In a Labor Day tweet, President Donald Trump took Attorney General Jeff Sessions to task over the indictments of two Republican congressmen — one for insider trading, the other for misusing campaign funds.  “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff …”

CNN legal analyst Jeffrey Toobin responded on the network’s “New Day” program: “This tweet alone may be an impeachable offense,” because it is “so contrary to the traditions of the Department of Justice.”

Can a presidential tweet — and especially this tweet in particular — be an impeachable offense?

Short answer: Yes.

Longer answer: The US Constitution envisions impeachment for two specific offenses (treason and bribery) and for other not specifically defined offenses (“other high Crimes and Misdemeanors”).

That second category does carry historical meaning, but the meaning is broad and, more importantly, determined politically and in the moment. Which means that pretty much anything can be an impeachable offense.

A “high crime” is not a crime of some particular severity. Rather, it is a crime committed by someone serving in a “high” government position that carries  obligations above and beyond those binding a private citizen. The president of the United States is obviously such a person.

The first conviction handed down by the US Senate pursuant to impeachment in the House was of a federal judge for the “high crime” of chronic intoxication. Not a crime at all for you or for me, but antithetical to a judge’s obligation to not go mentally self-impaired in the performance of his duties.

President Andrew Johnson was impeached for, though not convicted of, “high crimes” including making speeches which “attempt[ed] to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States.”

It’s not a stretch to put Trump’s tweet in the same category as those offenses. He’s a high official, publicly and corruptly calling on a government agency which he’s obligated to oversee honest operation of to give members of his party free passes on their own “high crimes” because there’s an election coming soon.

Republicans in Congress complained bitterly when former FBI director James Comey and the Obama Justice Department gave Hillary Clinton exactly such a free pass on her grossly negligent handling of classified information in the run-up to the 2016 presidential election. Will congressional Republicans apply the same implied standard to Trump?

Yes, whether or not Congress deems Trump’s tweet a “high crime” is indeed a  political question.  It’s all about the votes — at the Capitol and, come November, at America’s polling places.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

“It’s called flipping and it almost ought to be illegal,” US president Donald Trump said in a recent Fox News interview. “I know all about flipping …. Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go.”

Self-serving? Sure. The president’s former attorney, Michael Cohen, recently struck a deal with federal prosecutors to plead guilty to several crimes — and testified that then-candidate Trump had directed him to make an illegal campaign contribution. In return for his cooperation, he expects a lighter sentencing recommendation from those prosecutors.

Self-serving, yes, but also true. The American criminal justice system is shot through with the behavior in question. The “flipping” President Trump describes isn’t something that “almost ought to be illegal.”  It’s something that IS illegal.

Title 18, Section 201 of the United States Code provides that “Whoever … corruptly gives, offers, or promises anything of value to any person … with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court … shall be fined under this title … or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.”

The same section similarly forbids seeking or accepting such inducements. And it includes no exceptions for prosecutors hunting bigger game than they’ve already cornered, or for defendants expecting lighter sentences — certainly things “of value” — if they agree to serve as those prosecutors’ hunting dogs.

If the goal of the American “justice” system is indeed to seek justice, prosecutors should charge defendants with the actual crimes they  can prove those defendants committed and judges should levy the penalties prescribed for those crimes, assuming the laws and penalties are indeed just (that’s a different question).

But that’s not the goal, as many prosecutors see it. The goal is to horse-trade toward more and bigger convictions by simultaneously bribing and extorting defendants, offering reduced charges and sentences in return for guilty pleas and “cooperation,” often initially “over-charging” those defendants so there’s more on the auction block.

If, as rumored, every prosecutor sees a future attorney general, governor, or even president in the morning mirror, then above and beyond the aforementioned crimes,  “flipping” becomes a matter of soliciting and receiving illegal campaign contributions, doesn’t it?

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

• “Prosecutors | Flipping Off the Law with Impunity,” by Thomas L. Knapp, Ventura County, California Citizens Journal, 08/31/18
• “Prosecutors: Flipping Off the Law with Impunity,” by Thomas L. Knapp, OpEdNews, 09/01/18
• “Flipping off the law,” by Thomas L. Knapp, Greenville, North Carolina Daily Reflector, 09/03/18
• “Prosecutors: Flipping Off the Law with Impunity,” by Thomas L. Knapp, CounterPunch, 09/03/18
• “Prosecutors are flipping off the law with impunity,” by Thomas L. Knapp, Hendricks County, Indiana Flyer, 09/04/18
• “Prosecutors: flipping off the law with impunity,” by Thomas L. Knapp, Florence, South Carolina News Journal  (web and print editions), 09/04/18
• “Prosecutors: Flipping Off the Law with Impunity,” Uintah Basin, Utah Standard/Vernal Express (web edition and two print editions), 09/04/18
• “Prosecutors: flipping off the law with impunity,” Middletown, Connecticut Press (web and print editions), 09/11/18
• “Prosecutors: flipping off the law with impunity,” Torrington, Connecticut Register-Citizen (web and print editions), 09/11/18

“[A] political party which wishes to lead,” reads the preamble to the Democratic Party’s charter, “must listen to those it would lead, a party which asks for the people’s trust must prove that it trusts the people …”

On August 25, the Democratic National Committee took that passage to heart by limiting the power of “superdelegates” in choosing the party’s presidential nominee. Good move, and long overdue.

Proximate inspiration: The disastrous 2016 presidential cycle, in which superdelegates played a key role in assuring the nomination of Hillary Clinton (and the election of Donald Trump) by giving Clinton a seemingly insurmountable early advantage over insurgent Bernie Sanders. Backroom work by the DNC itself to engineer that outcome — exposed in a WikiLeaks email dump — made cries for reform  inevitable.

In fact, the “superdelegate” system worked precisely as intended in 2016, and  it has belied the Democratic Party’s claim to represent “the people” since its adoption in 1984.

In 1981-82, the Hunt Commission met to develop a party response to two major defeats: George McGovern’s 49-state loss in 1972, and Jimmy Carter’s 1980 failure of re-election.

As Branko Marcetic explains in “The Secret History of Super Delegates,” the party had previously reformed its process after 1968, moving the party’s center of nomination power out of smoke-filled rooms and into the hands of primary voters. As a result, McGovern and Carter won their nominations by going around the party establishment and directly to “the people.” The Commission’s solution to “restore balance” was a special class of delegate, the superdelegate, of perceived superior political judgment.

Superdelegates make up nearly 1/6th of national convention delegates, and they are by definition party insiders: DNC members, governors, members of Congress, and former presidents, vice-presidents, congressional leaders, DNC chairs.

Unlike regular delegates, who are bound by primary and caucus results, superdelegates theoretically answer to no one. They’re free to support any candidates they like, for whatever reasons they think important.

But that freedom from constraint, in addition to alloying the party’s supposed internal democracy with an elite semi-veto, is illusory. Superdelegates — officeholders hoping to be re-elected, or up-and-comers planning future campaigns — rely on the DNC itself for support. Superdelegates have every incentive to vote for whomever the DNC favors, so that the DNC will favor THEM.

In 2016, Hillary Clinton’s campaign and then-DNC-chair Debbie Wasserman Schultz weaponized the superdelegate system to make Clinton seem “inevitable” even where the popular vote said otherwise.

When Sanders whipped Clinton by more than 22 points in New Hampshire’s first-in-the-nation primary, the two came out of the state with the same number of delegates in hand due to superdelegate pledges of fealty to Clinton. When Clinton lost she tied. When she tied she won. Inevitable! And that depressed turnout for Sanders in later states.

In 2020, superdelegates won’t be allowed to vote on the first presidential nomination ballot unless that vote is purely ceremonial because there’s an obvious winner from the popular voting. The superdelegates only vote effectually if “the people” can’t decide the first time around. A little more democratic that way, don’t you agree?

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY