Posted on by rjonakait · 1 Comment

Weaponization

Trump is trying to fire Lisa Cook. Ironies and questions abound. And chutzpah.

Lisa Cook was confirmed by the Senate as a Governor of the Federal Reserve in 2022. The Fed is supposed to be independent of the President, and Governors can only be removed “for cause.” The provision does not define “cause” or who determines it or how.

Trump’s claimed cause? According to allegations from the Federal Housing Finance Agency director Bill Pulte, Cook committed mortgage fraud by claiming two different homes as her primary residence in 2021. Trump claims these allegations as the cause for firing. Questions abound. Can allegations be “cause”? Even if true, does this constitute cause if it is unrelated to Cook’s performance on the Fed? Is it cause, even if true, if the conduct occurred before her confirmation and was not considered disqualifying by the Senate? Many Senators surely were looking for reasons to prevent her from getting the position. Her confirmation vote was at first deadlocked at 50-50 with Vice President Kamala Harris casting the tiebreaking vote.

Some of the ironies. Or chutzpah. Trump claims the allegations by themselves constitute cause. This is from a man who has been convicted of fraud for falsifying business records to hide payments made to Stormy Daniels. She got hush money payments to keep her tryst with Trump out of the news during his first campaign. Moreover, Trump was found to have committed something closely akin to mortgage fraud in a separate civil suit. He set high values on properties when seeking loans and lower values on the same properties for tax purposes. These adjudications, not mere allegations, have not disqualified him from the presidency.

A different irony: Many Trumpistas labeled these New York legal actions as dangerous political persecutions. For example, a conservative pundit on a “news” channel said that it is dangerous when prosecutors target individuals, and New York prosecutors had campaigned on the promise to “get” Donald Trump. They had a point, but they are notably quiet about targeting now. Cook, of course, is being targeted by federal officials. Their concern is not mortgage fraud. Instead, Trump wants to control the Fed. In other settings–the Labor Statistics Bureau comes to mind–Trump has simply fired those who promulgate data that he dislikes. If he were able to fire Cook as easily, he would, but with the Fed he must find “cause,” but any cause will do.

There are several ways in which prosecutions occur. Most take place because a crime is committed, and law enforcement sets out to find the bad guys. If the purported criminals are caught, they are prosecuted. A convenience store is robbed; a person is murdered; or someone is assaulted. If there is an arrest, a prosecution follows.

What might be called investigatory prosecutions are different. The authorities have reasons to believe that a person has committed a crime which is not publicly evident—stock fraud or loan sharking, for example. The authorities investigate to see if indeed the crime was committed and to collect evidence for the prosecution of the stock fraud or loan sharking.

Targeted prosecutions are different. In a small number of instances, authorities determine that a person is “bad.” They investigate to find a crime that he has committed and prosecute him for that even though the crimes are not the ones the authorities were truly concerned about. In this setting a crime is not targeted; a person is. This happened to Al Capone a century ago. Prosecutors knew that Capone was a bootlegger who used unprecedented violence to protect and extend his operations. However, apparently because witnesses could not be found to testify to these activities, they could not prosecute him for those crimes. Instead, after an extensive investigation, Capone was prosecuted for income tax offenses. Prosecutors convinced a jury that Capone lived well beyond the means possible on the income he reported. Therefore, he must not be paying all the tax he owed. Thus, Capone went to prison not for murder or other violent crimes, but for income tax evasion.

Trump and his supporters claimed that legal actions in New York had targeted Trump. That seems to have been true. New York prosecutors, who are elected, had made campaign pledges to “get” Trump. The Trumpistas maintained that such targeting is dangerous. Is it? Trump in fact committed the illegal actions he was charged with, or so the adjudications showed. How, then, can the commentator claim that targeting an individual is dangerous?

A certain kind of moralist may simply say, “If he did the deed, punish indeed… let him bleed.” But let’s combine some theology with the law. If you are of the Original Sin disposition, we all do things that are wrong. And even if you don’t subscribe to Genesis, you might know that we have many, many laws with blurry boundaries. (Almost) all of us have committed illegal acts, but stealing a pencil from work, overstating a charitable deduction, or slapping an acquaintance is almost never prosecuted. Our justice system would be overwhelmed if it had to handle every violation of the law. However, if the authorities want to “get” someone, and they have enough resources to investigate that person thoroughly, they will almost always be able to bring some sort of criminal or civil prosecution. And, yes, that is a scary power.

The Trumpistas, however, no longer proclaim prosecutorial targeting as dangerous because they would then have to denounce Trump’s actions. Lisa Cook’s criminal referral is not an attempt to enforce mortgage fraud. It is an attempt to find a reason, any reason, to remove her as a Fed governor. The problem is not that she is a criminal. Her problem is that she has not bent to Trump’s will. Letitia James, NY State’s Attorney General, and Senator Adam Schiff are being investigated for mortgage fraud not as a deterrent for loan shenanigans, but because they have opposed Trump. This is clear when news reports tell us that right-wing Texas Attorney General Ken Paxton has listed three homes as primary residences. Yet he is not being investigated for mortgage fraud.

Prosecutors targeted Capone for his horrendous crimes. Trump and his supporters are now targeting people not for crimes they may have committed, but simply because they don’t kowtow to Trump and his demands.

And yes, that is scary.

Posted on by rjonakait · 1 Comment

Birthering Trump

Another birther conspiracy. This one also concerns a person of color. This time it is Kamala Harris.

A vice president must have the same three constitutional qualifications as a president. The person must be a “natural born Citizen” of the United States; must be at least thirty-five years old; and must have been a resident within the United States for at least fourteen years. (I know that many people don’t really want to believe that New York City where Trump was a resident for nearly all his life is part of the United States, but I don’t think anyone will suggest he does not meet the fourteen-years-a-resident requirement. His residency now is Florida where he can mingle with the people of a certain sort at Mar-a-Lago and where he has requested a mail-in ballot.)

Obama birthers focused on the “natural born Citizen” language. The requirement has been usually interpreted to mean that a person must be a citizen upon birth to qualify for the presidency and that a naturalized citizen cannot become president. However, the requirement in the Constitution’s Article II does not simply say “a born Citizen” or “a Citizen when born.” It includes the qualifier “natural.” What did this qualifier mean to the nineteenth century men who drafted and adopted the Constitution?

I don’t know, but if a person can be “natural born,” there must be people who are non-naturally born. Is it a “natural” birth within the meaning of our 1789 Constitution if the delivery was by caesarian section; if the baby was conceived by artificial insemination; if the mother used sedatives during labor? I don’t understand why those subject to conspiracy theories have not been presenting ideas on “natural.” Unfortunately, however, I don’t have any baseless, outlandish, stupid theories of how this word could disqualify Trump or anyone else.

The original Constitution used the term “citizen,” but it did not define how citizenship was obtained or what it meant. The Fourteenth Amendment, adopted in the wake of the Civil War, states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Even the least able of constitutional scholars know that the purpose of the amendment was to give or ratify citizenship of Blacks. Any Black born in the United States is an American citizen. The Obama birthers claimed, without evidence, that he was born in Kenya or Indonesia or somewhere other than Hawaii. Although they presented no proof that he was born other than in the United States, they demanded that he produce a birth certificate, and after that, they whined for a long form birth certificate. Even after that was presented, some still grumbled about fraud or forgery.

However, even if Obama were born in Kenya, it would not tell us that he did not meet the constitutional requirement to be President—that he was not a natural born citizen. The Fourteenth Amendment does not purport to define the natural-born-citizen requirement of Article II, and it does not state that the only way you can be a citizen is to be born in the United States or to be naturalized. Consider two American citizens on a sojourn in a foreign land when a child is born unto them. That little miracle was not born in the U.S. and does not have the birthplace citizenship defined in the Fourteenth Amendment, but we have not required that child to be naturalized to become a citizen. There are other paths to citizenship than what is defined in the Fourteenth Amendment. A law confers citizenship on this foreign-born darling when delivered, and if the Constitution is requiring citizenship at birth, this love-of-their-lives in thirty-five years, if fourteen of them include residence in America, is eligible to be President. Obama was born to an American mother. If that made him a citizen at birth, the Fourteenth Amendment was irrelevant to whether he met the Article II requirement. The birthers, however, as far as I know, never addressed that when they said, erroneously, that he was not born in America.

The new nest of birthers concede that Kamala Harris was born in the United States but contend that somehow she still is not a natural born citizen. The argument has something (nonsense can never be fully understood) to do with the Fourteenth Amendment’s clause that a person born in this country is a citizen only if “subject to the jurisdiction thereof.”

This phrase was put into the Constitution because of Native Americans and diplomats. In legal theory, Indian tribes were sovereign nations, and their members were subject to tribal law. Americans may have only sporadically, at best, respected the sovereignty of Native Americans, but the drafters and adopters of the Fourteenth Amendment, while desiring Blacks to have citizenship, did not want citizenship for Native Americans and inserted that subject-to-the-jurisdiction-thereof clause to prevent birthright Indian citizenship.

The Fourteenth Amendment’s drafters and adopters did not want birthright citizenship for children born to diplomats on American soil either. Because of diplomatic immunity, diplomats and their families are not subject to the laws of the United States, and because of the restriction in the Civil War Amendment, children of diplomats born in the United States do not have automatic citizenship.

(continued August 24)