Storming the SCIF

On Wednesday, October 23, 2019, a day that will live in infamy, roughly two dozen Republican Congressmen led by Rep. Matt Gaetz of Florida stormed the House Intelligence Committee Hearing Room, delaying the scheduled interview of Deputy Assistant Defense Secretary Laura Cooper as part of the impeachment investigation into President Donald Trump. Ms. Cooper, who was about to begin testifying when the “storm-the-room” political stunt disrupted the proceedings, was forced to vacate the hearing room for about five hours before order was finally restored.  

Ironically, many of the Republican Congressmen who joined in this orchestrated chaos were entitled to participate in the hearing, which was open to all members of the Intelligence, Foreign Affairs and Oversight Committees. Republican members of those committees were also given equal time to cross-examine witnesses, even though they were in the minority and had less than 50% of the members of those committees.  

Most disturbingly, many of the Republican protesters breached the tight security restrictions surrounding the hearing room by bringing their cell phones and other electronic devices into this Sensitive Compartmented Information Facility (“SCIF”), knowing full well that even when a cell phone is turned off, it can be turned into recording or surveillance device by an adversaries’ intelligence services. 

The disruption came one day after Bill Taylor, the U.S.’s top diplomat in Ukraine, gave devastating hearing testimony, confirming that the White House had specifically held up desperately needed military aide to Ukraine in return for a public announcement by Ukraine President Volodymyr Zelensky that his country was investigating the conspiracy theories designed to exonerate Russia for its interference with the 2016 U.S. presidential election and targeting Joe and Hunter Biden for alleged “corruption.” 

The disruption was apparently carefully planned in advance and had the full backing of President Trump, who had met with some key Republican lawmakers the night before and approved of their planned legislative assault the next day. Trump had been complaining about the lack of support and “push back” from Republicans on the House impeachment inquiry, and some physical demonstration by the Republicans seemed to be one of their few remaining options. 

After all, there is an old saying among lawyers that when you have the facts on your side, you pound on the facts; when you have the law on your side, you pound on the law; and when you have neither the facts or the law on your side, you pound on the podium. Trump and his die-hard supporters apparently realize that the factual record of the impeachment inquiry is quickly painting a starkly disturbing portrait of a president who is willing to sacrifice the national interests of the U.S. and the security of one of its staunchest allies on the alter of his own self-interest and political expediency. Republicans also know that this factual record of a massive abuse of presidential power is beginning to squarely fall into the “high crimes and misdemeanor” category that is, in and of itself, more than enough to result in a positive impeachment vote on at least one article of impeachment. With both the facts and the constitutional law lining up against them, Trump and his rabid Republican supporters in Congress decided that they only had one remaining option, which was to unleash the “pound the podium” tactics that have been used so effectively by fascist, communist and other authoritarian forces throughout history to destabilize democratic institutions.     

On February 27, 1933, the Nazi Party finally succeeded in its goal of destroying the last democratic bastion of the struggling Weimar Republic by burning down the Reichstag – the German Parliament — precisely four weeks after Adolph Hitler had been sworn in as the Chancellor of Germany. This was the culmination of years of escalating violence and intimidation both within and outside the Reichstag by Nazi political leaders and their thuggish “brownshirt” storm troopers, which eventually tore apart the fragile democratic German republic, consolidated all state power in the hands of one leader and his fascist party, and plunged Europe and the world into war and chaos. 

Trump’s MAGA rallies have increasingly come to resemble the massive Nuremberg rallies that Hitler and his Nazi party used to prepare Germany and its youth for another world war that would inevitably lead to a glorious Third Reich that would last 1000 years. The American Nazi Party tried to transplant this ideology to this country, and Trump’s recent rally in Phoenix attended by 20,000 of his true believers was eerily reminiscent of the 1939 Nazi Rally in New York’s Madison Square Garden, which also set record attendance levels for those who found the fascist message of hate and prejudice to be irresistible. 

More recently, Putin and his autocratic cronies have used state-sponsored violence and terror to silence the press and to neutralize and eliminate all significant political opposition both in Russia and other former Soviet states that are still in the Russian orbit. In Russia itself, physical altercations between and among members of the Russian Duma (Parliament) over the span of many years has served Putin’s purposes by bringing the entire institution into disrepute and further consolidated Putin’s unchallenged executive power. 

Similarly, in Ukraine, in what BBC has referred to as the “Rumbles in the Rada,” legislative debates over Ukraine’s official language policy and other matters have repeatedly devolved into fist-swinging, clothes-ripping brawls among sweaty, screaming members of parliament. During the presidency of pro-Russian Viktor Yanukovych, pro-Russian members of the Party of Regions staged several legislative assaults on pro-democracy and western-leaning legislators who opposed the recognition of Russian as Ukraine’s second official language and who opposed Yanukovych’s heavy-handed attempts to deliver Ukraine back into the arms of Putin and his Kremlin cronies. After one particularly brutal confrontation, Volodymyr M. Lytvyn, the speaker of the Ukrainian Rada, expressed the common view that Ukraine was on the verge of a “total collapse of parliamentarianism in the country.” 

Indeed, the efforts by the pro-Russian president of Ukraine and his allies to destabilize Ukraine’s fledgling and beleaguered democracy may well have succeeded if it were not for the Maidan Uprising in February and March of 2014, where pro-democracy demonstrators in Independence Square in the center of Kyiv were able – after weeks of violence and tragic loss of life by dozens of democratic martyrs – to face down Yanukovych’s pro-Russian storm troopers and force him to flee into exile in Russia. Notwithstanding Yanukovych’s departure, however, fights in the Rada continued up to and including December 2018, undermining the effectiveness of Ukraine’s parliamentary democracy and further polarizing an already deeply-divided country that has still not recovered from the trauma of the Russian annexation of Crimea and a continuing bloody war against Russia and pro-Russian separatists in the eastern part of the country known as Donbas.  

Although the U.S. Congress has been largely free of physical confrontations over the past several decades, the recent orchestrated and partisan disruption of the impeachment hearings are most reminiscent of the last time in American history when the  House of Representatives was disrupted on a regular basis during the late 1850s, prior to the breakout of a bloody Civil War. The most infamous fistfight there erupted on February 6, 1858, while member of the House were debating Kansas’s pro-slavery constitution. It was reported that more than fifty representatives participated in the melee. Within a few short years, America’s irreconcilable divisions boiled over into a civil war from 1861 to 1865, from which we have not yet fully recovered. 

Just to ensure that the racial and regional divisions of the Civil War will never fully be healed – at least while Trump occupies the White House – Trump went out of his way earlier this year to remind us that there were some “good people” among the tiki-torch toting neo-Nazis marching in Charlottesville, and that Confederate General Robert E. Lee was “a great general.” He then threatened another civil war if Congress follows through on its likely course of action, which is to issue Articles of Impeachment against him. He tweeted a quote from a Baptist pastor’s statement to the effect that impeachment would result in a “Civil War like fracture in this Nation from which our Country will never heal.” 

In 1858, then-Senator William Henry Seward of New York correctly predicted that the accelerating divisions and violence over the slavery and “states’ rights” issues were tearing the country apart and that an “irrepressible conflict” was inevitable. The election of Republican Abraham Lincoln as president on November 6, 1860 was the final catalyst for the 11 Southern and border states, along with most of their Congressional representatives, to refuse to accept Lincoln as the country’s chief executive and to withdraw from the Union. 

Are we now at a similar crossroads in our history? Are we on the brink of Civil War II? Trump and his most ardent allies seem to relish the idea that America needs another bloodletting. Are the upper 1% of America’s super-rich class who benefitted from Trump’s recent massive tax cuts going to stand idly by while Congressional Democrats pass articles of impeachment which may not lead to his removal, but will likely lead to a landslide election in November 2020 of an Elizabeth Warren, Bernie Sanders or other progressive-leaning and audacious Democrat who is calling for the enactment of a “wealth tax” and other “radical” measures designed to remedy the growing chasm between the super-rich and the rest of us? And what about the racists, neo-Nazis, xenophobes, nativists, gun nuts, right-wing conspiracy theorists and other who irrational devotees who make up some (but not entirely all) of Trump’s base? Are they going to stand idly by when their Great Leader is impeached and removed from office or, more likely, resoundingly beaten at the polls in November 2020? Not likely. Trump followed up his earlier “civil war” threats by tweeting: “ I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP, intended to take away the Power of the People, their VOTE, their Freedoms, their Second Amendment, Religion, Military, Border Wall, and their God-given rights as a Citizen of the United States of America!” Trump even went so far as to accuse Chairman Adam Schiff of the House Intelligence Committee of “treason,” no doubt forgetting that the Constitution’s definition of “Treason” is the giving of “aid and comfort” to America’s enemies, which is something that Trump has been doing from day one in the White House. 

In other words, now that as a result of the ham-handed, amateurish and disastrous efforts of Rudy Giuliani, Mick Mulvaney, Mike Pence, a couple of Ukrainian-American mobsters (Lev Parnas and Igor Fruman) and a few rogue State Department operatives, Trump has finally been hoisted onto the “Ukraine Affair” petard and fully exposed for the narcissistic, self-serving and treasonous lout that he always was. He has no real options other than to (number 1): come to his senses, stand down, resign while the going is still good (a la Nixon), and grab a full pardon from Pence in the process as he boards the Marine 1 helicopter on the White House lawn after delivering a dark and angry non-apology complaining to the end that he was persecuted and driven from office unfairly by a “deep state” conspiracy and coup d’etat. This would be the smart move, which means that “double down” Trump is not even remotely likely to take it.

So, then, what is the only other “door” that is open to him? He will continue to whip his “base” into a frenzy, promoting acts of violence and, if necessary, an armed revolution. As Lawfare and other commentators have already noted, the internet chatter far right-wing militias about pursuing their “second amendment” options has been on the rise and is unlikely to abate.    

On June 27, 2018, a Rasmussen Reports survey of U.S. voters found that 31% said “it’s likely that the United States will experience a second civil war sometime in the next five years.”  Given the rancor engendered by the Brett Kavanaugh Supreme Court hearings, the Mueller Report, the administration’s callous caging of refugee children at the border and the commencement of Congress’ impeachment inquiry, it is likely that the percentage of Americans psychologically (or otherwise) preparing themselves for a civil war has only increased.     

For 243 years, America has been the beacon of light and protector of freedom, democracy, inalienable human rights not only in this country, but around the world. Generations of Americans have made the ultimate sacrifice to preserve these values, but if we take democratic institutions for granted and think that Trump and what he stands for is just some aberration or bad dream that will go away once the fever breaks, we do so at our peril. Numerous once-vibrant democracies such as Hungary and Turkey have slid into “illiberal democracies” with a decidedly authoritarian edge, where the rule of law with truly independent legislative and judicial branches have buckled under the stress and wily maneuverings of strong authoritarian leaders. America could very well be next.   

In 1778, Benjamin Franklin asked by a bystander outside the Constitutional Convention in Philadelphia: “What kind of government will it be?” Without hesitation, Franklin replied: “A democracy, if you can keep it.” Also painfully aware of the fragility of liberty and any democratic form of government, Thomas Jefferson wrote from Paris in 1787: “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants.” He also fretted that “lethargy … is the forerunner of death to the public liberty.”

So when our children and grandchildren ask us years from now about this watershed moment in our nation’s history, when anti-democratic and authoritarian forces occupied the White House, much of Congress, and tried their mightiest to shred the Constitution and silent dissent: “What did you do? Which side were you on?” Each of us should have a good answer to give them, because the storm clouds are forming, and it definitely feels like rain. 

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Kenneth F. McCallion is an attorney, former federal prosecutor and author of Treason & Betrayal: The Rise and Fall of Individual 1. He is currently working on his next book: Civil War Two.  Peter Borisow is a Ukrainian-American and film maker who has been active in the pro-democracy movement in Ukraine.     

October 23 was a stab in the heart, a blow to the very soul of America and all it stands for.  We must flush this evil before it destroys us altogether. 

Trump Betrayal of the U.S. Now Extends to the Kurds

The Kurds have been America’s staunchest and most effective allies in the war against ISIS in the Middle East. They have worked closely with U.S. Special Forces to drive out, kill or imprison thousands of ISIS fighters in the northeastern area of Syria that they effectively control. This has been one of the great success stories of America’s War on Terror since September 11th, and Kurdish forces deserve the undying gratitude for taking the brunt of the combat responsibilities and the casualties required to rid this area of the ISIS scourge. 

As the proud step-father of a Marine, and I am sure on behalf of the families of active U.S. service members in the Middle East and elsewhere around the globe, there can be no doubt that the loss of life by U.S. combat units in areas where they are fighting alongside their Kurdish brothers and sisters in arms would have been much greater but for the fact that Kurdish forces had their backs and could always be counted on when the going got tough.

The shame and frustration felt by U.S. servicemen and women in having a commander-in-chief abandon and betray our most trusted Kurdish fighting allies cannot be underestimated. On the battlefield or off, America’s word has always (well, almost always) been its bond, and while it takes a long time to build a relationship of genuine trust, whether on an interpersonal or state-to-state basis,  that trust can disappear in an instant when America betrays an ally in such a callous and surprise manner as was done with the Kurds. After a phone call with President Erdogan, Trump announced that U.S. troops in Syria would be pulled back from the Turkish order so that Turkish military forces could “clear out” a buffer zone along the border. 

Even Trump’s use of language, since terms like “clear out” or “clean out” have been used all too often in the past to justify ethnic cleansing, mass murder and genocide. The chaos and carnage involving the civilian populations of the area predictably ensued, as Turkish troops and allied militia groups rapidly advanced with indiscriminate shelling of civilian centers and the reported possible use of white phosphorous chemical munitions, which is banned under international law for use against civilian populations and causes horrific burns and injuries to anyone who comes into contact with it. 

    Not only have the Kurds been our trusted allies in the Middle East in the fight against ISIS, but there are more than 40,000 loyal Kurdish-Americans in the U.S., with about 15,000 in the Nashville, Tennessee area and many Kurdish-Americans proudly serving in the U.S. armed forces. I had the honor of representing some of these U.S. citizens who were victims or families of victims of the March 16, 1988 chemical attack by Saddam Hussein’s forces in Iraq against the Kurdish village of Fallabja. I also represented the Kurdish National Congress in the U.S., one of the U.S.-based organizations that was seeking to obtain compensation for the victims of the chemical attack and their surviving families. 

Having been subjected to chemical attacks on the Kurdish civilian population in Iraq, the Kurds once again appear to be the victims of recent chemical attacks in Syria, only now the perpetrators and violators of international law seem to be one of America’s own NATO allies with U.S. nuclear weapons stored there.

There are about 25 to 35 million Kurds that inhabit the mountainous region straddling Turkey, Iraq, Syria, Iran and Armenia. They have their own language and culture, and comprise the fourth-largest ethnic group in the Middle East. Indeed, they are one of the largest ethnic groups in the world without their own nation state, having had their hopes for an independent “Kurdistan” crushed by the treaties signed by the European powers after World War I.  

A Meeting in Namibia and Botswana

I travelled from New York to Windhoek, Namibia on Wednesday, March 27th at the invitation of Paramount Chief Rukoro of the Ovaherero Traditional Authority (OTA) and Chief Isaack of the Nama Traditional Leaders Association (“NTLA”). I was accompanied by my wife, Susan, and my youngest son, Foard. We were warmly greeted at the Hosea Kutako International Airport by a large delegation of Nama leaders, and by a Herero delegation from the OTA, led by Bob Kandetu, the OTA’s Chief-of-Staff and a well-known Namibian journalist and writer.

We first travelled to Swakopmund to attend a three-day international law conference there on the 1904-1908 Genocide of the Ovaherero and Nama by German imperial forces and “The Case for Restorative Justice.” The sponsors for the conference included the European Center for Constitutional and Human Rights (ECCHR), the Ovaherero Genocide Foundation (OGF), and the Nama Genocide Technical Committee (NGTC). The Conference had an overflow crowd for most of the sessions, and was well attended by delegations of academics, experts, leaders and representatives of the Herero and Nama communities from Namibia, Botswana, South Africa, the UK, Canada, Germany and the U.S.

Among the topics discussed were the continuing impact on Namibian society caused by the German colonial past, including the fact that Herero and Nama families and communities that had their land, cattle and other properties expropriated by the Germans during the 1904 to 1908 period and thereafter continue to suffer inter- generational poverty. Since much of the Herero and Nama wealth and well-being depended on their ownership and use of their rich grazing lands for their cattle and other livestock, they continue to suffer from these losses still they have not had those lands and other property restored to them and have still not received any just compensation for these expropriations and unlawful takings. Based upon what we saw during our travels in Namibia, much of the wealth in the country still depends on land and grazing rights, such as the vast areas in eastern Namibia around Gobabis, which proudly declares itself to be “cattle country.”

It became clear during the discussions at the Swakopmund conference that without significant land reform or a settlement with Germany providing substantial funds for the Herero and Nama communities to purchase grazing lands and purchase cattle and other livestock, the cycle of poverty that has held many Herero and Nama communities in its iron grip for generations cannot be broken.

During the Swakopmund conference, Paramount Chief Rukoro and Chief Isaack addressed a packed hall on their efforts on behalf of the Herero and Nama people to seek restorative justice from Germany for the losses that their communities suffered as a result of the genocide and loss of their lands and property without compensation or restitution. They and the other Herero and Nama leaders and technical advisors at the Conference emphasized that the Herero and Nama communities of Namibia have unanimously chosen them as their lawful representatives, as well as the Herero and Nama communities in Botswana, South Africa, the U.K. Canada and the U.S., which are where all the significant communities of the Herero and Nama diaspora are located. Moreover, it was emphasized by the Herero and Nama leadership, as well as the numerous members of those communities who were attending the Conference, that the government of Namibia could not possibly represent the interests of the Herero and Nama communities in Botswana, South Africa and elsewhere since they are not Namibian citizens, and the Namibian government has not even offered them dual citizenship. Their families fled for their lives during the 1904-1908 genocide, seeking protection in Botswana, South Africa and elsewhere, and they have never been offered the return of their stolen lands, cattle or other property. Consequently, they have no incentive or reason to return to what is now Namibia, where they would be little more than poor, powerless and landless refugees. They have, therefore, unanimously decided, on an individual and family basis, and through their own community and regional chiefs, that P.C. Rukoro (in the case of the Herero) and Chief Isaack (in the case of the Nama) are their chosen and lawful representatives for, among other things, all matters relating to negotiations and settlement of their genocide claims against Germany.

At the Conference, Paramount Chief Rukoro recounted a moving personal family history regarding its losses suffered during the German colonial period, which is apparently typical of many Herero and Nama families. His family’s ancestral lands remain today under the ownership of the descendants of the Germans who originally expropriated their property without compensation. Although the current German owner of the property is kind enough to let the Rukoro family members visit their ancestors’ gravesites on the property, the harsh reality is that 115 years after the expropriation of their lands, Herero and Nama families have never received any compensation for their property or livestock losses, and there is no indication that the current “negotiations” between Germany and the Namibian government will result in any restitution or compensation to these Herero and Nama families and communities.

In fact, Germany has made it clear that it will not make any restitution as part of a “settlement” with the Namibian government. Since when, it may be asked, does a criminal have the right to dictate the terms of his or her sentence? No criminal ever wants to pay a significant price, either in jail time or in restitution to the victims of the crime. And yet the Namibian government seems to be acquiescing to Germany’s flawed “no restitution” argument, as if there can somehow be a final peace and final settlement of these issues without a true plan for restorative justice, which would require the participation of the Herero and Nama acknowledged leadership in the settlement negotiations. What is the Namibian government afraid of? Why is it of no apparent importance to them that the Herero and Nama communities in both Namibia and worldwide will view any “settlement” entered into without the participation of their chosen leaders as an illegitimate sham? Nor have the terms of the “imminent” settlement with Germany ever been publicly disclosed so that the communities that were targeted for genocide – the Herero and the Nama – can even comment on them before the government tries to sign away their rights? These were some of the significant and timely questions and considerations discussed at the Conference.

During the Swakopmund Conference, I also participated – along with my colleague Michael Lockman — in a panel discussion on the status of the U.S. federal court litigation in New York. Although the federal district court recently granted Germany’s motion to dismiss, most of the court’s written decision was a landmark victory for the Herero and Nama plaintiffs in that, for the first time, a court recognized that the mass killings, attempted extermination of the Herero and Nama and expropriation of their property by Germany during the 1904 to 1908 period was, in fact, a violation of existing international law both now and at the time, which prohibited wars of annihilation and extermination. The U.S. federal court’s written decision also contained an acknowledgment that the Herero and Nama peoples have never been justly compensated for the unlawful taking of their property. In so ruling, the court rejected Germany’s shameful argument that its horrific actions did not violate international law at the time, and its suggestion that the Herero and Nama were not “civilized” peoples, such as Europeans, who could claim the protection of international law.

The court found, in essence, that although the term “genocide” was not widely used prior to the end of World War II, the attempt to exterminate a people based upon their race, color or ethnic identity was prohibited during this 1904 to 1908 time period, and that Germany violated this established international law at the time by attempting to exterminate both the Herero and Nama peoples, and in substantially succeeding in that goal. The court decision also acknowledged that Hereroland and Namaqualand were highly developed tribal entities at the time, and that Germany accepted these sovereign states as independent political and legal entities by entering into treaties with them, and thus acknowledging their sovereign rights. Germany, of course, broke these treaties by, among other things, stealing land directly from the Namas and Hereros through deceit, fraud and trickery, and later by force, without compensation.

The U.S. federal district court also accepted plaintiffs’ argument that the monies obtained by the Germans through the confiscation and sale of the Herero and Nama expropriated properties went into the German treasury and then became part of the available funds for Germany to buy buildings and property in New York, which it still owns. In addition, the court also acknowledged plaintiffs’ evidence establishing that Germany benefitted financially from the sale of the human skulls and bones of the genocide victims, which were transported to Germany in crates and then displayed or sold to various museums. Some of these skulls were sold to the American Museum of Natural History (AMNH) in New York, where they remain today.

It was further discussed at the Swakopmund conference that, although the district court found that plaintiffs had not met the technical requirements for exceptions to the Foreign Sovereign Immunities Act (FSIA) that would give the U.S. courts jurisdiction over another sovereign state, such as Germany, the plaintiffs’ lawyers have already appealed the lower court’s decision to the Second Circuit Court of Appeals. We further explained that in this appeal to a three-judge appellate panel, we had identified 17 clear- cut errors in the court’s decision that we belief are the basis for a reversal of the lower court’s decision. This appeal has been put on an expedited schedule, in recognition of the importance of the case.

While in Swakopmund, we also participated in the annual remembrance walk there by members of the Herero and Nama communities to the burial ground for victims of the 1904-1908 Genocide. We visited the site of the Concentration Camp and Mass Grave Memorial of the Herero and Nama victims who died there. At the closing ceremonies of the Conference, Paramount Chief Rukoro honored the legal team by giving Michael Lockman and I Herero names in recognition for the legal work that we have been doing on behalf of the Herero communities. We were very moved and honored by this gesture of confidence in us by the Herero leadership and community. My Herero name is now “Nokokure.” We were also both given walking sticks inscribed with our Herero names, which was a very moving experience for me and my family, especially since we have established some close collegial bonds of friendships in Namibia and the U.S. with P.C. Rukoro, members of the OTA staff, as well as leaders of the Ovaherero community in New York and elsewhere in the U.S.

We then travelled back to Windhoek and then down to Keetmanshoop and Luderitz, where we were warmly welcomed by Nama Chief Isaack, Chief Kooper and other leaders and members of the NTLA and the Nama communities. The meeting halls we went to were packed with Nama, who welcomed the opportunity to share with us the terrible suffering that their families experienced during the genocide. They also honored my son and I with traditional colorful Nama hats, and they very generously gave my wife a traditional Nama shawl. We were all very moved by their generosity.

We visited the notorious concentration camp at Shark Island, near Luderitz, where we were surprised to see that there were no plaques or historical markers explaining that this was the concentration camp and extermination camp for Nama and Herero prisoners during the 1904 to 1908 period, and that after they died and were worked to death by the German authorities, many of their heads of the victims were severed, boiled and the Nama and Herero women were forced to cut off the remaining skin from the skulls so that they could be shipped back to Germany and sold as part of a profitable “bone trade” by the Germans. The Germans also performed pseudo-scientific experiments on the dead Herero and Nama victims in an attempt to “prove” that the white and Germanic races were superior to black Africans. The bodies of the victims were then thrown into the sea, where they were eaten by the many sharks in the area. There is a monument there to Chief Fredericks of the Nama, who was interned and died there, along with hundreds of his family members and Nama followers. However, there is no other historical plaque or other information provided at Shark Island telling the story of how it was used by the Germans as a concentration camp as part of its campaign of genocide against the Herero and Nama peoples.

We were also disturbed to see that this sacred ground was being managed by the Namibian government authorities as a campsite for tourists, and that the most prominent memorial at Shark Island is to German soldiers and to Luderitz himself, who was one of the chief architects of German colonialism in South West Africa. None of the German soldiers buried there now and who are honored with a memorial died (to the best of my knowledge) at Shark Island. Rather, they were active participants in the 1904-1908 genocide, and shared responsibility with their German government in carrying out the extermination orders clearly in violation of international law. Along with General von Trotha, who issued the extermination order, these soldiers may well have been war criminals for carrying out this extermination plan. When these soldiers died, they were buried elsewhere, not at Shark Island, and then their remains were then exhumed and re- buried at Shark Island as part of a plan to honor the reprehensible and genocidal actions of the German military during this period. This is as shameful and shocking as if monuments to the Nazi soldiers who murdered thousands and millions of Jews at the death camps such as Auschwitz were erected at those concentration camps, rather than honoring the memories of the victims of the genocide.

In our opinion, Shark Island and the locations of the other concentrations camps in Swakopmund and elsewhere where Herero and Nama were worked to death and slaughtered should be both national and world historical sites in memory of the 1904- 1908 genocide and a remembrance by all Namibians and all Africans to the courageous resistance of the Herero and Nama peoples to German colonialism and attempts to subjugate the African peoples. This anti-colonial resistance was initially successful, where Herero and Nama warriors with little more than spears and their own courage defeated a well-armed German military force. It was only when the Germans retreated to fortified position and called for help from a large German expeditionary force that was sent to support them that Germany was able to defeat the Herero and Nama forces. Germany felt humiliated by having been initially defeated by native Herero forces, and retaliated by issuing an extermination order against the Herero on October 2, 1904, and then another one in 1905 against the Nama.

We actually visited the site at Ozumbu Zovindimba (near Otjinene) where German General Lothar von Trotha issued his written extermination order against the Herero, and the “hanging tree” nearby where German troops hung captured Herero unarmed men, women and children who were trying to flee eastward into Botswana. The metal hanging nooses are still on the dying tree 115 years later, but there is no memorial plaque or other historical marker explaining the importance of what happened there. There are also burial puts there near wells and watering holes that the Germans poisoned, and where the Herero and Nama died. Their bones are still lying in these unmarked pits, unprotected from the dogs and jackals that roam the area and feed on the unprotected remains of the bones of the dead.

The historical significance of this place cannot be overestimated, since this was the first (and last time) in history that there was a written extermination order of an entire peoples. Not even the Nazis, in their zeal to exterminate the Jewish people, ever put their plans into writing. And yet there is not one government plaque at the site commemorating this terrible and historically significant event. It is also my understanding that not one Namibian government representative has ever attended one of the annual October 2nd remembrance events at this sacred site organized by the Herero and Nama leadership. I, therefore, cannot understand why the Namibian government thinks that it can speak for the Herero and Nama peoples in their negotiations with Germany, when it cannot even bring itself to send a representative to such important historical remembrance events. I also have come to understand why the Herero and Nama peoples are skeptical of the Namibian government’s promises to protect their interests in any settlement, when they have seen very little if any of the German foreign aid money trickle down to their communities over these many years. Many – if not most – of the Herero and Nama communities we visited consist primarily of shacks with no water, sewer or electricity, as far as I can tell. There are no power lines to these communities, and their main roads are mostly dirt roads riddled with potholes. It seemed to me as if these communities had been lost in time, forgotten by their own government.

We also visited Okahandja, which is a sacred place to the Ovaherero, and we visited and prayed with a large group of Herero and Nama at the grave sites of the fallen Paramount Chiefs of the Herero who are buried there, and who had chosen to be buried next to Nama Chief Afrikaner, as a demonstration of the solidarity and friendship between the Herero and Nama peoples as joint victims of the genocide. During a ceremony there, my family and I received a lovely gift of traditional Herero pottery, which is used for storing milk and churning it into buttermilk. I am not sure we will actually use it for its originally intended purpose, but the pottery items are clearly works of arts that we will proudly display in our home upon our return to New York.

While entering Botswana, we had a bit of a scare when the Botswana immigration officer told us that we needed our son’s birth certificate, since he is under 16. We had not been previously told about this when we had checked the U.S. State Dept. on what papers we needed to travel to Botswana. However, when they saw that my son is a virtual xerox copy or duplicate of me (only much younger) and that he bears the same name as me (I am “Sr.” and he is “Jr.”) we were permitted to enter Botswana without further problem. Just across the border, at Charles Hill, we were greeted by a huge crowd of both Herero and Nama residents of Botswana, with the women attired in their colorful red dresses and distinctive hat, and many of the men wearing traditional Herero military-style uniforms. Young members of the local Herero “commando” unit marched for us and gave us a sample of their traditional Herero war cries, which sent an involuntary shiver down my spine even though we were clearly on the same side and they were honoring our visit. I imagined how the German soldiers must have felt when they heard the same war cries in the initial battles where the Herero warriors prevailed, despite the overwhelming German superiority in equipment and firepower.

When the festivities at Charles Hill in Botswana moved indoors into a packed hall, some of the colorfully-dressed Herero women took my wife aside, and shortly thereafter, she re-appeared wearing a yellow Herero gown and hat, which she greatly appreciated and made her look even more lovely than usual. She looked like a true Herero woman, only with blond hair. After the speeches in the hall by the assembled Herero chiefs of Botswana, and by myself, the entire crowd was invited to a traditional outdoor after-dark gathering around a huge bonfire. A huge dinner was served, with ample portions of beef and lamb, which is a staple of all Herero meals at special occasions. Songs were sung and stories were told around the “circle of fire,” and after several hours, when the embers of the fire began to die out, we reluctantly left for a good sleep in a room provided by the local Herero chief.

On Friday, April 5th, our final full-day in Namibia, we attended a large and enthusiastic gathering of Herero at Katutura Township, near Windhoek. A local Herero commando group gave an enthusiastic display of their skills, and both I and Paramount Chief Rukoro addressed the gathering, telling them about the Conference, the New York case and our travelling experiences over the past two weeks in both Namibia and Botswana. My son received a colorful red Herero hat and shirt, and I received a statute of a horse, which is a traditional Herero symbol of their attachment to the land. Members of the Herero delegation that accompanied us from the U.S. to Namibia — Dr. Ngondi A. Kamatuka of Kansas University, Barnabas Veraa Katuua, a noted architect from New York, and Vepuka Kauari, Director of Nursing at New York Presbyterian Hospital — were also honored with very special Herero lapel pins. The Namibian Broadcasting Corp. (NBC) covered the event, and earlier in the day I had a taped interview at the NBC studio in Windhoek.

All in all, our entire trip to Namibia was breathtaking, exciting and memorable, which my family and I will always cherish.

MANAFORT AND COHEN: THE BEGINNING OF THE END FOR TRUMP

The Paul Manafort jury conviction and the guilty plea by Trump attorney Michael D. Cohen – all in one day – are clearly a one-two combination that has staggered Trump and may well mark the beginning of the end for his presidency.

With the Michael Cohen guilty plea, we now know what most of us have assumed since first learning of the “hush money” payoffs to Stormy Daniels and the Playboy model McDougal, which is that Cohen made these payments at the specific direction of his boss (D.J.T.), and that the payments were made for the specific purpose of preventing the adverse publicity regarding these affairs from surfacing close to the 2016 election and adversely influencing its outcome. In other words, Special Prosecutor Mueller now has reliable and overwhelming evidence that directly implicates Trump in a conspiracy to violate the federal campaign finance laws, among other offenses.

Although not disclosed yesterday, it is likely that Cohen also has a sealed cooperation agreement already in place with the federal prosecutors from the U.S. Attorney’s Office in the Southern District of New York, or that he will have one finalized soon, and it is likely that Cohen can fill in at least some of the missing dots between Russia’s interference in the 2016 election and Trump’s personal knowledge of and active participation in his Campaign’s efforts to “collude with” or at least benefit from such interference.  If, for example, Cohen can confirm that Trump had prior knowledge of (and consent to) the fateful June 9, 2016 Trump Tower meeting between Don (“I love it”) Jr., Manafort and other key Trump Campaign officials with high-level Russian operatives, then even Trump will be forced to eliminate (or at least substantially tone down) his “No Collusion” rhetoric.

With the mounting evidence against both Don Jr. and Don Sr. for both Conspiracy against the United States (Title 18, Section 371) and campaign finance law violations (for solicitation and agreement to accept a thing of benefit – opposition research, etc. — from a foreign source (and a hostile one at that) – Mueller will have sufficient evidence to either return a grand jury indictment against both of them or, return an indictment against only Don Jr. and issue a report to Congress and the American people as to President Trump. While there is nothing in the US Constitution that prohibits an indictment against a sitting President, all reports seem to indicate that Mueller will follow US. Dept. of Justice Guidelines, which presently prohibit the indictment of a sitting president.

The conviction of Manafort on eight felony counts is equally bad news for the President. While the specific charges on which Manafort was found guilty do not directly implicate Trump, the Manafort conviction underscores the growing public recognition that Trump actually went out of his way to surround himself with people who were well-known as having close connections with the Russians and who could further Trump’s pro-Russian agenda. For example, Manafort made millions of dollars as the chief advisor to pro-Russian former Ukraine President Viktor Yanakovich, and Manafort also represented Oleg Deripaska, the Russian oligarch who was part of Putin’s inner circle.

Since Manafort is already facing the prospect of spending the rest of his natural life in federal prison based on the charges for which he has already been convicted – without even factoring the additional charges he is facing in federal court in the District of Columbia or the remaining 10 charges that the Virginia federal jurors could not agree on – it is likely that his lawyer’s public announcement that “he is considering all of his options” means that he is finally coming to terms with the fact that he must start cooperating with the Mueller probe if he ever wants to walk freely upon this earth ever again. This means that the Mueller team will very shortly be signing up Manafort as yet another witness confirming that the June 9, 2016 Trump Tower meeting was blessed by President Trump, and was part of an ongoing effort by Trump Campaign operatives to get help from any and all available sources, including the Russians, and no matter how illegal were the methods used to obtain Hillary Clinton’s stolen emails.  After all, Trump publicly invited Wikileaks to do whatever was necessary to obtain Hillary Clinton’s “missing” emails, and since he must have known that Wikileaks was nothing more than a Russian front organization by 2016, the conclusion that what Trump was really doing was to invite Russian meddling with the 2016 presidential election barely requires much of a stretch.

In short, the Manafort conviction and the Cohen plea agreement dramatically signal that the Mueller investigation is close to assembling a critical mass of evidence that Trump has engaged in “high crimes and misdemeanors” that, at the very least, constitute impeachable – if not indictable – offenses. The smell of Treason is truly in the air.

The Mueller Team’s Latest Charges In the Russia Investigation Follows the Money Trail to One of America’s Largest Law Firms

Special Counsel Robert Mueller’s Office filed another important criminal charge yesterday (February 20, 2018) as part of its investigation of Russian interference in the 2016 election. These charges are being brought against attorney Alex Van Der Zwaan, who is scheduled to plead guilty later today for lying to the FBI about a conversation he had with Rick Gates, Trump’s Deputy Campaign Chairman. The conversation with Gates was about the work that Van Der Zwaan and his law firm, Skadden Arps, Slate, Meager and Flom, were doing in Ukraine for the pro-Russian regime of then-President Viktor Yanukovich.

Van Der Zwaan, who worked out of the Skadden Arps London office until he was fired last year, was part of that law firm’s legal team that was hired at the behest of Paul Manafort, a senior advisor to the Yanukovich regime and his pro-Russian party during 2011 and 2012, who then went on to become Trump’s Campaign Chairman in 2016.  Skadden Arps was hired by the Ukraine government to counter the adverse publicity that the Ukraine government was receiving over its arrest and prosecution of Yulia Tymoshenko, the former Prime Minister of Ukraine who lost the presidential election to Yanukovich in 2010.

Immediately after taking office, Yanukovich directed that a politically-motivated investigation be conducted into Tymoshenko’s handling of a natural gas deal between Russia and Ukraine, leading to her arrest, incarceration and prosecution on baseless trumped-up political charges in 2011.

When an international storm of protest erupted, and with the U.S. government, the European Union and human rights groups calling for Tymoshenko’s immediate release, Manafort and Gates convinced the Ukraine government to hire the Skadden Arps firm to counter this adverse publicity and to lend an air of respectability to the government’s relentless and unfounded prosecution of Tymoshenko, who by this time was in urgent need of specialized surgery in Germany to relieve a painful back condition. However, the Yanukovich regime steadfastly refused to permit her to travel to Germany for the operation.

Manafort and Gates orchestrated the retention of the Skadden Arps team for the ridiculously low contract amount of $12,000 in order to keep the contract just below the threshold requirement under Ukraine law for the public bidding of all government contracts.

Since I was Ms. Tymoshenko’s U.S.-based attorney at the time, I helped her Ukraine-based legal team to calculate the actual legal fees and expenses that Alex Van Der Zwaan and the other members of the Skadden Arps team were incurring for their frequent trips to Kiev, where they stayed at expensive hotels and dined at expensive restaurants while they were being led around Ukraine by Manafort, Gates and their pro-Russian cronies as part of their so-called investigation. We estimated that the law firm must have been paid at least $1-2 million for its legal services in preparing their “whitewash” report, which unsurprisingly concluded that there was some legitimate basis for the Tymoshenko prosecution and that it was not (at least not completely) a political hit-job by Manafort, Gates and the Yanukovich Regime they were working for.

When we turned the results of our investigation into the missing $1-2 million in payments over to the FBI and Department of Justice prosecutors, they apparently incorporated this  information into their larger money laundering and influence-peddling investigation of Manafort and Gates, which led to the recent charges that Manafort and Gates used an offshore account to  “funnel $4 million to pay secretly for the report” supporting Tymoshenko’s conviction. The work was revealed in last year’s indictment of Manafort and Gates, in which prosecutors asserted that the two men lobbied members of Congress and their staffs about Ukraine, including the issue of whether Yanukovych had a legitimate basis for imprisoning and prosecuting his political rival, Yulia Tymoshenko.

The pubic release of the charges against Van der Zwaan signals that the Special Counsel’s office has reached  plea agreements with both Van der Zwaan and Rick Gates, and that both of them are cooperating with the continuing investigation into the both Manafort and Gates’ work for the pro-Russian Ukrainian President, as well as their continuing work for the pro-Russian Ukrainian political party even after Yanukovich was forced to flee Kiev for the safety of Moscow in March of 2014 during the Maidan Revolution in Ukraine.

The results of this investigation should answer the longstanding question as to why then-Candidate Trump hired Manafort and Gates to head up his Presidential Campaign in the summer of  2016, knowing how closely affiliated they were with pro-Russian interests in Ukraine. The recent charges and plea agreements should also substantially advance the ongoing Mueller investigation on many fronts, including the question of whether it was Trump himself who directed Manafort and Gates to water down the Ukrainian plank in the party platform at the Republican National Convention. This revision of the Republican platform eliminated the call for the U.S. to send defensive military equipment to the beleaguered Ukraine government, which was facing the annexation of Crimea and a Russian-incited rebellion in eastern Ukraine.

One thing is clear: there is much, much more to come from the Special Counsel’s office.

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

As the Special Counsel’s investigation picks up steam, with the indictments of Paul Manafort and Rick Gates already filed and the guilty pleas with now cooperating witnesses Michael Flynn and George Papadopoulis publicly disclosed, Mueller’s team has amassed a wealth of information regarding President’s heavy-handed attempts to obstruct justice.

The avalanche of damning evidence of Trump’s obstruction of justice started with the firing of FBI Director James Comey on May 9, 2017 after direct attempts by Trump failed to extract from Comey a pledge of loyalty and a commitment to drop the FBI’s investigation of his former National Security Advisor Michael Flynn. There is also evidence that Trump pressured Director of National Intelligence Dan Coats to urge Comey to end his investigation into Flynn and his Russian connections, which was eerily reminiscent of former President Nixon’s attempt to use the CIA to derail the FBI investigation into Watergate and which ended up being included as part of the Articles of Impeachment against Nixon.

Despite the White House’s initial disinformation campaign to persuade the public that Comey was fired for other legitimate concerns, Trump could not resist telling NBC’s Lester Holt during a live interview on May 11, 2017 — two days after the firing — that Comey’s firing was due to “the Russia thing.”

If there was any doubt whatsoever that Trump fired Comey in order to try to quash the FBI’s and the Justice Department’s investigation of possible collusion between the Trump Campaign and Russian intelligence operatives to interfere with the 2016 election and to swing it in Trump’s direction, those doubts were dispelled when Trump told Russian Ambassador Sergey Kislyak and Sergey Lavrov, the Russian Foreign Minister, in the Oval Office on May 10, 2017,  the day after the firing of the FBI Director, that he had discharged “Nut Job” Comey in order to take “pressure” off the Russian investigation. Only Trump, the two Russian officials, and a Russian news representative were permitted to be in the Oval Office during this critical discussion, which also involved the disclosure of highly sensitive and classified information that the U.S. had obtained from Israeli intelligence about the Islamic State.

Two months before he fired Comey, Trump ordered White House Counsel Don McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation, saying that he needed Sessions to provide active oversight over the Russia investigation in order to “protect him” and “safeguard” him. Mueller can persuasively argue that the only possible reason why Trump would be so desperate for Sessions to “protect” him was that Trump had something to hide from the federal prosecutors, and that he was desperately afraid that the investigation would lead into troubling areas regarding the underlying “collusion” investigation, or into collateral areas such as the Trump Organization’s heavy reliance on Russian money of suspicious origin in possible violation of U.S. money laundering laws.

After Comey was fired and replaced by Deputy FBI Director Andrew McCabe, who corroborated Comey’s testimony regarding Trump’s repeated requests for a “loyalty oath” from Comey, Trump pressured FBI Director Christopher Wray to fire McCabe, causing Wray to threaten to resign, according to news reports. Trump continued to berate McCabe in a barrage of twitter rants, until McCabe finally capitulated and announced his abrupt and early retirement from the FBI.

Trump is also reported to have ordered White House Counsel McGahn to fire Special Counsel Mueller, only to back down – at least for the time being- when McGahn threatened to resign.

The question being pondered by the Special Counsel’s office is what to do with all of this evidence of criminal obstruction of justice by Trump himself. Although the Justice Department issued two legal opinions in 1973 and 2000 during the investigations of Presidents Nixon and Clinton, concluding that a sitting President could not be indicted, there is nothing in the U.S. Constitution itself that explicitly says that. All that the Constitution says about the prosecution of the President is that, in Article I, Section 3, he (or she) is subject to prosecution after being impeached by the House of Representatives, and then convicted and removed from office by a two-thirds vote of the Senate.[1] It is silent on the issue of whether a President can be indicted before being impeached, or whether the two proceedings can take place simultaneously.

Legal memos prepared in 1973 for the Watergate Special Prosecutor and for Kenneth W. Starr, the Independent Counsel investigating allegations against President Clinton, reached the conclusion that a sitting President could be indicted if the evidence warranted it, which put both of these special federal prosecutors at odds with official Department of Justice policy.

Special Counsel Mueller, in consultation with Deputy Attorney Rosenstein, may well decide that the evidence of President Trump’s violations of the criminal obstruction of justice statutes is so compelling that the Grand Jury should be asked to return an indictment against him. President Trump’s lawyers will make an inevitable motion to dismiss the indictment on constitutional grounds, and that question will then finally have to be decided by the U.S. Supreme Court.

In the alternative, if the Special Counsel merely ask the Grand Jury to issue a Report laying out the evidence against President Trump, or name President Trump as an unindicted co-conspirator in an Obstruction of Justice indictment, then they will be violating the sacred principle that “No man is above the law,” even a sitting President. Passing the buck to Congress to consider impeachment of the president is not a good option, since impeachment is, at its core, a political decision as to whether a sitting president who has demonstrated that he is unfit to fulfill the duties of the office should be allowed to complete his term or not. That decision (whether to impeach or not) may have little or nothing to do with the issue of whether a president has violated the criminal laws, and whether he should be prosecuted for violations of those laws “without fear or favor,” just like every other citizen.

[1] Article 1, Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

IN PRAISE OF THE 70s CROWD

hey used to refer to us behind our backs as “the over-the-hill” crowd. Adults in their 70s started “forgetting” their birthdays, and even fudging their ages on resumes for fear that they would be passed over for jobs due to “ageism,” the implicit bias against old people.

Not so much anymore. People in their 70s seem to be ruling the world, or at least much of it. Special Counsel Robert Mueller was appointed to perhaps the most important job of his life after he hit the age of 70, and his senior, Bernie Sanders, seemed driven through the Presidential primary campaign by a near-boundless source of energy at the ripe young age of 73. If only the DNC had not wanted to play it so safe, deciding to go with Hillary (no spring chicken herself). Who decided that a 73-year old unabashed Socialist couldn’t get elected as President? If a reality show star who apparently (according to Michael Wolff) can’t read and has the attention-span of a 6-year old with ADD on Ritalin can make it to the White House, then anyone can!

  1. To be sure, we are on the “back nine,” but that does not mean that we should be sidelined or counted out of the game. I recently went to see my orthopedic surgeon for a hip X-ray. I had been avoiding making an appointment for months – perhaps years – since I was in deep denial of the increasingly obvious reality that I needed a hip replacement. After all, I had run over 24 New York Marathons and completed some of them under 3 hours, which is fairly respectable for an aging amateur. But in recent years, I had joined the Achilles Team of disabled runners, where I would act as an informal “guide” to one or more of my permanently disabled running colleagues, who did not have the same surgical options as I did to “cure” my growing disability.

My orthopedic surgeon specialized in sports medicine. A large poster in his waiting room urged his patients to “Get Back In the Game.” When he informed me of the obvious, that I had been running with “bone on bone” for years, I asked him if a could still run marathons with the new hip. He just looked at me and slowly nodded. Not in a good way. But who knows. I may surprise him yet. You can no longer count us “old codgers” out!

No one reacts much anymore when they learn that I have a 10-year old son. A generation ago, I would have been shunned or whispered about as a “dirty old man.” But not anymore. One of my closest colleagues and contemporary has an 11-year old son. No big deal. In fact, did you know that Medicare will pay us, seniors, a bonus for raising a minor child? I didn’t know it at the time, and it wasn’t part of my financial planning for my “golden years,” but it certainly came as a pleasant surprise.

I also have several other children running up to the age of 38, which also is not that unusual these days. Of course, it usually takes two plus marriages, which is what happened in my case. My wife is somewhat younger, which you may have already surmised, but she got her hip replaced before me. Nothing to do with age, though. She had always been an avid skier and competitive tennis player. “Better to wear it out than rust it out,” she is fond of saying. Now we will have something else to share; yet another bond between us (new hips). In fact, with a new hip, doesn’t the average age of your body parts go down?

Our next youngest is 23, and he just completed his Marine basic training at Parris Island, South Carolina. These days, it is not unreasonable for me to expect actually to be around and functioning reasonably well (albeit in my 90s) if he spends his full career as a Marine and retires in 20 years.

And that brings us to Donald J. Trump, who seems to be giving all of us 70-somethings a bad name. Steve Bannon apparently told the author Michael Wolff that Trump “had lost it,” or words to that effect. The rest of the White House staff and close family members seem to concur. Sad as he often tweets, since he has never learned the fine art of emailing. There is an exception to every rule. Maybe someone should take that “big nuclear button” away from him before he hurts himself, and blows up the world in the process. If he were in a senior living facility, they would probably have already taken any real silverware away from him and issued him a spork. How could the American people have been so thoughtless as to have given an increasingly deranged man the nuclear codes?

Won’t somebody do something? After all, I wrote up a 20-year plan for myself on New Year’s Day, and I would like to be permitted the opportunity to execute that plan. Thank you very much.

TRUMP’S LAST-DITCH TO OBSTRUCT JUSTICE IS ALREADY IN MOTION: THE FIRING OF JEFF SESSIONS AND ROBERT MUELLER

The nation seems transfixed by the recent revelations in the book Fire and Fury about President Trump’s lack of mental competence and fitness to serve as President, but other than a few juicy tidbits – such as the fact that Trump likes to dine at MacDonalds because the food is pre-prepared and therefore less likely to be poisoned – there is really nothing new here. The fact that Trump is monumentally unfit and unprepared to carry out the duties of the Presidency has been plainly apparent to even the most casual of observers since Inauguration Day, when he gave his bizarre “American Carnage” speech and declared that the crowd size was “the largest ever.”

This is all very entertaining, but not terribly newsworthy. What does qualify as news, however, is the fact that amid this “witches brew” of chaos and controversy, the embattled White House appears to be starting a roll-out of its “nuclear option,” which is to try to stop the Special Counsel’s Russia investigation in its tracks by firing Attorney General Jeff Sessions, Deputy Attorney General Rob Rosenstein, and then Special Counsel Robert Mueller himself.

Trump may be crazy like a fox. Realizing that Muller has him in his cross-hairs, with Flynn and Papadopoulos cooperating with him, and Muller now having conclusive evidence that Trump himself drafted the fake story while returning from Europe on Air Force 1 about Don Jr.’s meeting with the Russians in Trump Tower on June 9, 2016, The Trump Team must be now painfully aware that the jig is up. Mueller now has enough evidence to make an Obstruction of Justice case against Trump, and probably also has enough to establish that senior members of the Trump team –if not Trump himself – colluded with the Russians to successfully interfere with the 2016 presidential election. We know this because there is now sufficient public evidence of this in press reports, and it can be safely assumed that about 70% of what Mueller knows about Trump’s collusion and obstruction efforts has not yet been made public.

The only way to stop the Mueller investigation and the additional indictments and plea agreements that are expected to be rolled out over the next couple of months is for Trump to try to blow up the entire process, just as embattled President Nixon tried to do with the October 1973 “Saturday Night Massacre” firing of Special Prosecutor Archibald Cox and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus.

To be sure, Trump and his remaining close advisors must realize that this is a longshot “Hail Mary” pass, which marked the beginning of the end for the Nixon Presidency, but he is rapidly running out of options. We know by now that he is temperamentally and emotionally incapable of just patiently waiting for the next shoe to drop from Mueller’s office, which could be an indictment of Jared Kushner, Don Jr. or other senior staff members or close family members, or he could just decide to roll the dice and either stop the Russia investigation in its tracks or go up in flames trying.

The expression “going nuclear” may not be a euphemism, now that Trump is in a name-calling contest with the equally unstable leader of North Korea over who has the biggest nuclear button. There has always been a persistent “Wag the Dog” theory that when the going gets tough for a President, then the best option is to start a war to distract the public’s attention from other issues, such as scandal at the White House. However, never before has anyone hinted or even considered that a President would literally use the nuclear option to get himself out of a jam. With Trump, however, everything has changed. Who can say with confidence that Trump will never push the “nuclear button” just to create a distraction from the Mueller investigation? No one, you say? I thought so.

 

But first the “political nuclear option.” On Thursday, two top House conservatives —  Rep. Mark Meadows of North Carolina, the chairman of the conservative House Freedom Caucus, and Rep. Jim Jordan of Ohio, who sits on the House Judiciary Committee – called for Attorney General Jeff Sessions to resign. The Republican drumbeat for Sessions to step aside will undoubtedly intensify over the next several days, with the White House no doubt issuing statements to the effect that Sessions should never have accepted the job in the first place if he knew that he would have to recuse himself from supervision over the Russia investigation. Fox News and Devin Nunes, or some other White House loyalist, can also be counted on to make seemingly high-minded statements about the Justice Department being in “chaos” and that there is an urgent need for change in leadership so that an new Attorney General can “take back control” of the Department and make sure that the Special Counsel’s investigation does not “go off the rails” by investigating matters that were never intended to be investigated (such as the Trump Organization’s finances and massive Russian funding).

Even though watching the Trump White House’s attempt to undermine and then terminate Mueller’s Russia investigation will be much like watching a massive car wreck unfold in slow motion, the country must prepare itself as best as possible, just as we would if a huge tsunami were approaching. To paraphrase a recent statement by Rep. Elijah Cummings, this is truly a battle for the soul of our democracy. When the dust settles, there will be no innocent bystanders. Every citizen must now choose a side, and your children and grandchildren will be asking: “Which side were you on?”

IN PRAISE OF THE “DEEP STATE” JUSTICE DEPARTMENT

On Tuesday, President Trump started the new year off with a bang with a Twitter attack against the “Deep State” Justice Department. In attacking his own Justice Department, Trump was using code words (“deep state”) often used by right-wing conspiracy theorists to describe the permanent liberal cabal of government employees that is entrenched deep within the federal bureaucracy, which they believe are resisting Trump’s efforts to root them out and bend all of the federal agencies to his will.

Last week, Trump went so far as to assert during a New York Times interview that he had the “absolute right to do what I want to do with the Justice Department.” Sorry, Mr. Trump, you do not. That is not how the federal system works – at least not for the past 135 years.

The vast majority of FBI and other Justice Department employees are career law enforcement agents and attorneys who have been selected for their posts based upon merit, not on their party affiliation, connections or political ideology. Indeed, the U.S. Civil Service System dates back to 1883 and is designed to eliminate the ability of elected officials and political party operatives to decide who works for the federal government.

To be sure, the upper echelons of both the Justice Department and the FBI are White House political appointees, including FBI Director Christopher Wray, Attorney General Jeff Sessions, and Deputy Attorney General Rob Rosenstein. However, beneath this upper crust, all Justice Department employees are hired based solely on their abilities and their merit, working diligently at their jobs without political interference or fear of retribution.

However, this does not mean that Justice Department employees cannot hold political opinions, vote, or make contributions to political candidates. Indeed, as Deputy AG Rosenstein recently explained to a Congressional committee, the political opinions and party affiliation of candidates for Justice Department positions are not taken into account in the hiring process. To do so would be a violation of the law. Under the 1978 Civil Service Reform Act, the “selection and advancement” for federal positions is “determined solely on the basis of relative ability, knowledge, and skills.” Nor, as Rosenstein has pointed out, can the Justice Department fire an employee for expressing personal political views, which is protected by the First Amendment, although the FBI did recently reassign FBI agent Peter Strzok from the Special Counsel’s Trump/Russia investigation to other duties when text messages by him that were disparaging of Trump were made public. Even though there is no evidence that such personal views by Agent Strzok influenced his professional work, his reassignment was entirely proper in order to avoid the appearance of impropriety or bias.

Trump appears to be persisting in his efforts to quash the Justice Department’s investigation of his team’s dealings with the Russians, even though those efforts have backfired to date. First, he tried to cajole then-FBI Director Comey into dropping the investigation of former NSA Michael Flynn’s Russia contacts during the campaign and the transition period. When Comey balked, Trump simply fired him. This strategy, however, had the unintended consequence of triggering the appointment of Robert Mueller as Special Counsel and an intensification of the investigation.

Trump has also bitterly criticized Attorney General Jeff Sessions for having recused himself on the Russia investigation, but Sessions, to his credit, has more or less stuck by his guns and refused to be pressured into resigning.

Now Trump’s allies in the press and in Congress have intensified their efforts to discredit and undermine the FBI and the Special Counsel’s office in the eyes of the public.  One of Trump’s opening salvos attacked the FBI as supposedly being in “tatters” and therefore not worthy of public respect.  By vowing to restore the FBI to its former glory, or making it “greater than ever,” it seems likely that Trump is laying the groundwork for a possible firing of Mueller or, at the very least, indelibly tainting the Russia investigation as a partisan “witch hunt.” If he succeeds in this effort, then he will be inoculated, he hopes, from the fallout of any additional indictments or plea agreements with present and former members of the Trump team, which could then be dismissed as further evidence that the “deep state” is engaged in a slow-rolling “coup ” to oust Trump from the White House.

Trump’s campaign to undermine and dishearten the FBI appears to have been at least partially successful, since FBI Deputy Director Andrew McCabe, who has been one of the specific targets of the well-orchestrated assault on the FBI’s credibility, has announced that he will be retiring soon, even though he is only 49 years old. The FBI’s top lawyer, James Baker, was also abruptly reassigned last week.

If the Trump Administration and its allies continue on this course unopposed, they will have carried out their own “coup,” which will involve the politicization of the Justice Department for the first time in modern history, and the end of the Justice Department’s proud history of professionalism and political independence. The stakes could not be any higher.

THE DOSSIER: ROADMAP FOR THE MUELLER INVESTIGATION

Recent reporting has disclosed that Christopher Steele, the former British MI-6 agent and author of the infamous 35-page Dossier on alleged Trump/Russian collusion, has been meeting with members of Mueller’s Special Counsel’s Office. While this is indeed newsworthy, the reliance by federal law enforcement on portions of the Dossier as a virtual roadmap of Russian interference in the 2016 Presidential election campaign has been ongoing for many months now, as first reported by Business Insider in March 2017.

In fact, long before BuzzFeed published the entire Dossier in January 2017, Steele was already cooperating with the FBI investigation, and the FBI even considered putting Steele on the federal payroll to ensure his continued assistance. No compensation was given him, but the mere fact that it was seriously considered highlights the value that federal law enforcement placed on the material he had already gathered.

Publicly, the Dossier has become a lightning rod for criticism. Both Donald Trump and Vladimir Putin immediately denounced the Dossier’s contents as “fake news,” and Trump refused to take questions from Jim Acosta of CNN, which had published a report about the Dossier, but not its entire contents. Putin echoed Trump’s denunciations in even more colorful terms, calling the Dossier “rubbish” and referring to those who leaked the document as being “worse than prostitutes.” He quickly added, however, that Moscow prostitutes “were the best in the world,” which seemed rather odd since the more salacious allegations in the Dossier referenced Mr. Trump’s supposed liaisons with prostitutes while visiting Moscow.

The reaction from the mainstream press ranged from extreme skepticism to outright dismissal, with virtually every news outlet referring to the Dossier’s allegations as “unverified.”  Few commentators at the time noted the irony that the identical language used by both the White House and the Kremlin to denounce the Dossier itself tended to corroborate the allegations of collusion.

Many of those who sought to discredit the Dossier dissected it with the working assumption that if some of the Dossier’s contents could be shown to be inaccurate, then all of it could be rejected. It was repeatedly pointed out, for example, that Alfa Bank, one of the Russian banks regularly used by Russian intelligence to move money around the globe, was mistakenly referenced in the Dossier as “Alpha Bank.” Commentators questioned how, if Steele misspelled the names of key players, he could be relied upon to have gotten anything right.

This criticism based upon relatively minor mistakes in the Dossier struck me as fundamentally unfair. As a former federal prosecutor who had reviewed literally thousands of FBI reports (known as “302s”) I knew that if I disregarded the entirety of every document that contained spelling errors, there would be few reports left to rely on. Law enforcement agents and intelligence officers are trained to get their investigative results and interview notes into written reports as quickly as possible, so Steele well knew the importance of getting his intelligence information down on paper as quickly as possible. As a result, the Dossier was not – as some erroneously think – a highly polished final report; instead, it was a series of a dozen or more separate memos strung together in sequential order as new information became available to him. Small wonder, then, that much of it reads like a first draft.   

The Dossier has also withstood scrutiny by U.S. law enforcement and intelligence community because at least several of its allegations have already been verified, while few (if any) have been found to be unfounded. In particular, the Dossier’s claim that the Trump campaign had agreed to minimize U.S. opposition to Russia’s incursions into Ukraine has been circumstantially confirmed by U.S. law enforcement and intelligence agencies, and even by the press.

During the 2016 Republican convention, Trump campaign operatives under the direction of Paul Manafort, Trump’s campaign manager, and J.D. Gordon, a senior Trump national security expert, succeeded in watering down the Party’s platform eliminating a proposal that the beleaguered Ukraine government be provided with “lethal weapons” by the U.S. Throughout the campaign, Trump had been saying nice things about Russia in general, and Vladimir Putin in particular, but the change in the Republican Party platform was something tangible on which  Trump could deliver as a tangible gesture of goodwill. Since party platforms are largely ignored, it may have represented only a small token, but it was an indication of what Trump could do for those who helped him in the unlikely event that he won the election.

Further evidence supporting the Dossier’s validity surfaced on February 10, 2017, when CNN reported that multiple U.S. officials had corroborated some communications between “senior Russian officials and other Russian individuals” described in the Dossier. Sources told CNN that these conversations had been “intercepted during routine intelligence gathering.” CNN further reported that such corroboration gave “US intelligence and law enforcement ‘greater confidence’ in the credibility of aspects of the dossier.”

  Last week, even some of the Republican leadership in Congress, including Senator Richard Burr, Chairman of the Senate Intelligence Committee, begrudgingly conceded that at least some of the “timeline” in the Dossier had been corroborated. Nevertheless, Burr personally criticized Steele for supposedly refusing to meet with the Committee, an allegation that the Steele camp roundly denied.

Thus, although the full extent to which the Dossier’s allegations hold up is not yet known, it has unquestionably been a major source of information and leads for U.S. investigators. Anyone who says differently is just spreading “fake news.”