Category Archives: Senate

The Four C’s Of The Impeachment Sham — Constitution, Corruption, Comity & Coup (by Wolf Howling)

The House is considering three articles of Impeachment.  The Constitution is at issue in questions of Obstruction of Justice, Contempt of Congress and the form of the Senate Trial.  Comity and Corruption are at issue as to the Bidens and Abuse of Power.  And is this is an unlawful attempted coup?

The Constitution

The House is considering three Articles of Impeachment, one of which is expected to be for contempt of Congress.  The House claims that Donald Trump refused to honor lawful subpoenas for testimony and documents as pertains to the Ukraine. Was Trump within his rights to do so?  That is wholly a Constitutional question.  It is also closely related in at least one relevant part to a likely Second Article of Impeachment, namely Obstruction of Justice as to the Russian Hoax inquiry.

The only vote the House of Representatives has held to authorize an impeachment inquiry of Donald Trump was defeated overwhelmingly in January, 2017.  In response to the Ukraine IC IG matter, Nancy Pelosi, as Speaker, unilaterally declared an “impeachment inquiry” on September 24, 2019, and the House immediately began issuing subpoenas for witnesses and documents.  As to the latest vote held a week ago to formalize the procedures being used in the ongoing Star Chamber, Speaker Nancy Pelosi was adamant that the Resolution was not an authorization of an “impeachment inquiry.

Can anything less than a vote by the entire House of Representatives to authorize an “impeachment inquiry” be considered Constitutionally valid?  As I’ve discussed before, this is far from mere form.  If the House of Representatives approves a resolution for an impeachment inquiry, the House gains a power that it, by the explicit terms of the Constitution, does not otherwise possess — the judicial power to enforce subpoenas and requests for documents on matters outside its Art. I, Sec. 8 enumerated powers.  Without that power, the White House was acting lawfully when it refused to cooperate.  Tellingly, the House, rather than take those subpoenas to a Court to enforce them — and risk having a Court declare their proceeding unconstitutional — appears to be simply rolling all but one of their refused “subpoenas” into an contempt of Congress charge.

Then there is Part II of the Mueller Report.  We can expect the House to adopt Part II virtually in toto as an obstruction of justice charge.  There is a twist on this, however, and it is where this overlaps with the Contempt of Congress charge.  Without the judicial power of an impeachment inquiry, the House has no power to subpoena the Grand Jury testimony that Mueller referenced in his report.  The House subpoenaed the Department of Justice for that information and got the matter heard before an Obama judge (yes, John Roberts, there are progressive judges who rule by ideology, not the law) who ruled that the House was authorized to receive the material — and thus that their current “impeachment inquiry” was constitutionally sufficient.  The White House made an emergency appeal to the D.C. Circuit Court, which granted a stay, and the matter is now to be heard on November 12 before the D.C. Circuit. If the D.C. Circuit affirms the lower court’s ruling, the Trump administration will assuredly bring it to the Supreme Court, but there is no guarantee that the Supreme Court will take up the case.

All of this brings up a huge, core Constitutional issue:  Which branch of government has the power to determine the meaning of the Constitution — specifically in this case, when the question is whether the House may claim judicial powers without a vote of the House of Representatives to authorize an impeachment inquiry? There is no doubt that Articles of Impeachment (other than Contempt of Congress) that the House votes upon would be facially constitutional.  So this question applies only to whether the President may be validly held in contempt of Congress for failing to cooperate with an impeachment inquiry that was never authorized by a vote of the full House of Representatives.

The Judicial Branch long ago claimed for itself the power to definitively interpret the Constitution, but that right to do so appears nowhere in the text of the Constitution.  Can the Senate summarily dispense with any claim for Obstruction of Justice as to this “impeachment inquiry” because the Senators believe that the House acted “unconstitutionally?”  Can the Senate do so in the face of a D.C. Circuit Court opinion to the contrary?  Could the Senate do so in the face of a Supreme Court refusal to hear an appeal from the D.C. Circuit?  And lastly, could the Senate do so even if the Supreme Court hears an appeal and concludes that the obscene House Star Chamber proceeding meets the standards for constitutionality?  Those are all valid questions that I believe should be answered in the affirmative, but that could have long term ramifications for how our nation operates.

A second Constitutional question that touches on this and all of the Articles of Impeachment concerns whether Donald Trump will be afforded the same due process rights at trial (rules of evidence, right to bring definitive motions, etc.) that are afforded all Americans in court?  As Supreme Court Justice Story said, in 1833 when remarking on impeachment:

It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes.

Under current Senate Rules, the President does not explicitly have those protections.  Under the modifications suggested here, he would gain them.  Assuming that the Senate does adopt those changes then before trial begins President Trump should move to dismiss Contempt of Congress Charges for failing to state a legal claim — i.e., the House did not vote to authorize an impeachment inquiry, and thus the President did not obstruct a lawful process.  As to the obstruction of justice charge, President Trump should make a motion to dismiss the claim on the grounds that, even assuming all of the facts alleged in the Mueller Report to be true, it does not as a matter of law show a violation of the law or a political offense for which impeachment is warranted.  President Trump committed no underlying crime.  President Trump substantially complied with the investigation and he committed no act that resulted in the investigation being hindered.

Corruption & Comity

A third Article of Impeachment, according to Breitbart, will be for Abuse of Power.  The House’s Star Chamber proceeding is likely to result in a claim that President Trump abused his power by withholding aid from Ukraine subject to them investigating Joe and Hunter Biden for corrupt practices.

This is yet another Article that should be dealt with on a motion to dismiss.  The President’s practice and authority to negotiate with foreign countries for the aid they may receive from America is a well-established power of the Presidency, one that has been exercised by numerous other Presidents.  Thus negotiating foreign aid with the Ukraine cannot itself, be grounds for impeachment.  It is axiomatic that, to again quote Justice Story, impeachment may not be used tomake that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.  And in fact, the aid was ultimately released in full to the Ukraine in September, 2019, so there is no Constitutional concern with Congress’s power of the purse, nor any legal concern with the Impoundment Control Act of 1974.

That leads to the next question, whether what Trump was negotiating for — the facts surrounding Joe and Hunter Biden in the Ukraine and whether it involved corruption — was an improper purpose.  (It should be noted that Trump never in the transcript explicitly said that Ukraine’s receiving the money hinged on looking into the Biden matter. Indeed, it’s a stretch even to read into the transcript his having said such a thing implicitly.) As a textual matter, Article II § 3 of the Constitution requires the President to “take care that the laws be faithfully executed.”  So when the President looks into possible legal violations, he is acting in fulfillment of his Constitutional duties.

That leaves the last question: Did President Trump have reasonable grounds to suspect that Joe Biden violated federal rules of ethics, and perhaps American laws, regarding corrupt practices?  That is a factual matter. Trump does not need to show actual guilt.  But he needs to be able to show that, based on the facts as he knew them, a reasonable person would suspect that there was enough evidence of corruption that further investigation was warranted.

As a threshold matter, the Joe and Hunter show went far beyond Ukraine.  It was both foreign and domestic.  As to the former, when Daddy became Vice President and was given control of foreign affairs in certain countries,  Hunter Biden became Joe Biden’s little lamb.  With apologies to Sarah Hale and a hat tip to the poetess Bookworm:

Joe Biden had a little Hunter,
That filled its nose with snow,
And everywhere Joe Biden went
Hunter was sure to go;
He followed Joe to Ukraine,
Romania & China too;
He sold his daddy’s name there,
But saying so sparked a coup.

Hunter Biden’s escapades are well documented in the Ukraine, Iraq, China and Romania, for we know that he followed his father into those countries (sometimes flying into them with his father on Air Force Two) and immediately struck lucrative deals with corrupt politicians or, in the case of China, the government itself.  Standing alone, these undisputed facts stink to high heaven.  The mere appearance of corruption is an ethical problem for Joe Biden.  It becomes a legal problem for Joe Biden if he used his position as Vice President to further his son’s enrichment or to protect him from investigation. And to be clear, based on the facts as we know them, if Trump and Trump’s children had done what Joe and Hunter Biden did, the call to impeach and jail him would be deafening.

When it comes to Ukraine, we know Hunter Biden was hired to sit on the Board of Bursima, a Ukrainian energy company owned by a man who is a suspect in billions of dollars of government corruption.  We know that Hunter Biden was not qualified for such a seat beyond his familial relationship to Joe Biden.  We know that people associated with Bursima then dropped Hunter Biden’s name to lobby the State Dept. in order to quash the corruption probes targeting their client.  We know that at least one American official raised this as a problem to Biden’s office.  And we know . . .

It is in fact an open question, not yet definitively answered, whether the prosecutor whom Joe brags about getting fired had an active corruption investigation into Bursima — and perhaps Hunter Biden as well.  That was the question Trump seemed to be asking the President of Ukraine to find an answer to in his 25 July phone call.  If so, there is more to investigate, such as what did Joe Biden know and when did he know it.

But according to Democrats, it is an abuse of power even to ask those questions.  They can go pound sand.  No one is above the law, not even a Democrat candidate for office.  The only thing Trump asked for is information from an investigation.  Was that pretextual or warranted?  The first might arguably be grounds for impeachment, the second cannot be.  Thus the only factual issue to determine whether to proceed to a full impeachment trial on abuse of power grounds is whether Trump was justified in seeking an investigation of Biden’s seemingly corrupt dealings.

Bottom line, we need to hear from Joe Biden and Hunter Biden, under oath at any Senate trial, to determine whether there was sufficient appearance of corruption for a reasonable person in Trump’s shoes to investigate.  Indeed, the rule changes I suggested for the Senate’s impeachment trial are in anticipation of precisely that reality.

Democrats are going nuts over that issue.  This from the Daily Beast, warning that “comity” in the Senate would be irreparably damaged by forcing the Bidens to testify:

Senate Democrats issued stark warnings on Wednesday that Republicans would severely damage the institution of Congress if they acquiesced to a push from Trump allies to haul former Vice President Joe Biden and his son Hunter for testimony about their actions in Ukraine.

A top Biden ally, Sen. Chris Coons (D-DE), told The Daily Beast that calling the 2020 presidential contender—who served for 35 years in the Senate—and his son for testimony “would be literally rolling a grenade down the aisle of the Senate” that would have “lasting consequences” on the upper chamber’s ability to work together.

“Look, Joe Biden is well known, widely respected, and frankly beloved by many in the Senate on both sides of the aisle,” said Coons. “The impeachment process is already disruptive enough. I think we should be approaching it with seriousness, not by entertaining conspiracy theories that are utterly unfounded. And I think it would be a very unfortunate move.”

Right.  As if the left overturning an election and pushing us to the brink of a second civil war over the proposition that they are above the law while the rest of us are below it is not exponentially beyond concerns of “comity” in the Senate.  Truly, screw these people.

Coup

And finally, here’s a question to pick up after what promises to be a failed impeachment attempt.  Mark Zaid, attorney for the whistle blower who orchestrated this Ukraine madness, tweeted in 2017:

#coup has started. First of many steps. #rebellion. #impeachment will follow ultimately. #lawyers https://t.co/FiNBQo6v0S

— Mark S. Zaid (@MarkSZaidEsq) January 31, 2017

Zaid has since claimed that what he meant only a “legal” coup. There is no such thing. A coup is, by definition, an “illegal seizure of power from a government.” Now, if what Mr. Zaid had in mind was an unlawful abuse of the laws of this nation to effect a coup . . . that is still not legal. It is an act of sedition punishable at law.

We certainly now have evidence of Mr. Zaid’s state of mind. We have reason to suspect that his client was likely previously involved in the leak of classified information to the press in order to damage President Trump and may have spied on Trump on behalf of the FBI, both illegal acts.  Then we have long standing ties between the whistle blower and Adam Schiff’s staff and we have Adam Schiff’s own statement that they coordinated filing a whistle blower complaint.  Lastly, we have a grossly legally deficient whistle blower complaint that should never have been filed as such, and certainly never should have been addressed to Congress as a finding of urgent concern.  The IC IG did not conduct due dillegence in his investigation.

Now, that could all mean nothing.  Or, it could mean that certain people were conspiring to effect a bloodless coup.  There is enough here to warrant an investigation to determine the truth.  And prosecution would be warranted if what we discover is in fact a seditious conspiracy rather than a series of simple errors.  That would in fact be an unlawful coup.

The post The Four C’s Of The Impeachment Sham — Constitution, Corruption, Comity & Coup (by Wolf Howling) appeared first on Watcher of Weasels.

Part I: The faux grounds for Trump’s impeachment and his perfect defenses

The Dem’s have no statutory basis to demand Trump’s impeachment — and Trump has valid defenses to charges that his Ukraine dealings were an abuse of power.

This will be a two part post.  Part I deals with the law relating to impeachment.  Part II will deal with how the Senate should handle the trial of any Articles of Impeachment that come out of the House’s Star Chamber impeachment inquiry.

Introduction

Let’s assume for argument’s sake that the Democrats running the House’s Star Chamber impeachment inquiry do in fact come up with Articles of Impeachment.  What will they be?  And will the President have any affirmative defenses?

No less a legal and historical scholar than Maxine Waters claimed in 2017:

Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.

If true, that would leave the President with no defense other than that the Democrats are wrong on the facts.  Thankfully, Waters is  wrong.  To the contrary, the parameters for impeachment are defined at law and, because of that, the Democrats face insurmountable obstacles in impeaching Donald Trump for any and all acts related to his July 25 phone call with President Zelenksyy of Ukraine.

First, the House cannot validly impeach Trump for using the same powers other presidents traditionally wielded. Thus, if it has been custom and practice for presidents to negotiate using foreign aid as a tool, then Trump’s doing so is similarly beyond a valid impeachment charge.

Second, the House cannot validly impeach Trump for asking a foreign power to aid him in the legitimate exercise of his constitutional authority. Leaving aside whether Trump might personally benefit from the investigation, no American citizen (even, theoretically, Hillary Clinton) is above the law. The fact that an election looms does not change that fact. In other words, Democrats cannot avoid criminal culpability by insisting that investigations are illegal as an election draws near.

The Law of Impeachment

The Constitution, Article II, § 6, states that impeachment is a remedy that can be used to remove “civil officers” for “treason, bribery, or other high crimes and misdemeanors.” The Founders, writing a Constitution and not a hornbook, did not further define “high crimes and misdemeanors,” because they did not need to define it for it was a phrase well defined in British common law of the era.

Note: For those unfamiliar with the phrase, “common law” is nothing more than “judge made law,” as opposed to legislatively-created statutes. Past judicial decisions are looked to as for future decisions, a practice that, in 18th Century Britain, created most of the “law of the land” and defined many rights vested in British citizens.  Much of our Constitutional provisions and our rights as Americans come out of British law as it existed in 1787, and the “common law” is still an element of law in Britain and the United States today.

When the Founders relied upon recognized “common law” principles related to impeachment, they looked to the 500 years of British judicial history before 1787 (See John Hatsell, Precedents and Proceedings In The House of Commons, Vol. IV (Impeachment) (1796)).  It is that body of common law that defines “impeachment” as the term is used in the U.S. Constitution.  In his seminal study of the Constitution, Commentaries on the Constitution, 3 Volumes, (1833), Supreme Court Justice Joseph Story examined impeachment in Vol. II (§§ 794-96). He opened his examination by acknowledging the role common law played in understanding the doctrine:

The only practical question is, what are to be deemed high crimes and misdemeanours? Now, neither the constitution, nor any statute of the United States has in any manner defined any crimes, except treason and bribery, to be high crimes and misdemeanours, and as such impeachable. In what manner, then, are they to be ascertained?

After dispensing with commission of crimes in office as an obvious grounds for impeachment, Story addressed “political” offenses as grounds for impeachment, as well as the limitation upon those offenses:

. . . [T]here are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it. . . . Resort, then, must be had either to parliamentary practice, and the common law, in order to ascertain, what are high crimes and misdemeanors; or the whole subject must be left to the arbitrary discretion of the senate, for the time being.

The latter is so incompatible with the genius of our institutions, that no lawyer or statesman would be inclined to countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.  [Emphasis added]  The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties.

(At the bottom of this post, you will find a handy-dandy poster reflecting this principle, which you can share with friends on social media.)

Story then lists a wide range of offenses for which officials were impeached in Britain since the 14th century. almost all involving neglect, oppression, or exercise of arbitrary power.  Thus, contrary to what Maxine Waters claims, there are limitations on what constitute impeachable offenses. The official charged must have deviated from a historically established pattern and practice.  Democrats cannot validly impeach the President for duly exercising the powers of his office, nor for reasonably acting to advance malfeasors’ punishment for breaking the laws of the land.  Indeed, the President is bound by his office to enforce the laws of this nation.

More recently, Alan Dershowitz has also weighed in on what can legitimately constitute a charge of “high crimes and misdemeanors.”  His view is more restrictive than Story’s, but the two agree that there are outer boundaries and that simple political offenses or, as Dershowitz frames it in the language of Madison, “maladministration,” do not constitute “high crimes and misdemeanors.

There is a debate among students of the constitution over the intended meaning of “high crimes and misdemeanors.” Some believe that these words encompass non-criminal behavior. Others, I among them, interpret these words more literally, requiring at the least criminal-like behavior, if not the actual violation of a criminal statute.

What is not debatable is that “maladministration” is an impermissible ground for impeachment. Why is that not debatable? Because it was already debated and explicitly rejected by the framers at the constitutional convention. James Madison, the father of our Constitution, opposed such open-ended criteria, lest they make the tenure of the president subject to the political will of Congress. Such criteria would turn our republic into a parliamentary democracy in which the leader — the prime minister — is subject to removal by a simple vote of no confidence by a majority of legislators. Instead, the framers demanded the more specific criminal-like criteria ultimately adopted by the convention and the states.

Of course, since 1789, it is U.S. History that defines impeachment in our country.  Notably, in the three past instances in which the House has impeached a president, each has been for an actual crime committed by the President.  The House impeached Andrew Johnson for violating a law of dubious constitutionality when he removed the Secretary of War. The Senate refused to convict.  The House impeached Bill Clinton when he committed a crime in a civil case by perjuring himself when asked about his having had sex with a White House intern. The Senate refused to convict.  Lastly, the House voted to investigate Richard Nixon, when he was an accessory after the fact to the criminal Watergate Hotel break-in. Nixon resigned.

The bottom line is that there are limitations on what grounds exist for impeaching a president, that a president cannot be impeached for engaging in a historically established pattern and practice, and that past presidential impeachments have revolved around criminal acts. So what have the Democrats got?

The possible bases for the Democrats’ Articles of Impeachment

I. Statutory bases for impeachment

When trying to predict the Democrats’ future actions, only three possible laws or legal conflicts come to mind — that Trump violated campaign finance laws, that he obstructed justice, and/or that he interfered with Congress’s power of the purse. As set forth below, however, none of those are applicable.

A.  Campaign Finance Law

The Whistle Blower asserted that Trump’s July 25 phone call, in which he sought information about the 2016 Russian hoax and potential corruption by Joe and Hunter Biden, broke two laws relating to election campaigns.  He cited 52 U.S.C. § 30121, which makes it illegal to accept any “contribution or donation of money or other thing of value” from a foreign national.  But no court has ever interpreted the term “other thing of value” to include mere information.  Even the highly partisan Mueller team, when explaining their decision not to prosecute Trump Jr.’s meeting at Trump Tower with Russians for the express purpose of obtaining facts detrimental to Hillary Clinton, stated at Vol. I, p. 187:

[N]o judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts.

B.  Obstruction of Justice

The House may go so far as to claim that Trump obstructed justice by refusing to cooperate with the House’s “impeachment inquiry” regarding the Ukraine matter.  This will not fly.

The House doesn’t normally have judicial power for the Constitution, at Article III, explicitly provides that the “judicial power” resides in the Courts.  The House can assume “judicial power” for a limited period of time only if and when the House of Representatives authorizes it.  Trump maintains that the House, which has repeatedly voted not to open impeachment inquiries against him, is operating unlawfully and his administration has no duty to comply.

Importantly, even as Trump has refused to respond to subpoenas, the House has assiduously avoided testing its subpoenas in Court.  Law professor Alan Dershowitz dealt with this issue in a recent article at Gatestone Institute, Impeachers Searching For New Crimes:

This brings us to President Trump’s directive with regard to the impeachment investigation. Under our constitutional system of separation of powers, Congress may not compel the Executive Branch to cooperate with an impeachment investigation absent court orders. Conflicts between the Legislative and Executive Branches are resolved by the Judicial Branch, not by the unilateral dictate of a handful of partisan legislators. It is neither a crime nor an impeachable offense for the president to demand that Congress seek court orders to enforce their demands. Claims of executive and other privileges should be resolved by the Judicial Branch, not by calls for impeachment.

C.  The Withholding of Aid

Aid for Ukraine was part of Public Law 116-6, which Trump signed on February 15, 2019.  Nothing in the law states specifically when the funds must be released (just as there was none in the 2016 law), with the only proviso being that the administration disburse before the fiscal year in question ends.* When it comes to Trump and aid to Ukraine, his administration transferred or otherwise made the 2019 funds available to Ukraine by September 10, 2019, well before the end of the fiscal year.

One can argue whether any president has inherent power to withhold aid permanently from a foreign country once Congress has authorized the money — something President George H.W. Bush did when he unilaterally cancelled aid appropriated for Yemen in 1991 — but that is not a question applicable to this situation.  Moreover, as David Rivkin points out at WSJ and in his blog, “Congress attempted to curtail this power [i.e., the President’s power over foreign aid] with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.”  Thus, nothing President Trump did conflicted with Congress’s Constitutional power of the purse.

II.  Non-statutory basis for impeachment

Leaving the law behind, there seems to be a wide range of possible grounds for Democrats to impeach Trump (GrabieNews has so far compiled a list of 95 bases), almost all of which are ultimately nothing more than “orange man bad and we disagree with his policies.” That said, the only one that would pass the laugh test would be a charge that the President abused his power by conditioning foreign aid to Ukraine on opening investigations relating to the Russia hoax and to Joe Biden, a 2020 candidate for President.  This is the “quid pro quo” that will almost surely be in any Articles of Impeachment. Passing the laugh test, though, so that the media can relay it to a credulous public with a straight face, still does not make it a valid impeachment charge.

There are multiple problems with this quid pro quo argument, the first being that presidents have primary authority over foreign policy.  Historically, presidents have regularly used foreign aid as leverage when negotiating with foreign countries.  As David Rivkin explained:

More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities.

Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.

Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam. The General Accounting Office (now called the Government Accountability Office) concluded that this constituted “quid pro quo assistance.” In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counterterrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.

So, all things being equal, Congress has no right to curtail the Executive’s historic powers. Again, to reiterate what Story said, Congress may not “make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.” Moreover, under the statute as written, Trump had authority over the timing of aid to the Ukraine at least through the end of the fiscal year.

That being the case, we are left with one remaining question: Did Trump use his legitimate power towards an end that was itself an abuse of power?

The Democrats desperately want to answer that question affirmatively. They insist that asking for any investigative assistance into crimes that may have been committed in the 2016 Russia Hoax and any crimes committed by Joe Biden are so beyond the pale as to justify impeachment and overturn an election.  Their problem is that nothing that Trump did is an abuse of the power because the Constitution imposes upon the president the obligation to “take care that the laws be faithfully executed.”  Indeed, it is ludicrous to suggest to the contrary, at least unless we are to amend the Constitution, explicitly or implicitly, to hold that progressives are above the law.  We will be in a shooting civil war before that happens, whether in fact or in deed.

Consequently, as Rivkin further states at the WSJ and in his blog,

Investigating Americans or Ukrainians who might have violated domestic or foreign law—and seeking the assistance of other nations with such probes, pursuant to mutual legal-assistance treaties—cannot form a legitimate basis for impeachment of a president.

Or as Andrew McCarthy states:

It is common for presidents to ask their foreign counterparts to assist Justice Department investigations. House Democrats will not acknowledge this because they seek to delegitimize the Barr/Durham probe as a Trump 2020 campaign initiative; but it is not.

The sole factual issue for this defense will be whether Trump had valid reason to request Ukraine’s assistance in investigation the Russia hoax and whether Trump had a reasonable basis to inquire further into Joe Biden’s possible criminal acts, specifically whether he violated 15 U.S.C. § 78dd-3 (Prohibited foreign trade practices by persons other than issuers or domestic concerns).

As to the former, the mere fact that the DOJ is reviewing the origins of the worst political scandal in our nation’s history, namely the attempted coup that was the Russian Hoax (let alone that it is now a criminal investigation), was a valid justification for Trump’s request for assistance from the Ukraine.  Moreover, President Trump had a predicate — i.e., a reasonable indication to believe that a crime may have been committed — to ask for assistance investigating whether, when Joe Biden demanded that the Ukrainian Chief Prosecutor be fired as a non-negotiable condition for receiving American aid, the Prosecutor was investigating Hunter Biden directly or indirectly through his Burisma ties.  Cry as the progressives might, this is a legitimate issue, one raised at the time internally during the Obama administration, one that Joe Biden proudly boasted about and, nevertheless, one that the Obama administration never investigated.

I can think of no other grounds for impeachment, though I am sure Schiff & Co. will have some inventive surprises.  In the next post, I will deal with how the trial in the Senate should proceed, given that the House has denied any due process rights, including the right to be represented at the hearings, to the President.  There are more than ample ways — fully Constitutional — in which the Senate can vindicate the rights of the President, hold a fair trial, and make the House Democrats rue their sins in the process.

____________________

*The law in 2016, which has the identical fiscal year proviso, was the law that applied when Biden was the Vice President. Thus, his threat to withhold the money did not violate the law. It was his threat to withhold the money to protect his son’s dubious business practices that raises eyebrows.

Impeachment

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I Think the Senate is Handling this SCOTUS Thing all WRONG…

The sides seem dug in.  Determined.  No one will budge.  The President recommends a new Supreme Court Justice to replace (no one of course replaces this justice) Justice Scalia.  Merrick Garland.  A good solid judge but probably more liberal than Scalia.

The GOP controlled Senate (elections do matter) say not even a hearing.  No vote for sure.  So the MSN blames:  The Senators of course.

Now the argument ought to be – in opposition to the Biden rule – this is a game changer for the Court and it ought to await the new President.  The people decide.

BUT, I would have hearings.  Ask tough questions.  Ask about great Scalia cases and dissents.  Make it clear to the American people how wonderful the late justice was.  And Judge Garland will have to either try to agree with Scalia or say no I am not a strict constructionist or a textual judicial conservative.  Now senators need to be ready to confront Judge Garland on inconsistencies between Scalia’s judicial philosophy and his.

THEN and only THEN reject the judge because he will almost for sure show he is no Scalia.  And then the senators ought to propose more appropriate names to the President.  Ted Cruz would be a good start.

I do not expect WashPo or NYT to agree but it looks fair and it is fair:  Give the judge a chance.  But I am certain Judge Garland is no Scalia.  He will fail the test.  Then reject him.  But the “no hearings, no vote” strategy is a loser with people.  the voters want the Senate to be fair.


Article written by: Elwood "Sandy" Sanders

Trump Bashing Cruz Supporters Can Dish It Out, but They Can’t Take It

While Ted Cruz has been mostly silent on criticism of Donald Trump, the same cannot be said about his supporters. There are a lot of people bashing Trump these days but none more vociferous than the Cruzers. And for the record, I am not blaming Cruz for the actions of his supporters.

And the Trump bashers seem to fall into 3 categories.

  • Ted Cruz supporters who are politically knowledgeable, conservative and, unfortunately far too willing to use spin and outright falsehoods to knock Trump down in order to build Cruz up. Many of these are people with whom I share a basic conservative political philosophy and usually find we are on the same team, supporting the same candidate. And I have no doubt that we shall align behind a candidate in the near future. So some of these attacks on my blog, Twitter and Facebook have been rather vicious and vitriolic, and most fail to mention Cruz at all. It takes some effort to draw them out and know their motive for the bashing. And I have been on the receiving end of this behavior for months. It is disappointing to see many of my friends take this tactic to build up their candidate by tearing down another with false information. It is reminiscent of the tactic Eric Cantor used to paint Dave Brat as a Liberal College Professor. And those spreading that lie refused to listen to reason and truth.
  • The RINO Establishment GOP, the Mainstream Media, RINO Blogs and Democrats. This is also a knowledgeable group who are willing to spread lies and make stuff up in a desperate effort to hold onto power. And Trump threatens this power because he will not play by their rules. And they know that. These are people who really do not care about America, just power.
  • The last category are the low information voters. Unlike the first two groups, these people are not trying to manipulate opinion, they are just reacting to what they hear and accept it without question.

And I get the appeal of Ted Cruz. If Donald Trump were not in the race, Cruz is the only other candidate I would consider supporting. Now I will vote for the Republican Candidate, whomever that may be, perhaps holding my nose again, but I wouldn’t waste my time campaigning for or working for any of the others outside of Trump or Cruz.

And one of the hardest things to do in politics is to back a different candidate than some of the allies you have found on other campaigns. It has happened to me many times over the years and I always intend to “reset” things after an election. We all find different things in different candidates and need to respect one another’s decisions when backing a candidate and make sure we don’t totally burn bridges. We will need each other in the future.

My disdain, contempt and distrust of the Establishment GOP, the big money fat cats that own the establishment politicians and the ruling class elitists is complete and eternal. These people are indistinguishable from the Socialists and Communists in the Democrat party and Ryan’s omnibus bill is absolute proof that the establishment Republicans are no more trustworthy than the Democrats. We worked hard to give these bastards a majority in the House and the Senate and, as usual, our efforts are rewarded with betrayal. And every time we have been betrayed my distrust and ire grows and the American people feel the same, judging by the rise of the outsiders in the polls. Trump, Cruz, Ben Carson, Carly Fiorina are all manifestations of the traitorous nature of the Republican Establishment’s failure to live up to their promises. It also shows that the GOPe has lost the consent of the governed.

So when it comes down to picking a presidential candidate, I would say in addition to the 4 mentioned above, I would have to add Rand Paul as a possibility. So there were 5 possible candidates for someone looking for a non establishment “outsider” to pick from. Paul has been a horrible candidate and has never picked up steam. Carson and Fiorina have had their 15 minutes and were unable to get past the scrutiny.

Which leaves Trump and Cruz.

As I looked at these two candidates, Cruz has a very short history in the Senate, not unlike our current president. He has no executive experience and as I documented in a post yesterday Cruz offered an amendment to Rubio’s Gang of 8 Bill that would not grant a path to citizenship for illegals, but would provide them “green cards” so they could “come out of the shadows”. He claimed at the time that this was a good faith effort and a compromise that gave the Democrats what they publicly stated that they wanted. And now Cruz calls it a “poison pill” that was designed to show the hypocrisy of the Democrats. So either that is a lie, or he was not being truthful in 2013 about the amendment being a good faith effort. Not a lot was said about this until Donald Trump had the courage to be open and honest about the illegal alien problem. The American public has found Trump’s Politically Incorrect statements on illegal immigration to be what they were all thinking, but afraid to say.

Cruz supported TPA, the trade authority that gives Obama the authority to bypass the Senate on what are essentially treaties. Global Warming, Gun Control, who knows what else? Cruz was for this until public sentiment turned against it.

Cruz wife is a VP at Goldman Sachs. Big money corporations are the difference between big money RINO’s and Conservatives. Very scary money connection.

And I believe Cruz will face many, many legal challenges to be placed on the ballot, as I discussed in yesterday’s post linked above.

These are not B.S. claims, they are facts. We have very little to go on with the first term Senator, but I find these issues to be a pattern. And that is why I could not support Cruz.

And then there is Donald Trump.

I tell most people to disregard most of what you hear about Trump. It is spin, half truths and outright lies. Most of my friends write on Facebook or blog comments “How can you support Donald Trump because he supports …”. Fill in the blanks. And these type of statements are always taken completely out of context, mixed with other things Trump said, culled from 20 year old interviews and spun as if Donald Trump was a politician all his life. And it has been my experience that the Cruz supporters are the most prolific Trump bashers, at least with my statements and comments.

Just a few “for instances”. There are so many lies and distortions I could fill volumes.

Trump is Pro Choice. FALSE. Trump is pro life.

Trump is a Democrat. A Democrat plant. Best friends with Hillary. FALSE. Trump is a Republican. Where the confusion and half truths come in is that Trump was a businessman doing work in the deep blue Northeast. You donate to the people in charge. You mingle with the people in charge. You go to parties with those in charge and invite them to your parties. Schmoozing is the name of the game when you are a businessman. If Trump was a Republican Politician these things would be dis-qualifiers for me. But he did what he had to do to run a very successful business.

Trump is a bully. Trump is brash. Trump is outspoken. TRUE! Trump is a New Yorker. I spent a lot of time in New York in my life and I will admit the facade a lot of people living in The City adopt can be a put off. Loud. Braggadocios. Conceited. But if you think about it, all of these things are the opposite of Political Correctness. An acquired taste for sure. But I believe we need bold and loud to be heard above the spin, lies and deception. And does it work? Damn straight it does. The press hangs on every crude and outrageous statement. And all of these crude and outrageous statements are exactly what needs to be said and exactly what people are looking for. The normal flow for whatever “outrageous” statement Trump makes is:

  • The media reports the latest outrageous statement.
  • The media and the GOP sit around and talk about how this will be the one that finally sinks Trump
  • The people love the statement and cheer Trump for saying it.
  • Trump goes up in the polls.
  • His detractors sink because they are siding with political correctness.
  • His opponents finally adopt the same idea.

How many times we gotta do this before you get it?

Trump wants to shut down the internet. FALSE. Trump wants to control the Terrorists ability to use the internet to communicate and recruit.

Trump hates Muslims and wants to round them up and kill them and their families like Hitler. FALSE. These are two statements made at different times. Trump said let’s “pause” immigration from Muslim countries until we can get a handle on this. Pretty much an intelligent thing to do. Trump also said we need to stop worrying about collateral damage with airstrikes. These people use human shields, even their own family. The terrorists need to know if they kill us and our families, we will hunt them down, those that helped them and kill them. Right now, Obama is not giving the green light – often even buzzing ISIS convoys of oil carrying vehicles so the people will get out and run. They are selling oil for ISIS to fund terrorism. Blow them to Allah. Trump never proposed rounding up and indiscriminately killing Muslims here.

Trump will send blacks back to Africa. FALSE. And yes, I even heard this. I have no idea where this came from but I suspect it is something circulating on black radio. I would NEVER support someone with such a notion.

Trump is not a Conservative. Maybe. But then Eric Cantor always said he was a Conservative. He spoke eloquently of conservative principles and values. And the need for smaller government, lower taxes, bla, bla, bla.  So did John Boehner. And Mitch McConnell. In fact, pretty much all Republicans say this. And then they do the opposite. There are few exceptions to the fact that pretty much every Republican lies about being conservative. Dave Brat is one of those exceptions. And I do not know enough about Ted Cruz in his short time in the Senate to say he is not going to be the next Paul Ryan.

And I love the people that demand to know how Trump will build a wall, bring back jobs, kill ISIS and Make America Great Again.

Funny. No one asks Trump for his specific plans and details when he says he is going to build a great golden tower that will be the envy of the world. Or a hotel. Or golf course. They don’t ask. He lays down the vision and puts the right people in charge and it happens. No one doubts him. It happens.

So why doubt him on the wall, jobs, economy, etc.?

Many people try to look at things Trump said and did as a businessman and hang it around Trump’s neck as his current political policy. Trump could have eschewed any business dealings that were not 100% conservative, refused to use eminent domain and told Bill and Hillary to go to hell. But then he wouldn’t have a successful company. Someone else would have profited from the business he gave up. And he would probably be living an obscure life in a tri-level 4 bedroom in Hoboken.

So when you say Trump is not conservative, I don’t care. Neither are the rest of the Republicans once they get to DC.

When you say Trump supports this or does not support that, I don’t care.

We have been betrayed by the Republican Party time after time. I have reached the point that I do not believe most of them and don’t trust them either. So Trump supporters like me don’t worry about the minutia and litmus tests and playing those “gotcha” games of Trump said.

If Trump builds the wall and stops illegal immigration, brings back jobs that were sent overseas by our overly intrusive government rules and regulations, actually takes the fight to ISIS and other terrorist groups and understands that war is hell, then I will know America is turning around. When we make political correctness incorrect, I will know America is turning around.

I don’t give a rat’s butt at this point about eminent domain, 20 year old health care statements, donations to Democrats, spitting on the sidewalk or anything else. We are being over run by Terrorists and Illegals who likk us and take our jobs. They flaunt our laws and spit in our faves because we are weak. America is an exploited country. So to my Conservative friends who want to know why I support Trump and could care less about the minor stuff, it is the big stuff that is killing us.

Trump has brought up more major issues than all of the rest of the candidates combines.

Trump will be anything but business as usual. So while my conservative friends focus on their conservative checklist that will be tossed in the trash bin as soon as the swearing in is over, I am perfectly fine with Trump accomplishing the major tasks that has him sop far ahead of the pack. Once the country is safe and secure and prosperous, we can turn our attention to the Conservative Checklist.

And that is why Trump supporters are unwavering. We understand that while the rest of the candidates are fighting over insignificant issues and who supported amnesty and who didn’t, and counting angels on the head of a pin or pining for George Bush and apologizing to the Muslims who are killing us, Trump has his finger on the pulse of America. Jobs. Security. Prosperity.

So don’t believe most of what you hear about Trump. Look at the big picture.


Article written by: Tom White

Our Weasel Of The Week Nominees!

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It’s time once again for the Watcher’s Council’s ‘Weasel Of The Week’ nominations, where we pick our choices to compete for the award of the famed Golden Weasel to a public figure who particularly deserves to be slimed and mocked for his or her dastardly deeds during the week. Every Tuesday morning, tune in for the Weasel of the Week nominations!

Here are this weeks’ nominees….

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The Man Who Would Be President, Senator Rand Paul!

The Noisy Room : My nomination this week goes to Rand Paul:

Sen. Rand Paul on Tuesday said fellow Republican presidential candidate Ted. Cruz is “done for” in the Senate.

“Ted has chosen to make this really personal and chosen to call people dishonest in leadership and call them names, which really goes against the decorum and also against the rules of the Senate, and as a consequence, he can’t get anything done legislatively,” Paul told Fox News Radio. “He is pretty much done for and stifled and it’s really because of personal relationships, or lack of personal relationships, and it is a problem”. . .

“I approach things a little different, I am still just as hardcore in saying what we are doing, I just chose not to call people liars on the Senate floor and it’s just a matter of different perspectives on how best to get to the end result,” Paul said in the interview.

Paul backed McConnell’s 2014 re-election bid. Cruz had accused McConnell of lying to him about the way forward for the revival of the Export-Import Bank in the Senate.

Senator Ted Cruz attempted to offer an amendment to the must pass spending bill that would have halted the implementation of Obama’s Iran Deal and public funding to abortionists like Planned Parenthood… Cruz however wanted to make one last effort to put members of the Senate on the record, but GOP Senators were so scared of voting to strike funding for these Obama priorities that they opted to block Cruz from even receiving a vote. Cruz stood alone and did the right thing. No one backed him… no one. But he had the courage of his convictions and he stood.

For betraying a friend and a fellow Tea Party activist, Paul definitely has earned the Golden Weasel. For supporting the likes of Mitch McConnell and trying to publicly end Cruz’s political career, he should get it twice.

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President Barack Hussein Obama!

Puma By Design : My nominee for Weasel of the Week goes to Barack Hussein Obama who began politicizing the death of nine people killed at Umpqua Community College in Oregon last week before rigor mortis set in (no disrespected intended, just trying to make a point).

I suspect that Obama‘s speech last week was actually written months ago, locked away in a desk in the Oval Office along with a batch of executive orders on gun control that the White House claims is being prepared for Obama’s signature.

From Breitbart:

“It’s a high priority and will continue to be until we start to see more progress on this issue in this town,’ White House Press Secretary Josh Earnest told reporters today at the press briefing…

‘I can tell you that they’re not stumped, they’re continuing to review the law that’s on the books and continuing to consult with legal authorities but also others who may have ideas about what steps that can be taken to keep guns out of the hands of criminals,’ Earnest said…”

Obama’s been stewing like a petulant child since his 2013-failed attempt to overhaul the gun laws has been anxiously awaiting the perfect crisis to add another chapter to his legacy memoirs even though it means dancing on the graves of those killed by mentally unstable nut jobs nudged over the edge by several years of hateful conflict-ridden Marxist propaganda often espoused by Obama himself and his sock puppets in the mainstream media and streets of America.

Finally, we have Obama’s double standard about when to call for gun control. The image below puts it all in perspective.

Well, there it is. Check back Thursday to see which Weasel walks off with the statuette of shame!

Make sure to tune in every Monday for the Watcher’s Forum.

And remember, every Wednesday, the Council has its weekly contest with the members nominating two posts each, one written by themselves and one written by someone from outside the group for consideration by the whole Council. The votes are cast by the Council, and the results are posted on Friday morning.

It’s a weekly magazine of some of the best stuff written in the blogosphere, and you won’t want to miss it...or any of the other fantabulous Watcher’s Council content.

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Our Weasel Of The Week Nominees!


Article written by: Tom White

Reconsidering Trump 2016 AND Convention of States

Donald Trump?

When Donald Trump started making noises again that he was going to run for president, I laughed him off. Just a publicity stunt, he’ll never actually run.

Trump could never be a serious candidate, could he?

Besides, I have said many times that while on the surface it makes sense to have someone run the country with a proven business background like Trump, do we really want a guy in the White House that believes his word is the final answer? That he gets to make all of the decisions and will often “go it alone” with a phone and a pen? Isn’t that what we have in the White House now? A Dictator? Why would we want another one?

But as I look at the Republican betrayals all along the way, I know in my heart that I cannot trust them to do what they say. The only party that actually delivers on their promises is the Democrats. And if I were a Democrat, I would view Obama as the greatest deliverer of promises of all time.

The Republicans told us that if they only had the House they could stop Obama. They said the House holds the power of the purse. “We will de-fund Obamacare,” they told us.

So we gave them the House. And John Boehner has betrayed us at every opportunity. And lest the ground swell with opposition, he is punishing Republicans – our own party – for not voting as he tells them as he rewards Obama and the Democrats with more and more power.

We only control 1/2 of the Legislative Branch they told us. Where was the backbone they promised us if we would only deliver the Houes? Still made of jello we see.

“If only we had the Senate we could stop Obama,” they said.

And we gave them the Senate.

And once again we were betrayed. Obamatrade was only the latest fiasco that will haunt us forever. Another “giant sucking sound” of American jobs leaving the US – like NAFTA. But this one reportedly comes with the loss of American Sovereignty as a side dish.

And how are these new Republican controlled House and Senate Committees doing on the scandals committed by this Administration? We have committees promising to “get to the bottom” of every scandal and dirty deed Obama and his band of merry men have committed. And I can’t think of a single one that has been resolved.

Fast and Furious? The Veterans Administration? The IRS? Lois Lerner? Benghazi? EPA? Immigration? Nuclear Iran?

Not a DAMN THING has resulted in the years long investigations. Except for the fact that the Republicans have raised a lot of money pretending to be investigating these scandals and atrocities, nothing has come of any of it. And let’s toss in Obamacare.

There is not a single current or former elected Republican running for the Presidency that I feel I can trust, knowing their history. One of the biggest reasons is money. The path to the Presidency passes through the US Chamber of Commerce and Big Business on the Republican side and the Unions and the special interest hucksters on the Democrat’s side. And to be fair, the GOP has it’s own hucksters. Just not as many.

The only Republican I have the least bit of hope for is Ted Cruz. And I honestly don’t think he is electable. And now that Cruz voted for Obamatrade,  I know I can’t trust him if he were elected President. And the rest of the field ranges from as bad or worse than Obama all the way to slightly better than Obama.

And then there is The Donald.

Flamboyant, cocky, irritating at times, self righteous, know-it-all, and a bit tyrannical to work for I imagine. But you know what? Donald Trump is the only one of the field that I could imagine walking into the White House his first day and producing an Executive Order cancelling every single Obama Executive Order. On day one.

The others may talk about it, but they won’t do it. Even Ted Cruz.

And Trump is also the only one that I could imagine would ever tell Iran to go “F” themselves and promise to blow up every palace in that country if they don’t stop their nuclear bomb plans. And he’d probably do it, too. Not that I am in the mood for more war, mind you, but Iran is a rabid threat to us.

And I guarantee deportations and big fences will both become popular again under a President Trump.

I am not ready just yet to go all in for Trump. It is still early. But every single Republican Candidate except Donald Trump will be beholden to the US Chamber and Big Business. And that is why Mitch McConnell and John Boehner are the corrupt traitors that they are. Follow the money.

And Trump can tell them to kiss off. He has his own money.

He has his own money. And that, my friends, is what it all boils down to. With all his quirks and his eccentricities, he has his own money. And that has put him up there in my book above all the other candidates who will owe some really bad people if they get elected.

On A Convention of the States

I have been strongly opposed to a Convention of States as a means to fix our country. The slogan “Don’t change the Constitution, abide by it” is wise advice. Many of the problems I see us, as a nation, going through are a direct result of failing to follow the Constitution. Liberals have shredded it and ignored it.

But the actions of the Supreme Court these past few days have caused me to reconsider my position. I no longer fear the left coming in trashing our rights, because the Robert’s Court has already accomplished that. Finding “rights” to gay marriage, upholding Obamacare and outlawing proof of citizenship to vote have left that fear unfounded. We no longer have the right to free speech, the right of religious freedom and we have all become serfs under a totalitarian government. States have no rights that can’t be trumped by the Federal Government.

At this point, the only thing we have left is the Second Amendment and we all know that this judicially activist SCOTUS will eventually come for our guns.

My position against a COS was based on balancing the potential harm against the potential good. And the potential to do more harm than good won that equation. I had hope and faith that the Supreme Court would, ultimately, keep the Constitution intact. But they have abandoned that now.

So when I add an activist, out of control SCOTUS, the equation has a different outcome. I believe with such a wild card, a COS may be the only hope we have left to right the unconstitutional actions of this court.

And we already know we cannot count on the Republicans who now have the House and the Senate, an award that has yet to produce dividends. And with Boehner and McConnell in charge, it is unlikely that we will see anything Conservative from those bodies anytime in the near future.

So put me down as Leaning Trump and all in for a COS.

 


Article written by: Tom White