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Interesting times

Jack LB GohnFor a columnist who writes about policy matters, this is a challenging time. In principle, we live in a target-rich environment. Probably not since the New Deal has there been such a concerted effort by government to change existing laws and policies. And probably never since the Articles of Confederation has there been such incoherent policymaking, in all branches of government. And maybe one has to look back to the last days of the Roman Empire to find such costly improvidence at the top, the gleeful and deliberate fiddling while the whole environment literally burns.

The level of governmental dishonesty and greed motivating and accompanying all of this is commonplace enough not to require historical comparisons – but does require geographical ones. Our corruption level is beginning to resemble what one might look for in places like Russia or the Congo.

All of it great column fodder.

Nonetheless, the situation is actually daunting for a scribe. The instant analysis of each development reposted to any Facebook feed assures that the minutiae of any issue are quickly aired. But because of the interconnectedness of all of these issues, the big picture quickly becomes too broad to talk about, particularly given what we don’t yet know.

Take, as an example – and there’s only time for one example – what has come to be called Russia-gate. We don’t yet know precisely what’s at the heart of the story. What did Russia do or attempt to do in its contacts with the Trump campaign? Interfere with the mechanics of the election? Commit the Trump team to making Moscow-friendly policy changes – as Trump’s recent failure to endorse the mutual defense principle, core to NATO’s mission, in the face of recent Russian military incursions westward and southward, seems to confirm? Or simply compromise members of the team for future use?

And what was the Trump team doing? Obtaining illegal help with the election? Pledging policy changes? Getting help or promises of help with Russian business or funding? Acceding to blackmail because of pictures of Trump cavorting with Russian prostitutes, as has been alleged? A “yes” answer to any one or more of these questions probably establishes serious illegality.

A lot of ink has been spilled parsing out yes answers against various criminal statutes. But all we know for sure at this point is that our intelligence agencies picked up some contacts, involving apparently at least Michael Flynn and Jared Kushner, and that Flynn engaged in improper policy talk. No definite fire.

A lot of smoke

Still, there’s a lot of smoke of more recent vintage. We know that some of Trump’s income in the past is of Russian origin, which in itself is not necessarily illegal, though it probably puts him in bed with Russian gangsters and Russian intelligence, and would raise serious Emoluments Clause problems if the business continued now that he is president.

The trouble may be, as it was in Watergate, the cover-up as opposed to the underlying offense. (The White House spokesman at the time accurately called the underlying offense “a two-bit burglary.”) There has certainly been a comment-worthy cover-up.

We know that Trump: tried to suborn the then-head of the FBI, James Comey, by asking for loyalty (obviously of the personal variety, despite a later effort to parse it as loyalty to the Constitution); grew furious when Attorney General Jeff Sessions had to recuse himself from control of the FBI’s investigation; fired Comey while trying to make it look as if the Deputy Attorney General Rod Rosenstein had instigated it; and tweeted furious defiance when Rosenstein appointed Robert Mueller to continue the investigation independently.

Apart from the fact that it looks like nothing so much as a rerun of Watergate itself complete with a “massacre,” you could comment about various subjects like independence and absence of political control within the Justice Department, and about what Trump could do in future to spike the investigation.

Morass of misbehavior

Then there’s the question of potential consequences of what might be found, either by way of underlying offense or cover-up. What in this morass of misbehavior might constitute impeachable offenses, given that, for instance, treason requires an “enemy” to aid and comfort – and Russia may be perceived as an enemy by some, but evidently not by the administration, which makes foreign policy. Does the administration get the right to define the vocabulary under which it may be impeached?

And speaking of definitions, you can also be impeached for “high crimes and misdemeanors.” Anyone care to state categorically if anything Trump and his crew may have done fits under that vague rubric? How about the hundredth column on whether the Republican Congress would summon the political will to impeach? Or better yet, the column I haven’t seen yet, on whether, if only Trump’s henchmen can be proven to have had illegal contacts with Russian henchmen, but not Trump himself, is sufficient to be grounds for impeachment. In other words, can high crimes and misdemeanors be a vicarious offense? And even if it can, how do you prove it if only proxies did the actual crimes?

Then, as an alternative, there is always talk about the 25th Amendment. The question what “unable to discharge the powers and duties” of the presidential office might mean in practical terms has picked up a new interest, to say the least, in a time of an erratic leader who has not submitted to an independent psychiatric exam, and probably could not be dragged to the couch.

And here’s a phrase that conjures up a bunch of column-worthy questions all on its own: “President Pence.”

May you live in interesting times, goes the Chinese curse. Sure enough, interesting times can curse a columnist through sheer overload.

Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at

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