TRUMP AND HIS INVISIBLE SUPPORTERS

Most of the mainstream media put the attendance at Trump’s Inauguration at about 198,000, with the most generous estimates below 250,000. These included about 50,000 protesters (including three of my family members). Compared with the 1.8 million joyous Americans who turned out for the Inauguration of Barrack Obama on January 20, 2009, the turnout for Trump was decidedly subdued, but since we live in the age of electronic media, perhaps the Trump troops can be cut a little slack for not having many “boots on the ground” around the Capitol.
But Donald Trump is predictable, if nothing else. All you have to do is push his button, and he reacts. Not such a good trait to have in a poker player or a President, but there you have it. He is what he is, as the saying goes.
Several commentators (including Rachel Maddow of MSNBC) predicted (and took side bets) that Trump the Insecure would say that the size of the crowd was at least three times its actual size. They were not disappointed. On Saturday, when Trump went to the CIA headquarters in a “despicable display of self-aggrandizement” before the Wall of Honor (former CIA Director Brennan’s observation), he blasted the media for “lying” about the size of the crowd the day before. He said that it looked like a million people.
Given the extent of the lack of preparation by Trump and his transition team for actually taking over the executive administration of the country, you would think that the number of attendees at the inauguration ceremony would be the last of their concerns. There are literally thousands of senior level executive branch positions yet to be filled, and yet the Trump Team has not even named people to fill those positions, let alone actually filled them. The Trump team, in a panic last Thursday – the day before the inauguration – made a few desperate calls to senior Obama Administration officials, begging them to stay on for a while until Trump could get his act together and find a replacement for them. Some agreed, but others exercised their right to “Just say no.” Either they did not want to be associated in any way with the Trump Administration, or they had made other plans.
Trump’s insecurity and “thin skin” is legendary. However, what is becoming painfully apparent is that Trump suffers from a mental disease, known as Narcissistic Personality Disorder (NPD), which raises serious questions as to whether he can actually fulfill the responsibilities of his office.
The Mayo Clinic’s definition of NPD is as follows:
A mental disorder in which people have an inflated sense of their own importance, a deep need for admiration, and a lack of empathy for others. Behind this mask of ultra-confidence lies a fragile self-esteem that is vulnerable to the slightest criticism. If you have NPD, you may come across as conceited, boastful or pretentious, you often monopolize conversations, you may belittle or look down on people you perceive as inferior, and you may feel a sense of entitlement (when you don’t receive special treatment, you may become impatient or angry). At the same time, you have trouble handling anything that may be perceived as criticism. You may have secret feelings of insecurity, shame, vulnerability and humiliation. To feel better, you may react with rage or contempt and try to belittle the other person to make yourself appear superior.

Psychologists and psychiatrists generally use the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association, to give patients a diagnosis of NPD. These criteria include:
• Having an exaggerated sense of self-importance.

• Expecting to be recognized as superior.

• Exaggerating your achievements and talents.

• Being preoccupied with fantasies about success, power, brilliance, beauty or the perfect mate.

• Believing that you are superior and can only be understood by or associate with equally special people.

• Requiring constant admiration.

• Having a sense of entitlement.

• Expecting special favors and unquestioning compliance with your expectations.

• Taking advantage of others to get what you want.

• Having an inability or unwillingness to recognize the needs and feelings of others.

• Being envious of others and believing others envy you.

• Behaving in an arrogant or haughty manner.
Clearly, Donald Trump suffers from NPD, and it doesn’t take a professional to make the diagnosis. His symptoms are so obvious and non-subtle. Just as you don’t need a weatherman to tell you that it is raining outside (just look out the window), it is not that difficult for a lay person to tell when someone displays the classic symptoms of NPD.
The problem is not just that Trump’s NPD is annoying; it is that it is also extremely dangerous. NPD can alter a person’s cognitive and behavioral to such a deviation from “normal” that it can affect that person’s competency as to their life and job functions. It can exhibit itself in the following ways:

(1) Cognition (i.e. perception, thinking, and interpretation of oneself, other people, and events);

(2) Affectivity (i.e. emotional responses);
(3) Interpersonal functions; and
(4) Impulsivity.
Does this description remind you of someone you have seen recently? I’ll give you only one hint: he was just sworn in as President of the United States.
Another characteristic of a Narcissist is that he/she will never admit to being distressed by their own behavior. Instead, they always blame other people for any problems.
In extreme cases – which is what we apparently are facing with Donald Trump – a Narcissist presents a danger to others because they are in complete denial of reality and lack empathy, which may manifest itself in, for example, ignoring requests to cease behavior (such as cheating and lying); name calling, criticizing, belittling, mean “jokes”, jabs and put downs (verbal abuse); arguments surrounding the same issues over and over; no “closure” – no apologies, no accountability, no consequences, no change.
Trump’s meltdown at the CIA on Saturday, January 21, 2017, one day after his inauguration, should be cause for alarm. His obsession with what he considers to be the undercounting by the mainstream media of his inauguration crowd, to the point where he ordered his press secretary to make an announcement of “alternative” head-count figures, shows that he has crossed the line from just neurotic to pathological.
And why is he bragging – as he did at CIA headquarters — that he has been on the cover of Time Magazine 15 times, while Tom Brady has only made it once? He is President of the United States, for G-d’s sake, and yet he is so insecure and self-obsessed that he has to publicly remind people that he is the most powerful and important person in the room. It just doesn’t compute, and is not normal. This is because he has serious mental problems.
Perhaps the reason why not many Trump voters took the trouble to travel to Washington to watch the induction ceremonies is that they have gotten that same sinking feeling in the pits of their collective stomachs as the rest of us about Trump’s mental instability and lack of basic competency to fulfill the requirements of the job. Trump and his team let the transition period slip, with day after day representing a missed opportunity to heal the country’s wounds, to bring us together, or at least lay the groundwork for a competent Trump Administration. It is more than “buyer’s remorse” that all of us are experiencing. Despite what they have said after the fact, few – including Trump himself – actually thought that he would be elected as President and have to actually serve in that position. He craved the attention of the campaign, and probably thought that if his long-shot bet actually paid off and he became the 45th President of the United States, that his insecurity and constant need of reassurance that he was “the Greatest” in every possible category would somehow dissipate and he would have the genuine confidence that he had always craved. However, now that he is President, and is unquestionably the Most Powerful Man On the Planet (yes, even more powerful than Vladimir Putin), he still has the same feelings of insecurity and lack of self-worth, and it having extreme difficulty coming to terms with the stark reality that he will always feel this way and there is nothing he can do about it to permanently ease the pain.
At this rate, if Trump psychological condition deteriorates any further, he will have to be declared to be incompetent to hold office.
Not that most of us would welcome a Pence Presidency. But it seems more and more likely that this is the direction in which we are headed.
There is only one reasonable response to a Trump Presidency, and that is to remember the immortal words of Woodrow Wilson over a century ago: “The history of liberty is the history of resistance.” Long live the Resistance!

THE RELEASE BY BUZZFEED NEWS OF THE “TRUMP RUSSIAN DOSSIER” HIGHLIGHTS THAT THE FBI HAS KNOWN ABOUT THE TRUMP CAMPAIGN’S TIES TO RUSSIA SINCE AT LEAST AUGUST 2016, BUT HAS CONDUCTED VIRTUALLY NO INVESTIGATION OF THESE ALLEGATIONS

The publication last Tuesday by BuzzFeed of the 35-page document – referred to as a “Dossier” — prepared by a former British intelligence officer regarding the ties between President-elect Donald J. Trump and the Russian government has triggered a huge political stir in Congress and, of course, in the Office of the President-Elect, but contains little news that has not been widely known within the media, as well as in the law enforcement and intelligence communities.
Specifically, the FBI and U.S. intelligence agencies have had information relating to the direct communications between the Trump Campaign and the Russian government since at least July/August 2016, when it was first alerted that Paul Manafort, Trump’s former campaign manager, and Carter Page, Trump’s foreign policy advisor, as well as other intermediaries, were receiving information originating with the government that was extremely helpful to the Trump Campaign, and extremely damaging to Hillary Clinton.
As I reported in my law firm’s blog on October 31, 2016 (www.mccallionlaw.com.blog ), the FBI was “applying a double standard when it comes to publicly confirming whether the FBI has active investigations relating to the two major Presidential candidates.” As I pointed out, FBI Director Comey’s cryptic letter to Congress — eleven days before the November 8th election — announcing that the FBI was reviewing some new emails that may or may not be relevant to Hillary Clinton and her use a private email server, was grossly unfair to the Clinton Campaign and the American public, not only because it was inevitably designed to influence the outcome of the election, but because Comey was remaining silent as to the far more explosive investigation it had regarding to possible treason by high-ranking members of the Trump Campaign. Specifically, I sharply criticized Director Comey regarding his refusal to comment on “whether FBI agents had sought to speak with or had interviewed Trump former campaign chairman Paul Manafort, or his deputy, Rick Gates, even though it is widely known throughout the law enforcement and intelligence communities that there is an active FBI investigation of Manafort, Gates and others for money laundering and other illegal activities ever since documents surfaced in Kiev, Ukraine in August 2016 showing that Manafort had received over $12 million in cash from the pro-Russian former President of Ukraine, Victor Yanukovich.”
I was able to reliably report on these investigations since I had personally received reliable information regarding the money laundering operations by Manafort, Gates and others through various companies and bank accounts located in New York and elsewhere, and had brought a civil racketeering lawsuit on behalf of various clients against Manafort, Gates and a Ukrainian oligarch – Dimitri Firtash – who was supplying much of the illegal money that was then “laundered” through these U.S.- based accounts. We also named as a defendant Manafort’s former boss – Victor Yanukovich – – the pro-Russian former President of Ukraine, who was run out of Kiev during the so called “Maiden Revolution” in Ukraine in February/March 2014, and is now residing in Moscow under the protection of Vladimir Putin.
During our investigation, we also collected valuable information regarding the ties between Manafort/Gates and Russian oligarchs and organized crime leaders based in Moscow. All of this information was turned over to the FBI, and Firtash was later indicted by the U.S. Dept. of Justice on similar money laundering and corruption allegations.
The former MI-6 British intelligence officer also provided the FBI with specific information regarding the connections between Manafort/Gates and Russian operatives. For example, he reported in his “Dossier” that he learned “in late July 2016, Source E, an ethnic Russian close associate of Republican US presidential candidate Donald TRUMP, admitted that there was a well-developed conspiracy of co-operation between them and the Russian leadership [and that] this was managed on the TRUMP side by the republican candidate’s campaign manager, Paul MANAFORT, who was using foreign policy advisor, Carter PAGE, and others as intermediaries.”
In fact, the former MI-6 agent believed this and other information urgently needed to get into the hands of the U.S. law enforcement and intelligence agencies, that – without even the permission of his private clients who had commissioned his investigation – he turned the fruits of his investigation over to U.S. law enforcement and others. He specifically alerted the FBI not only to the possibly treasonous activities by Manafort and Gates themselves, but also – as I had done – the various “ethnic Russian” operatives both within and close to the Trump Campaign.
Yet the FBI did nothing, and kept the entire matter under wraps while, at the same time, the agency leaked like a sieve as to Hillary Clinton’s emails and the “dangers” that some of her emails might have been hacked by Russian operatives.
I also reported in my October 31, 2016 blog that the FBI investigation also covered the money laundering activities of the Trump Organization with regard to the huge influx of cash from that Company from Russian and Eastern European sources, including money provided by known international criminals and organized crime racketeers. For example, the Trump Soho project in lower Manhattan was largely financed by illegally-obtained cash from Russia and Eastern European sources, including money provided by known international financial criminals and organized crime racketeers. The Trump Soho project in lower Manhattan was largely financed by illegally-obtained cash from Russia and several former Soviet Republics, and Trump specifically marketed his Sunny Isles, Florida apartment units in Moscow, St. Petersburg and other venues designed to attract Russian organized crime money, Such as the French Riviera. So much tainted Russian money poured into Trump’s Sunny Isles project that the entire area came to be referred to as “Little Moscow,” complete with Russian shops, restaurants and even directional signs.
As I have previously reported, foreign condo owners in Trump’s Sunny Isles project include Peter Kiritchenko, a Ukrainian businessman arrested on fraud charges in San Francisco in 1999, who, with his partner — former Ukraine Prime Minister Pavlo Lazarenko, laundered hundreds of millions of dollars through the U.S. and elsewhere. Kiritchenko avoided jail time in the U.S. by agreeing to testify against Lazarenko, who was convicted of money laundering and spent 13 years as a client of the U.S. Bureau of Prisons.
Other proud owners of Trump condos at Sunny Isle include Anatoly Golubchik and Michael Sall, members of a Russian-American organized crime group who ran an illegal high-stakes sports betting ring catering almost exclusively to wealthy oligarchs from the former Soviet Union. The list goes on and on.
Based on the fact that Trump’s buildings in New York and Florida were filled with Russian/Ukrainian oligarchs and their families, the Trump Organization (and therefore the Trump Campaign) were in a unique position to collect detailed ongoing information regarding these Russian/Ukrainian expatriates, which was a very valuable bargaining chip with Putin and the Russian intelligence organizations, since Putin has always been paranoid about the ability or likelihood of various Russian oligarchs to undermine his iron grip on all things Russian, both domestically and internationally. So the Dossier (at page 11) has the ring of truth to it to the extent it further reports that a “Source close to TRUMP campaign …confirms regular exchange with Kremlin has existed for at least 8 years, including intelligence fed back to Russia on oligarchs’ activities in the US.”
It was not until the President-Elect strongly denied being briefed about the Dossier at his Thursday news conference – calling it “fake news” – that Director of National Intelligence James Clapper and others felt compelled to correct the record by confirming that Trump had, in fact, been briefed on the Dossier, and that FBI Director Comey had specifically taken Trump aside during the recent intelligence briefing to advise him that this information was “out there.” In fact, it has now been disclosed that the Dossier had been widely circulated before the BuzzFeed publication and that it was the height of irresponsibility for the President-Elect to accuse the intelligence community for the “leak” of such a widely available document.
The former MI6 agent has disappeared “off the grid” and is unavailable for comment. Definitely a wise move. The stakes here are very high, and the Kremlin kleptocracy has shown no compunction about terminating with extreme prejudice even those on foreign soil whom they deem pose a threat to them. One of my sources regarding Trump’s Sunny Isles’ holdings recently died after falling (or being pushed) off an apartment balcony of a Sunny Isles apartment. Was his death related to our continued investigation of the ties between the Trump Organization and Russian/Ukrainian oligarchs and organized crime operatives with apartments in Sunny Isles, or was his death a coincidence and unrelated to this investigation? Strangely, his computer and phone went missing, so it is difficult – if not impossible – to fully investigate his contacts in the final days and hours before his fateful plunge. Very unsettling.
In any event, President Elect Trump’s baseless attacks on the press and intelligence communities should not detract from the most important “take away” from the release of the Dossier, and its importance has virtually nothing to do with alleged sex tapes from a Moscow hotel, or whether Trump is a “germaphobe” or not. Those are all sideshows and distractions from the real issue of paramount national importance: Did high-ranking members of the Trump Campaign, including several of those following him to the White House, commit high crimes and misdemeanors – basically treason – against the United States and, if so, what did the President Elect know about it and when did he know it. Question 2: Why did FBI Director fail to disclose its investigation of the Trump Organization’s Russian ties at the same time that he was making public statements about the Clinton email investigation. In other words, why was Director Comey focusing the public’s attention on the tail of the dog (the email investigation), without disclosing the much more important investigation of the dog itself.
The American people have a right to know. NOW!

COMEY, GIULIANI AND THE POLITICALIZATION OF THE FBI

No matter what the outcome of the Presidential election, the FBI is shaping up to be one of the biggest losers of this election season. Over one week’s time, the FBI’s well-deserved reputation for being a professional law enforcement agency operating above the political fray has been virtually flushed down the toilet into the murky cesspool of contemporary American politics.
On Friday, October 28, 2016, FBI Director James Comey gave us his “October Surprise”, darkly hinting through a thin veil of innuendo that Hillary Clinton might be due for another round of email investigations. Shortly after he sent this incendiary letter up to Capitol Hill, it was leaked that the possible renewed FBI interest in Secretary Clinton was a fallout from a probe of former Congressman Anthony Weiner’s laptop computer that he had shared with his estranged wife and top Clinton aide, Huma Abedin. As further details emerged, it was learned that the FBI had not actually seen the emails on Weiner’s computer because no court order had yet been issued or even sought permitting a search of his computer. Nor did the FBI know whether Weiner’s computer contained any emails that were sent to or from HRC, and if so, whether those emails were merely duplicates of emails already reviewed by the FBI.
In other words, Director Comey intentionally interjected the FBI into the Presidential Campaign, and since the clear (albeit erroneous) implication to the public was that the FBI Director would not send a letter to Congress on such an important topic eleven days before a national election if he had not already determined – at least preliminarily – that the new emails contained some “smoking gun” classified documents that would warrant a reopening of the FBI’s investigation of Ms. Clinton.
What we now know one week later is that Director Comey knew or should have known at the time he released the letter to Congress (knowing that it would be made public a few nanoseconds after it reached the Hill) was that an agent or agents in the FBI’s New York field office had already leaked the story about these “new emails” to the Trump Campaign. This is why Rudy Giuliani was already appearing on Fox News, smiling like the Cheshire cat and barely able to keep himself from spilling the news that he knew was about to be publicly released by the FBI. He cryptically announced that the Trump Campaign had “a couple of things up our sleeve” that would be “game changers.” And then, as if on cue, the FBI Director drops the letter bombshell two days later.
One week later, four days before the election, Giuliani confirmed that he knew that something big was happening at the FBI, thus confirming that FBI insiders had leaked information to the Trump Campaign in advance of Comey’s announcement. Giuliani insisted that he had learned about this information from former FBI agents, who had presumably received the information directly from active FBI agents, but whether the leak to Giuliani was a one step or a two-step process makes little difference. The important point is that the FBI has now joined the Russians and WikiLeaks as full-fledged members of the Stop Hillary campaign.
For the past 40 years of the post-Watergate era, the FBI and the Department of Justice have largely steered clear of partisan politics, re-building a generally well-deserved reputation as professional investigative (in the case of the FBI) and prosecutorial organizations. Public release of information regarding criminal investigations came only after indictments were handed down, and if a decision was made not to indict a high-profile subject or target of an investigation, any derogatory information obtained about that individual was not leaked to the press. Such information remained secure in the FBIs confidential files, no matter how frustrating it was to the FBI agents or AUSAs who had worked on the case, only to have it decided by higher-ups in Washington that the investigation would not proceed to an indictment and trial.
One notable exception to this general rule was Rudy Giuliani, who was as an Assistant U.S. Attorney and then U.S. Attorney in New York was so consumed by an overwhelming ambition for publicity and self-promotion, that he regularly leaked information about Grand Jury investigations and other confidential information to the press on “deep background.” He was often at the center of the “anonymous sources” within the Justice Department that reporters were so fond of citing. To be sure, Giuliani had many successful prosecutions of high-level political and organized crime figures during his tenure as a federal prosecutor, but his habit of leaking information to the press in advance of indictments or before a trial did some irreparable damage to the professional reputation of the federal prosecutors office in New York and the federal judicial system here.
The flip side is that Rudy Giuliani also took a “pass” on some cases involving high profile individuals, such as Donald Trump. During the time period that Trump Towers and Trump Plaza were being built in Manhattan, the mob-controlled Teamster Local 282 and its President, John Cody, had a virtual lock on every major construction site in the City. Every truck driver who drove a redi-mix cement truck onto a jobsite was a member of Local 282, and if the real estate developer did not make an illegal side deal with John Cody’s union, the flow of redi-mix cement would be cut off and the entire construction project would grind to a halt. Through the good offices of Roy Cohn, the mentor and godfather to Donald Trump, a deal was made with Local 282 whereby Trump agreed to hire no-show Teamster foremen, whose salaries were then funneled to the organized criminal organizations controlling the Teamster Local. Trump also agreed to modify the construction of Trump Tower to accommodate an apartment for one of Cody’s girlfriends and mob associate, Verona Hixon, who wanted a swimming pool included with her massive Trump Tower apartment, which was second in size only to Trump’s own apartment.
In order to close the deal with organized crime and guarantee that his Manhattan construction projects would not be interrupted by labor strife or work stoppages, Trump and Cohn also made a deal with “Fat” Tony Salerno, another notorious mob figure who owned C&A Concrete, the redi-mix cement company whose trucks delivered the cement to the Trump Towers and Trump Plaza job sites. Trump readily agreed to pay C&A an inflated contract amount, knowing that the excess profits would go into the coffers of organized crime.
During the Justice Department investigation of Teamster Local 282, the FBI and federal prosecutors working on the case were able to get the cooperation of at least one of the developers who made a corrupt deal with the union, but when Donald Trump was questioned about his dealings with the union, he refused to cooperate and adamantly denied that he had any illegal deal with either Local 282 or with C&A Concrete. With some difficulty, the Justice Department was still able to indict and convict John Cody on racketeering charges based upon the testimony of Sigmund Somers, one of the other major real estate developers in the New York area, but the investigation and prosecution would have gone much more swiftly if Trump had cooperated. Moreover, once Cody was indicted, he called a City-wide strike of truck drivers that closed down every major job site in the New York City area, with the notable exception of the Trump Towers and Trump Plaza job sites, which were specifically exempted by the union, based in large measure to the fact that Trump had proved himself to be a “stand up guy” who had refused to cooperate with federal law enforcement.
In fact, since lying to FBI agents and federal prosecutors is itself a federal crime, even if those false statements are not made under oath, there were those within the federal law enforcement community, myself included, who strongly felt that Donald Trump should have been indicted, but we were overruled by those further up the ladder in the Justice Department. At the time, in 1981 and 1982, Rudy Giuliani was the Associate Attorney General, the third highest official in the U. S. Department of Justice. As part of his supervisory responsibilities over all the U.S. Attorney’s Offices around the country, Giuliani would have necessarily had a decisive policy-making role as to whether the major labor racketeering investigation underway at that time, including the investigations of Teamster Local 282 and C&A Concrete, would have focused exclusively on the prosecution of corrupt union leaders and organized crime controlled construction companies, or whether real estate developers like Donald Trump who had entered into unlawful racketeering agreements with organized crime controlled unions and construction companies but who refused to testify truthfully about it should also be prosecuted.
By actively participating in the transformation of the FBI from a professional non-partisan agency into a political arm of the Trump Campaign, Rudy Giuliani is helping cause irreparable damage to the FBI’s integrity and reputation. And if Giuliani were to be named as the next Attorney General of the United States, this country would have the most political and partisan Attorney General since John Mitchell was found guilty of conspiracy, obstruction of justice and perjury following the Watergate Scandal.

THE CURRENT ASSAULT ON FREEDOM OF THE PRESS AND OTHER CORE AMERICAN VALUES

 

One of the most troubling aspects of Donald Trump’s campaign, from a constitutional and legal perspective, is that he is the first presidential candidate in history (or at least in my lifetime) who refuses to accept as a “given” established core values of our constitutional democracy. These core values include Freedom of Speech and of Religion, which are embedded in the First Amendment to the U.S. Constitution, and the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments.

If Donald Trump’s campaign is any indication of what a Trump Administration would be doing, then we can anticipate that the freedom of speech and expression exercised by non-violent protesters at his rallies would continue to be suppressed. Mr. Trump himself has repeatedly urged his supporters at his mass rallies to assault non-violent protesters. He has also made a continuing practice of belittling and berating the press for its coverage of his campaign and has even withheld press credentials from certain news organizations that have had the temerity to report on certain aspects of his campaign in a negative light.

On Monday, September 19, 2016, immediately after a series of bombings in New York and New Jersey, Trump blamed “freedom of expression” as a potential roadblock to the war against terrorism. In an interview on Fox News, Trump blamed freedom of the press for the fact that magazines were being sold that published bomb-making instructions. He did not identify which magazines he was referring to, but presumably, he was referring to Al Qaeda’s English-language propaganda magazine, Inspire, or jihadi websites that publish bomb-making instructions. What Trump failed to note – perhaps because he does not himself know – that these kind of magazines are not sold at any mainstream U.S. bookstores or newsstands.

Trump’s suggestion that First Amendment freedoms should be eliminated, or at least abridged, under the guise of supporting the fight against terrorism is reminiscent of Putin’s heavy-handed attacks on press freedom in Russia by labeling all media opposition there as unpatriotic or treasonous.

Over the past few years, numerous prominent Russian reporters have been found murdered or have “disappeared” after writing articles critical of Putin and his inner Kremlin circle. Similarly, the political opposition in Russia has been mostly crushed with the jailing or exile of several prominent political opposition leaders. As Timothy Snyder pointed out in a recent New York Times article on Russian fascism (09/21/16), Putin has long idolized Ivan Ilyin, the founding father of Russian fascism, who believed that individuality, diversity, and democracy were evil, and that the only thing that was important was a Holy Russia governed by a “national dictator.” Writing in the 1930s and 1940s, Ilyin looked to Mussolini and Hitler as the kind of leaders who could save Europe by destroying democracies and the individual freedoms that went along with them.

Trump’s real concern with the press and American media in general is that it has been largely critical of both him and the policies that he has espoused in his campaign, suggesting, for example, that his proposals to build a multi-billion-dollar Wall on the southern border with Mexico would be ineffective at stemming the flow of Mexican immigrants, a nonsensical waste of money and resources, and an environmental catastrophe. The press has also portrayed him and his campaign as xenophobic, misogynistic and racist, which Trump has considered being “unfair” and “false”, even though mainstream reporting is, for the most part, backed up with a wealth of documentary support. Trump has now ratcheted up his criticism of the press by suggesting that the media coverage of his campaign and press freedom in general is basically harmful to the country as long as we are in the midst of an existential war on terrorism.

What Trump seems to be missing, or at least ignoring, is that America’s longstanding tradition of a free and uncensored press is precisely part of what has made this country an exceptional example of how real democracies are different from autocratic pseudo-democracies such as Russia, Turkey and countless other “republics” in name only around the globe.

A likely reason why Trump has expressed such admiration for President Vladimir Putin of Russia is that, if elected, he would like to emulate Putin’s iron hand when it comes to the press and political dissent. Correspondingly, Putin’s embrace of Trump and aversion to Hillary Clinton springs from his belief that Clinton, as Secretary of State during the Russian parliamentary elections of December 2011 and the presidential elections of March 2012, gave the signal to the Russian opposition to demonstrate in the streets against the rigged elections and stuffed ballot boxes that kept Putin and his ruling party in power. Putin forced all nongovernmental organizations as “foreign agents” and branded all political opponents as enemies of the Russian state. It is not surprising, therefore, that Putin would support Trump and release hacked emails embarrassing the Democratic National Committee and Hillary Clinton, since Trump has reciprocated by expressing agreement with most of Russia’s foreign policy, including the weakening of NATO and the democratic republics of Western Europe and Ukraine. Just as the institutions of democracy have been hollowed out in Russia and reduced to a sham, the undermining of democracy in the U.S. and Western Europe is also part of the grand design of Putin and his former KGB cronies.

Given Trump’s affinity for Putin and the way that he has been able to control the press and to suppress dissidents in Russia, it is likely that President Trump would take similar steps to “discipline” the U.S. mainstream press, but denying White House press credentials to reporters who consistently question Trump’s policies and practices, by having his administration challenge the FCC licenses of offending news organizations, and other measures designed to stifle a free press. Borrowing from Putin’s playbook, opposition political leaders would also be likely subjected to a barrage of investigations and prosecutions by a politicized U.S. Dept. of Justice, with perhaps Chris Christie or some other political hit man being appointed to the position of Attorney General of the United States. And since President Trump would have the pardon power, no doubt Christie’s Bridge Gate problems would also be quickly solved.

The President of the United States has awesome powers. If used without restraint in order to silence critics or to get even with political opponents, the U.S. government can quickly be turned into something more closely resembling the pseudo-democracies of Russia, Turkey or countless other “republics” in name only, which outwardly profess adherence to democratic principles and the electoral process, but in practice are nothing more than autocratic regimes. These regimes rule through raw power and fear, who perpetuate themselves through the brutal suppression of free speech and a free press.

Although we take the Freedom of the Press for granted, this country has gone through some extremely troubling periods when there were severe restrictions placed on the right of free expression and freedom of the press.  It is entirely within the realm of possibility that such rights can be suppressed once again under the administration of a Trump or someone like him. It should be remembered that in 1798, only a few years after the passage of the Bill of Rights and adoption of the Constitution in 1791, the governing Federalist Party attempted to suppress criticism by means of the Alien and Sedition Acts, which made criticism of Congress and of the President a crime. Fortunately, Thomas Jefferson was elected President in the election of 1900, in part due to his opposition to the Sedition Acts, and he pardoned most of those who had been convicted under them.

During the Civil War, four New York newspapers were prosecuted in mid-1961 for “frequently encouraging the rebels by expressions of sympathy and agreement.” These actions all followed various “executive orders” issued by President Lincoln, including his eighth order on August 7, 1861, which made it both illegal and punishable by death to hold “correspondence with” or give “intelligence to the enemy, either directly or indirectly.” This was understood as an explicit direction for actions taken by various state and federal governmental officials to harass or prosecute newspapers and reporters who published any articles deemed to be sympathetic to the Southern cause.

During World War I, the Espionage Act of 1917 and the Sedition Act of 1918 imposed restrictions on the press, with offenders subject to fines of $10,000 and up to 20 years imprisonment for the publication of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States ….”

Similarly, a Minnesota law that targeted publishers of “malicious” or “scandalous” information was not invalidated by the U.S. Supreme Court until 1931, when the decision in Near v. Minnesota struck down this state law as an infringement on the First Amendment’s freedom of the press. In 1938, in Lovell v. City of Griffin, the U.S. Supreme Court extended the reach of the First Amendment’s freedom of the press beyond just newspapers and periodicals, holding that freedom of the press was a fundamental persona right extending to “every sort of publication which affords a vehicle of information and opinion. This, of course, now extends to the internet.

In January 2014, the Ninth Circuit Court of Appeals held, in Obsidian Finance Group LLC v Cox, that the protections of the First Amendment’s free speech and free press clauses extend to bloggers on internet, and that they cannot be liable for defamation unless the blogger acted negligently. The Ninth Circuit explained that journalists and bloggers are essentially equal under the First Amendment since those protections do not depend on “whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

One way that Donald Trump has said that he would consider restricting the freedom of the press is by loosening up the defamation and libel laws, which subject newspapers and other media outlets to possible lawsuits for the publication of information that is alleged to be false and defamatory. As the law now stands, however, there are severe legal restrictions on a person’s ability to successfully pursue a lawsuit for an allegedly defamatory article if that person may be considered to be a “public figure.” The reason for this is that in New York Times Co. v. Sullivan, a 1964 case, the Supreme Court sharply restricted such libel cases by holding that when a publication involves a public figure, a plaintiff in a libel suit bears the burden of proving that the publisher acted with “actual malice,” meaning that the publisher had to know of the inaccuracy of the information or statement being published, or acted with “reckless disregard” as to the truth of the statement. In another watershed case, in 1971 the Supreme Court, in New York Times Co. v. United States, upheld the publication of the previously secret Pentagon Papers, which contained some highly critical information regarding America’s involvement in the Vietnam War. I recall this case very clearly since I was a law school intern in the U.S. Attorney’s Office in Manhattan at the time that the case was argued in federal court.

If Donald Trump has his way, these and other restrictions on the ability of a public figure such as himself to sue the press for its negative reporting of him would be swept aside, and the country would embark on a new era of press restrictions and even criminal prosecutions of newspapers and investigative reporters, no doubt including the teams of reporters now delving into the illegal activities of the Trump Foundation.

IS TRUMP’S PROPOSED BAN ON MUSLIMS UNCONSTITUTIONAL?

The presumptive Republican candidate for President, Donald Trump, has proposed a ban on all Muslims entering the U.S., with the possible exception of Muslims who are already U.S. citizens, or members of the U.S. military seeking legal immigration status here.
The general reaction in the media and among most constitutional experts was to declare immediately and categorically that such a ban would be unconstitutional. They argue that it was prohibited by the First Amendment protection of Freedom of Religion, or the Fourteenth Amendment’s “Due Process Clause,” which bars the states from depriving “any person” of their property without “due process of law.” However, the answer to the question as to whether such a ban is constitutional or not is more complex.
To address this question from a purely constitutional perspective, we must put aside for the moment consideration of whether it makes practical, moral or ethical sense to impose a blanket ban on 1.6 billion people from entering the U.S. based solely upon their religious beliefs. Nor is the constitutional question the same question as whether such an action is consistent with fundamental American values and heritage, as summed up by the Statue of Liberty’s promise to generations of poor and oppressed people around the world (“Give me your tired, your poor, your huddled masses yearning to be free….”). The constitutional issues do not necessarily take into account the fact that our country was largely built by immigrants seeking refuge from religious oppression. Groups such as the Puritans, the Quakers, the French Huguenots came to America because they were fleeing religious oppression elsewhere, just as Muslim Shia refugees from Iraq and Syria have been seeking asylum in the U.S. as a result of persecution by Muslim Sunni terrorist groups such as ISIS.
As we have sadly learned throughout U.S. history, there is often a divergence between what is legal or constitutional and what is right and moral. Some of the darkest stains on the American soul have resulted from decisions that were found to be legal and constitutional, but nevertheless constituted outrageous deprivations of fundamental human rights. For example, slavery was legal in the United States up until the Civil War, despite the fact that by 1860, virtually no one argued that it was morally justifiable. Several decades later, during the 1890’s, in response to public hysteria over the “Yellow Peril” of Chinese immigration on the West Coast, Congress enacted legislation, known as the Chinese Exclusion Act, which effectively banned Chinese immigration. In a series of decisions, the U.S. Supreme Court upheld this ban on Chinese immigration, finding that such blatantly discriminatory legislation was constitutional. The Court relied upon the so-called “plenary power doctrine,” a legal concept articulated by the Supreme Court, acknowledging that Congress and the Executive Branch have tremendous power and discretion over immigration laws, and giving great deference to Congressional legislation dealing with immigration.
Similarly, the decision by President Roosevelt to acquiesce to West Coast hysteria regarding the perceived “threat” of an imminent invasion of the West Coast by the Japanese and to order that 100,000 innocent Japanese-Americans be herded into detention camps following Pearl Harbor was regrettably upheld by the Supreme Court as legal, although it was recognized by many Americans at the time, and by the post-World War II generations, as being morally repugnant and totally inconsistent with fundamental American values.
This ban on Chinese laborers and the incarceration of Japanese-Americans, however, was based solely upon ethnicity and national origin, not religion, and there does not appear to be any Supreme Court case that squarely addresses the constitutionality of such a ban based purely on religious grounds.
There is no question that the U.S., as a sovereign nation, has virtually an unfettered right to decide who enters the country and who is eligible for citizenship status. Congress has the power to decide who may become a citizen and has broad powers over foreign commerce. The President and the Executive Branch also have broad powers to manage foreign relations and to control and secure the nation’s borders.
The most recent case that is directly relevant to the issue of whether a broad ban on Muslim immigration may legally be imposed is the Supreme Court’s 1972 decision in the case of Kleindienst v. Mandel, which upheld the Executive Branch’s refusal to allow a Belgian scholar who subscribed to a Marxist political philosophy from entering the U.S. to give a series of lectures. In a 6 to 3 split decision, the Supreme Court reluctantly declined to second-guess the Executive Branch’s decision to ban Mandel based upon his political philosophy. This decision, however, should not be interpreted as giving a clear green light to a ban on all Muslims from entering the U.S. because that decision also rejected the argument made by the Executive Branch that U.S. courts do not even have the power to review such decisions. Also, the Court found that the Executive Branch’s reasons for excluding Mandel were “facially legitimate and bona fide,” leaving open the door to a possible future finding by the Supreme Court that there is no rational basis for a blanket immigration ban on all Muslims, and that the only true motivation for such a proposal is to pander to current public hysteria and xenophobia triggered by terrorist acts by Muslim residents and citizens of the U.S. in San Bernadino and Orlando.
The power of Congress and the President to ban entire groups based upon national origin or religion is not unlimited under the Constitution. Some portions of the Constitution only protect “citizens,” but other important sections were designed to protect all “persons” or “people,” not just citizens. The First Amendment, for example, speaks of “people,” not “citizens,” and thus protects the right of all people to exercise Freedom of Religion and Speech. A ban on Muslims would also arguably violate the plain language – or at least the spirit — of the Equal Protection Clause of the Fourteenth Amendment, which prohibits state governments from denying any “person” the equal protection under the law.
It should also be kept in mind that there have been many proposals in the past to ban “foreigners” of one ilk or another, and with the few notable exceptions previously mentioned, such isolationist and xenophobic views have never been implemented. Throughout U.S. history, there have been “Nativist” movements, whereby American groups and even political parties have sought to lift the drawbridge into the U.S. by seeking to bar all further immigration into the country. But if there is any clear lesson in American history, it is that successive waves of immigration have infused this country with the dynamic energy that has built the U.S. into the economic powerhouse that it is today, and in all probability, present and future immigration will continue to provide this same kind of energy. Just take a walk around virtually every American city or town, take a ride in a taxicab (or Uber), dine at a local restaurant, take notice of who is mowing the lawns, and you can see the faces of immigrants doing the necessary work that natural born Americans chose not to do.
One important legal question is that if a President Trump made good on his promise to ban Muslims from the U.S., who would have legal “standing” to challenge such a policy. Certainly, a Muslim outside the U.S. would not have the right to mount such a challenge since no foreign national has a constitutional “right” to enter the U.S.. In all likelihood, a legal suit would be commenced by one of the thousands of Muslim refugees from Iraq and Syria who are already in the U.S. and who have sought asylum. Since they are already in the U.S., and there is a strong body of law already in place recognizing the due process rights of detainees in deportation cases, they would be in a strong position to argue that there is no legal or even rational basis for deporting them solely based upon the arbitrary and discriminatory views held by Mr. Trump and others regarding their religious beliefs. Moreover, given their physical location on U.S. soil, these Muslims could also argue that they have a huge personal stake and “property interest” in remaining here in the U.S.
Given the fact that legal scholars and Supreme Court justices must be painfully aware of the Court’s tragic record of jurisprudence upholding blatant discriminatory legislation targeting specific groups, such as the Chinese or Japanese-Americans, it would be expected that this Supreme Court would take a more enlightened – and critical – view of any legislation or executive action to ban all Muslims from entering the U.S. As P.T. Barnum was fond of saying, “No one ever lost money underestimating the intelligence of the American public.” Hopefully, the same will not be said about the current or future Supreme Court. But only time will tell. In the meanwhile, it is important to recognize that the question of whether Muslims may be barred from entering the U.S. solely based upon their religion is not just a legal and constitutional question, but also a fundamental moral and ethical one that may define what it means to be an American for generations to come.