous intelligence assessment that Putin tried to help Trump win. And we have a president who has done nothing to respond to the Russian interference in the election criticizing his predecessor for not having responded forcefully enough.

When late last week CNN retracted its story linking a Trump transition official to the Russia investigation, Trump tweeted it showed the mainstream media was peddling fake news.

“Wow, CNN had to retract big story on ‘Russia,’ with 3 employees forced to resign,” he tweeted. “What about all the other phony stories they do? FAKE NEWS!”

He followed with another Tweet taking after other mainstream news organizations. “They caught Fake News CNN cold, but what about NBC, CBS & ABC? What about the failing @nytimes & @washingtonpost? They are all Fake News!”

CNN definitely violated important standards of journalism in publishing the story based on one source. It deserves the criticism.

But the New York Times and the Washington Post have provided strong, traditional investigative reporting, including the Post’s report revealing that Michael Flynn had talked to the Russian ambassador last December about easing sanctions, even though Flynn had denied it. The Post story led to Flynn’s resignation as national security adviser and the president’s improper request to then-FBI Director James Comey to let go of its criminal investigation of Flynn. That, in turn, is an important part of a possible obstruction of justice case against Trump.

Trump’s twisting of the truth into convenient fairy tales recalls a quote attributed to Abraham Lincoln. “You can fool all of the people some of the time, and some of the people all of the time, but you cannot fool all of the people all of the time.”

Living in a Fox-Limbaugh-Breitbart fantasy

Opinion

By William H. Freivogel

 

Many Americans are living in a fantasy world constructed by Fox News, Rush Limbaugh, Breitbart News and right-wing bloggers.

In this fantasy world:

  1. President Donald Trump has more credibility than James B. Comey, the man he fired as FBI director.
  2. Comey has perjured himself by first testifying he wasn’t ordered to drop any investigation into Trump associates and then testifying last week that Trump asked him to drop the criminal investigation of former national security adviser Michael Flynn.
  3. It is Comey, not Trump, who committed a crime, leaking his contemporaneous notes of Trump’s request to drop the investigation.
  4. Comey has cleared the president of obstruction of justice.
  5. And then there was the surreal cabinet meeting at which, Trump said he was just about the most successful president in history and his cabinet and staff kowtowed with statements of how blessed they were to work for him.

Now take off those Fox-colored glasses and re-enter the reality.

  1. Comey is a truthteller. Trump has lied more over a short time than any president in history.

Comey – a registered Republican longer than Trump – has lived the life of a straight-arrow lawyer and law enforcement official. As George W. Bush’s deputy attorney general he rushed to John Ashcroft’s hospital bedside to make sure the White House didn’t pressure the ill attorney general to reauthorize a warrantless surveillance program the Justice Department thought was illegal.

In the rare instance where Comey makes a factual mistake in testimony, he quickly corrects the record.

Meanwhile when Trump lies, he refuses to admit it – think Obama wiretap charges.

Most Americans get this. A YouGov poll shows 46 percent of Americans believed Comey was more trustworthy and 26 percent Trump. But in the alternative media universe inhabited by Trump voters, 70 percent thought Trump more trustworthy as compared to 7 percent who believed Comey.

  1. Comey did not lie or perjure himself. That false news story began with right-wing conspiracy theorist, Jack Posobiec, who styles himself a White House correspondent. In the weeks before last fall’s election, it was Posobiec who spread the dangerous nonsense about Hillary Clinton running a child sex ring out of the back rooms of Comet Pizza in Washington, D.C.

This time, Posobiec tweeted that in testimony in early May Comey had “said under oath that Trump did not ask him to halt any investigation.”

Actually, Comey had been asked if “the attorney general or senior officials at the Department of Justice” had ever tried to halt an investigation. He said no. He was not asked if Trump had asked him to halt an investigation. So when he testified last week that the president had asked him to drop the investigation of Flynn, he was not contradicting earlier testimony.

Facts be damned; the Posobiec tweet ricocheted through conservative media. The New York Times traced its path. Breitbart published a story headlined: “Comey Under Oath: ‘Have Not Experienced Any Requests to Stop FBI Investigations.’” GotNews.com, a Trump favorite that has distorted reports on the Russia investigation, upped the ante by suggesting Comey may have perjured himself.

InfoWars, run by conspiracy theorist Alex Jones, picked up the perjury angle. Jones is the “journalist” who says 9/11 was a U.S. black bag job and that no children died at the Sandy Hook elementary school massacre. Then Limbaugh read the GotNews.com article on air and called the Russia investigation a “witch hunt.” And Fox’s Sean Hannity picked up the story, claiming it showed Comey himself had admitted the Trump request to drop the Flynn investigation “never happened.”

  1. Comey did not commit a crime by leaking his notes of the Trump meeting.

Comey acknowledged the leak without hesitation during testimony. This is not an illegal leak, such as revealing classified information. The memo was not classified and did not contain national security secrets. Comey’s leak of the memo is better understood as whistleblowing than leaking.

https://lawfareblog.com/sharing-memos-comey-did-nothing-wrong-former-official-and-everything-right-whistleblower

  1. Comey never said Trump was not under investigation for obstruction of justice.

On last Sunday’s “This Week” program, Trump lawyer Jay Sekulow, who moonlights as a Fox legal analyst, challenged the credibility of Comey and Special Counsel Robert S. Mueller III and baldly asserted “it was made very clear from the FBI director on multiple occasions that the president had not been and was not under investigation for obstruction of justice.”

In fact it wasn’t clear or even implied. Comey declined to make a conclusion about obstruction of justice, properly leaving that legal judgment to Mueller. “I don’t think it’s for me to say whether the conversation I had with the President was an effort to obstruct,” he testified. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to what the intention was there and whether that’s an offense.”

Comey said he had leaked his memo to trigger the appointment of a special counsel. So the gist of Comey’s testimony was the opposite of Sekulow’s claim. Rather than saying the president is not under investigation for obstruction, Comey made it clear he thought the act was so disturbing that there needed to be a special counsel to investigate the president on possible obstruction. In other words, even though the White House ballyhooed the claim that Comey had cleared Trump, Comey’s testimony strongly suggest Mueller is investigating the president for possible obstruction.

As former Watergate prosecutor Philip Allen Lacovara wrote in the Washington Post, “Any experienced prosecutor would see….a prima facie case of obstruction of justice.”

Trump puts Comey’s job in play, demands loyalty, repeatedly asks him to remove the cloud of the Russia investigation, asks him to drop the Flynn criminal investigation, reportedly asks intelligence chiefs to intervene with Comey, fires Comey because of the Russia investigation and tells the Russians the firing relieves the pressure of the investigation.

Alan Dershowitz, the Harvard law professor who is Fox’s favorite commentator of late, claims the president can shut down any investigation he wants and can fire anybody he wants because he is totally in charge of the executive branch. This may have been the case before Watergate, but the Supreme Court rejected that view in 1988 in saying it was not “so central to the functioning of the executive Branch” for the president to be able to torpedo investigations of himself and aides. https://lawfareblog.com/view-supreme-court-alan-dershowitz-wrong-about-powers-president

  1. A cabinet meeting like no other.

The most surreal moment of the week, however, was not the made up charges of the right-wing media, but rather the actual video of Trump’s first full cabinet meeting.

The president who has yet to get a major bill through the GOP Congress, bragged “Never has there been a president, with few exceptions…who has passed more legislation….” As cabinet and staff heaped praise on Trump, Chief of Staff Reince Priebus’s comment stood out as he thanked Trump for “the blessing that you’ve given us to serve your agenda.”

In the real world, one of those blessings was Trump’s reported ultimatum that Priebus had until July 4 to clean up the White House’s dysfunctional staff. http://www.politico.com/story/2017/06/11/donald-trump-reince-priebus-deadline-239411

 

Tweets, leaks and the truth about Trump

Commentary

by William H. Freivogel

President Donald J. Trump is playing his supporters for patsies. The First Amendment protects Trump’s lies to his Twitter followers, but it also protects the leaked stories that reveal them.

Trump calls the burgeoning investigation of Russia’s interference in the presidential election “fake news” and a “witch hunt,” even as the investigation threatens his presidency.

He calls the Washington Post and New York Times “fake news” organizations, when they are among the nation’s best journalists and have provided the most accurate picture of what is happening in his White House.

Trump calls his trip to the Middle East and Russia a “homerun,” even though he alienated the most important elected leader on the European continent.

A spokeswoman speaks adoringly of a president who has “a magnetic personality….brilliant with a great sense of humor,” while press accounts describe an angry president lashing out at his aides,

Trump brags about draining the swamp while he appoints record numbers of billionaires and Wall Street insiders.

Trump promises health care for everyone but pushes a bill that takes it away from 23 million Americans and gives millionaires $600 billion in tax breaks.

Trump claims he would have won the popular vote if millions of illegal aliens hadn’t voted for Clinton, yet still has nothing to prove it.

Fox News, often Trump’s propaganda arm, discloses the Seth Rich conspiracy theory that the Democratic National Committee staffer was murdered because he – rather than the Russians – leaked the DNC emails to WikiLeaks. Fox eventually retracted the story, but its leading pundit, Sean Hannity, is retracting nothing.

While the Times is disclosing Trump relayed “code word” intelligence to the Russian ambassador in the Oval Office, Breitbart headlines the bogus Seth Rich conspiracy, criticizing “Silence from Establishment Media over Seth Rich WikiLeaks Report.”

Trump says the big story is the leaks to the press, which his Homeland Security chief John Kelly calls “darn close to treason.” But without the leaks Americans wouldn’t know of Trump’s leak to the Russians, or Flynn’s conversations with the Russian ambassador, or Jared Kushner’s attempt to set up a back channel to Putin on Russian diplomatic facilities or Trump’s request of former FBI Director James Comey to ease off the investigation of Flynn.

British Prime Minister Theresa May had every reason last week to be upset that information about the Manchester terrorism attack was leaked to American media, including the New York Times. She is right that British intelligence has to be able to count on American intelligence to protect secrets. Trump’s call for an investigation of the leaks was appropriate.

But America is not Britain. We have the First Amendment and Britain has the Official Secrets Act.

In Britain, the government can stop the media from publishing top secret information. In the United States the government almost never can stop publication.

That is the lesson of the 1971 Pentagon Papers case when President Nixon tried to stop the New York Times’ publication of stories based on the 40-volume secret history of the Vietnam War showing presidents had lied to the American people. Our government can only stop publication where there is “direct, immediate, and irreparable damage to our Nation or its people.”

Presidents have made audacious claims of harm from leaks. Nixon claimed thousands more Americans would be killed in Vietnam. President George W. Bush told Times’ editors in the White House that the blood would be on their hands if they disclosed that the National Security Agency was tapping Americans’ conversations without a warrant. President Barack Obama’s administration claimed NSA meta-data collection revealed by Edward Snowden was instrumental in combating 50-plus terrorism attacks.

None of those things happened. Nixon’s solicitor general, Erwin Griswold, admitted later that the Pentagon Papers harmed no one. No terrorist attacks are linked to the revelation of the Bush era wiretaps. And close analysis showed the NSA programs revealed by Snowden had not thwarted terrorist attacks.

Rather than causing harm, these disclosures helped the nation come to grips with the mistakes of the Vietnam War and the excesses of government surveillance.

This isn’t to say that journalists should disclose every secret. Reputable news organizations like the Times and Post contact top government officials before publication and withhold details that could pose harm. But the final decision on publication must remain with the editors, not the officials. That’s what the First Amendment commands.

What the First Amendment cannot command is that our public officials or our media always tell the truth.

Breitbart and Hannity can claim without proof that Seth Rich was murdered for supposedly providing the hacked DNC emails to WikiLeaks. It’s up to the much-maligned mainstream media (MSM) and the people to hold up those claims to the facts and the unanimous judgment of Western intelligence that it was the Russians who provided the hacked information. There is no more evidence of a Democrat assassin than there is of those fraudulent voters in the last election or of President Obama ordering Trump Tower tapped or of Hillary Clinton’s mythical child sex ring at Comet Pizza.   http://www.billofrights225.com/the-presss-identity-crisis/

Trump can claim the Times, Post and other reputable media are purveyors of Fake News. It’s his First Amendment right. But when asked for proof, the White House produces only a couple of quickly corrected reportorial errors on the Martin Luther King bust and Trump’s earpiece for listening to a translation. The substantive disclosures reported by the Times, Post and others have not been rebutted.

Ironically, Trump is almost as likely commit truth in his Twitter outbursts as to lie. He acknowledged thinking about the Russia investigation at the time he fired Comey – an act that could be part of a case of obstruction of justice. No longer does there have to be evidence of Trump collusion with the Russians in the election espionage. It’s enough to prove Trump tried to quash the Russia investigation. No one proved Nixon knew of the Watergate burglary, just that he covered up.

Congress, the professional press and Special Counsel Robert Mueller have many months of important work ahead to find the facts and determine if crimes or impeachable offenses were committed. The final verdict, however, will rest with the people whom the president is playing for patsies.

Confidential source stories check presidential abuse of power

Commentary

by William H. Freivogel

Confidential sources are the lifeblood of reporting about abuses of power by high government officials. Source reporting provides a vital check on presidential power.

If the Washington Post hadn’t relied on confidential sources to report about Michael Flynn’s discussions with the Russian ambassador, Flynn might still be the National Security Adviser. President Trump had known about the discussions for two weeks but fired Flynn only after the public disclosure in a source story.

If the Washington Post hadn’t relied on Deep Throat – Mark Felt, the associate director of the FBI – President Nixon’s Watergate abuses of power might never have been fully disclosed.

So this week, the Post acted properly in reporting the information from unnamed “current and former U.S. officials” that Trump had jeopardized an important intelligence source providing information about ISIS. In a boast, Trump reportedly disclosed to the Russian foreign minister and ambassador the city in the Islamic State from which an allied intelligence agency was getting this “code word” intelligence.

And The New York Times acted properly this week in relying on an unnamed source who read them a memo written by fired FBI Director James Comey describing how Trump asked him to shut down the FBI investigation of Flynn.

It is in the public interest for the American people to know how carelessly the president is handling top secret information. It is in the public interest for people to know that Trump may have taken steps to obstruct justice.

The stories are two of many disclosures from confidential sources that have painted a vivid picture of a president out of control. The unnamed sources took extraordinary risks in providing the information to the Post because they may be committing a crime.

This doesn’t mean that all confidential leaks are good. The Bush administration leak that Valerie Plame was a spy did not blow the whistle on wrongdoing by the powerful – it was the powerful trying to punish the whistleblower – in this instance, Plame’s husband, Joseph Wilson who debunked President Bush’s false State of the Union claim about Saddam Hussein getting yellow cake uranium from Niger.

Nor were Judith Miller’s stories about Saddam’s weapons of mass destruction – sourced to unnamed government officials – in the public interest. They primed the pump for war.

And more recently, the publication by WikiLeaks of secrets apparently hacked by Russian intelligence from the Democratic National Committee helped our major adversary destabilize our presidential election. Russian agents stealing secrets online is worse than former CIA agents burglarizing the Democratic National Committee at the Watergate.

Journalism ethics properly urge news organizations to try to get information on the record. But when writing about secrets or the powerful, that’s difficult. Prominent whistle blowers whose identities became known – Daniel Ellsberg, Chelsea Manning and Edward Snowden – were charged with espionage for their leaks – even though the Pentagon Papers and NSA data-mining leaks were in the national interest.

Publishing national security secrets is one of the ways in which the press checks the power of the modern presidency. Justice Potter Stewart said as much in the Pentagon Papers decision opening the way for publication of the top-secret history of the Vietnam War. Stewart wrote: “In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.”

The notion that an alert, aware and free press helps create an enlightened citizenry may seem old-fashioned these days when partisans and the president label news they don’t like fake news. But the professional press’ role in informing the people has seldom been more important.

 

From Deep Throat to WikiLeaks

 

Publishing national security secrets