Fourteenth Amendment Solutions

Many denizens of the Interwebz, casting about for lawful means by which we might rid ourselves of the wannabe kleptocrat in the White House, have raised the idea of "Twenty-fifth Amendment Solutions," referring to the mechanism for removing from office a president who is incapable of carrying out his duties.  (Brad DeLong, for example.)

Apropos of my previous post on treason, it seem pertinent to mention "Fourteenth Amendment Solutions."  Specifically:

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

I wonder how many Senators, Representatives, and executive branch employees might face disqualification should a jury be persuaded that Russia's activities against the United States constitute actual hostilities.

Setting the Table for Treason

Suppose for the moment that Robert Mueller wanted to bring charges of treason against Americans in connection with L'Affaire Russe.  (Yeah, I know. But bear with me.)  What would that look like?  What steps would Mueller have to take to "set the table," so to speak, for treason charges?

By now, most of us following the Special Counsel's investigation know the Constitutional formula by heart: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."  Now, the "levying War" provision has traditionally been invoked only in cases of armed uprisings like the Whiskey Rebellion or the "Battle" of Blair Mountain, so let's assume that it's not at issue here.  To successfully charge Americans with treason, Mueller would therefore have to prove that they had (1) given aid and comfort (2) to an enemy.  

What counts as "aid and comfort?"

Rather than try to answer that question in the abstract, let's look at how it has been defined in actual treason prosecutions.  Remarkably, four of the six Americans convicted of treason against the United States since the end of the Civil War were prosecuted for their role in the creation and dissemination of enemy propaganda targeting Americans.  Specifically: Martin James Monti, Robert Henry Best ("Mr. Guess Who"), Iva Toguri D'Aquino ("Tokyo Rose"), and Mildred Gillars ("Axis Sally"). So, wherever the exact boundaries of "aid and comfort" lie, it seems pretty clear that assisting in the creation and dissemination of enemy propaganda falls definitively within them.

Coincidentally, what I'll call "Russia Indictment #1," relating to the social media activities of the Internet Research Bureau, alleges the existence of a covert Russian propaganda operation targeting Americans.  

Who counts as an "enemy?"

Writing in the Washington Post, UC Davis law professor Carleton F.W. Larson asserts that, "enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war . Nations with whom we are formally at peace, such as Russia, are not enemies." 

But curiously, if you follow the link Professor Larson supplies in support of his claim, you read Sir Michael Foster (1762) saying the following:

States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed. And the Fact, whether War or No, is triable by the Jury; and Publick Notoriety is sufficient Evidence of the Fact.

That is, Larson's citation is to a source which says exactly the opposite of what Larson claims.  Specifically, a formally declared war is not a requirement for a state to be an enemy, and whether a state is in "actual hostility" is not "defined very precisely" by law, but is rather a triable question of fact.  (And where Professor Larson gets the idea that enmity, if undeclared, must be "open war," placing the rendering of aid to a state engaged in covert, undeclared hostilities outside the bounds of treason, is a mystery to me.)  

So, who counts as an "enemy?" If Sir Michael is right, an enemy is a state which a jury finds to be engaged in "actual hostility" with the United States.  

Coincidentally, what I'll call "Russia Indictment #2," relating to the hacking of the DCCC, the DNC, and the Clinton campaign, alleges that the Russian armed forces (the GRU in particular), acting on the instructions of its national command authority, planned and carried out a series of military operations against the United States on American soil.  (The indictment goes as far as naming specific, uniformed officers of the Russian military who carried out the operations.)  That is, the indictment alleges facts that might persuade a reasonable jury that Russia was not merely a "competitor" or "adversary," but an enemy engaged in actual hostilities with the United States.

Returning to our original question: what would it look like if Mueller were "setting the table" for bringing treason charges against Americans in connection with L'Affaire Russe?  It turns out that it might look a lot like the two "Russia Indictments" we've seen to date.

Speaking of releasing memos

Today may be a good day to reflect on James Comey's apparent motive for releasing the memo which made Donald Trump president: to protect the institution of the FBI from retaliation by vindictive, partisan Republicans in Congress. 

How's that working out so far?

Note to Moderates, Centrists, and Independents

When 72% of Republicans say that Donald Trump is "a good role model for children," it is time to start calling yourself a Democrat. 

#JoinTheOpposition

2018 Conjectures

I wont call them "predictions," but I want to put a couple of conjectures about the events of 2018 on the record now, so I can claim astounding prescience later.

Donald Trump will Resign the Presidency before November, 2018

More specifically, I expect him to resign sometime between May and July 2018, having received assurances that Vice President Pence will use the pardon power and other powers of the Presidency to protect Trump and his family from further investigation and potential prosecution.  This will be sold to the President as a strategy to pull the rug out from under his opponents, to cement his legacy, and to say that the new President is his hand-chosen successor.

If the President does not agree, Vice President Pence, Speaker Ryan, and Majority Leader McConnell will rally the Cabinet and Congress to, regretfully, invoke the 25th Amendment due to the President's deteriorating "health."

In either event, the Trump Administration will end three to six months before the mid-term Congressional elections.  (Acting) President Pence rallies evangelicals and Republicans who have grown tired of apologizing for the disgraced Game Show Host in Chief. GOP losses in the House are safely limited.  Crowd goes wild.

Russia Investigation Part 1: Keystone KGB

By the end of 2018, there will be sufficient information on the public record to construct an accurate narrative of the Russian government's activities related to the 2016 election. It will be a mess. We will start to distinguish between amateurish personal initiatives -- like the Russian State Prosecutor's effort to do some kind of deal with Don Jr. -- and the activities of the GRU (Russian military intelligence) and the SVR (Russian foreign intelligence). The intelligence services will turn out to be more organized, but frequently at cross-purposes with one another.  Ultimately, we will understand the Russian "initiative" as a motley assembly of shady characters trying to put one over on the collections of dimwits and half-wits that constitute the Trump inner-circle. Most of them will turn out to have succeeded.

Russian Investigation Part 2: Hey, where'd my money go?

Listening to Donald Trump giving interviews, in the White House or back on the campaign trail, who among us has not thought, "How is it possible that a guy this clueless hasn't been robbed blind by his business associates?"

I offer this conjecture: it is not possible. And, as somebody wise -- Einstein or possibly Basil Rathbone -- once said, once you have eliminated the impossible, what remains, no matter how improbable, must be true. Which is to say, any serious inquiry into the finances of the Trump Organization will reveal that somebody has made off with all of Trump's money, leaving debt and worthless paper behind. Robert Mueller's money-laundering investigation would count as a "serious inquiry," by the way.

Sooner or later, someone is going to tell Trump. Hijinks ensue.