Final Impeachment Post

The impeachment of President Trump is about to come to a rapid and unspectacular close.  As previously noted, it has been a foregone conclusion that the Republican Senate is not going to remove a sitting Republican president without indefensible criminal activity.  However, the process chosen by the Democrats has been short-sighted and self defeating.  Victory: Trump.

Democratic Mistakes:

For the record, here are the mistakes made by the Democrats, and the likely ramifications.

First, the Democrats should have made a case for Bribery, which is a crime named in the Constitution as impeachable.  The case would have been at least as strong as Article 1, Abuse of Power, and would have eliminated a prime Republican defense/debating point about high crimes and misdemeanors. 

Second, the Democrats in the House needed to seek Judicial (Supreme Court) enforcement of their subpoena power.  It seems they were afraid of two things: that the trial would spill over into the Democratic primaries - with Iowa next week; and that the Republicans would in turn subpoena Joe Biden, Hunter Biden, and the whistleblower.  These fears are unfounded, and destructive to their case.  Article 2, Obstruction of Congress, can only be proven after the subpoena has been ordered in appeal at the Judiciary.  By side-stepping this, they undermined that article of impeachment.  Trump didn't just say "no," he made a legal claim that he had a right to say "no."  Only the courts can establish that legal argument's validity, and the House Democrats didn't pursue it. 

So, the Democrats missed the boat on both articles of impeachment, and unwittingly provided Republicans every inch of wiggle room they would need to make the Arlen Spector move from the Clinton impeachment: "not proven."  They made it easy on the Republicans, to their own detriment.

Now What:

The Ukraine issue has now been de-fanged politically for President Trump.  He will have been declared "not guilty" of the accusations, and as a result he will be largely immune in the fall on this topic.  Echoes of "Gore/Lieberman=Sore/Loserman" are sounding in the background for any Democrat who continues to harp on the Ukraine issue after acquittal.

Moreover, his exoneration will actually embolden the President to continue to do what he did: use foreign policy and resources of the United States to solicit and coerce their aid in his electoral politics. After all, if he "did nothing wrong," and was "fully exonerated," then it has been firmly established that it is fair game.  His defense team is clear: "even if" he did it [read: he did it], it is not impeachable.

Today, on the edge of the Senate vote to dismiss the articles of impeachment, Secretary of State Pompeo is traveling to the Ukraine to meet with President Volodymyr Zelensky.  The Senate vote will give the Secretary absolute permission to begin the conversation: "Now Mr. President, with that unpleasantness behind us, let's talk about what you can do to investigate Hunter Biden.  We would like everything you have or can find that will hurt Joe Biden this fall." 

President Trump and his team are being told, "Yes.  Yes you can absolutely pressure foreign leaders - using American resources - to harm your domestic political opponents.  Feel free to proceed in any obvious and open manner that you wish, because - 'even if' - you will have done nothing wrong."

The End.

This inevitable conclusion is very different than a legal accusation of bribery, and a thwarted subpoena ordered by the Supreme Court.  Neither of those occurred, and the weaker and quicker case will have only emboldened the President.  It is highly unlikely that they will successfully make hay on the topic with moderate voters in the Fall. 

Conclusion: Democratic incompetence has given the President an unmitigated victory, and legitimized what they were trying to accuse him of.

Jersey City, Domestic Terror, and Trump's Anti-Semitism Directive

Jersey City:  More Likely Domestic Terror 

Two heavily armed assailants yesterday murdered a plain clothes detective in Bay Cemetery, and then fled in a stolen U-Haul truck directly to a Kosher Market in Jersey City, where they murdered the 3 Orthodox Jews inside, baricaded themselves in, and proceeded to engage in a 4+ hour gun fight with police outside.  They were eventually killed, and their truck taken away by the bomb disposal units, with talk of "an incendiary device" inside.

Initial reports said it was "hooligans," and later reports talked about drug deals or gun deals gone bad.  Don't you believe it.  The odds that heavily armed group of people with a bomb in a truck would randomly select a kosher market as their plan went south are tiny.  The use of the word hooligans seems to indicate "not Muslim," or more likely "skinhead types."  The odds that this is a white supremacist group are extremely high, and we will need to sit tight.

Even today, we received a notice from local authorities (who have been wonderful in meeting with us in the past and are dedicated to our protection) that there is no evident "nexus to terrorism."  I fear that this is the stereotypical view of "terrorism" as "foreign" terrorism.  The initial indications certainly seem like a spoiled Domestic Terrorism incident, which one officer paid the ultimate price to stop.  

Ocham's Razor says that is the case.  A serious of random events with such highly armed suspects winding up in a kosher market is just too unlikely to accept as our primary theory.

Violent Extremists, Hate, or Domestic Terror?

The truth is that America, and our policing authorities at every level, have yet to fully embrace the concept that Anti-Semitic violence is terrorism, not mere hate.  Hate crimes and terrorism statutes often overlap, and the hate crime statutes are usually sufficient for enhanced penalties in the sentencing phase of the court case.  For that reason, District Attorneys will often eschew terrorism charges because they can get the bad guys in jail without them.  This is a terrible mistake.  

A violent extremist is one who holds extreme views and is willing to act upon them against property or persons, but without the terrorist components of overt intimidation for political ends.  Again, the FBI usage is problematic: Bjelopera points out that “According to DHS and the FBI, a HVE is ‘a person of any citizenship who has lived and/or operated primarily in the United States or its territories who advocates, is engaged in, or is preparing to engage in ideologically-motivated terrorist activities (including providing support to terrorism) in furtherance of political or social objectives promoted by a foreign terrorist organization, but is acting independently of direction by a foreign terrorist organization.’” (Bjelopera, 2013). 

According to the FBI, “A federal crime of terrorism is prosecutable under Title 18 U.S.C. Section 2331(a) or (b). It is best defined by the FBI in Title 18 U.S.C. Section 2331(5), “ domestic terrorism occurs  primarily within U.S. territorial jurisdiction, and domestic terrorism involves (A) ... acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping....” (Bjelopera, J.P. 2013, p.8).

I would hold that the differentiation must not be on the national origin of the ideology, which is impossible to really clarify, and instead should focus on the political or apolitical nature of the crime.

But Trump is Declaring Anti-Semitism a Federal Civil Right Crime:  Isn't that good?

Yes, but be careful.  President Trump is set to sign a directive today declaring Anti-Semitism, according to the definition of the IHRA: "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities."  Furthermore, he is directing all government agencies, for the purpose of civil rights legislation, to consider Jews as being a unique "nation."  While we in Judaism use this language all the time, to explain our multi-cultural unity in the face of broad religious diversity, it is a political trap.  If the Jews are a separate nation, protected in status as such, are they in fact fully American?  This is a dangerous road, best left alone.  Declaring Anti-Semitism a form of religious bias is sufficient under current law.

Federal Hate Crimes and Protection of Jews:

The development of federal hate crimes legislation is critical background to understand.  Federal hate crimes were first passed in the Violent Interference with Federally Protected Rights Act, 18 U.S.C. § 245 Act of 1968. This law made it illegal to use or threaten use of force to interfere with any lawfully protected activity, like voting, because of a person’s race color religion or national origin. Attending a house of worship is also a protected activity under the constitution. Entering a kosher supermarket would not exactly fall under that statute.

Hate crimes against property have also developed over time. Congress passed legislation prohibiting bias in housing in 1968, in the Criminal Interference with Right to Fair Housing, 42 U.S.C. § 247. President Trump was charged with breaking that statute in 1973 by the Justice Department.  In 1996, the Damage to Religious Property, Church Arson Prevention Act, 18 U.S.C. § 247 asserted federal protections for racial and ethnically associated religious buildings, religious buildings that engage in interstate commerce, and the protected the free expression of religion against hate crimes explicitly. 

These separate acts of Congress all were united and expanded under the 2009 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which both consolidated and expanded federal hate crimes statutes.  Physical harm, attempted physical harm, and use of a weapon were specifically named, despite any context of the victim’s actions, or the nature of the building in question. Also, in addition to affirming race, ethnicity, religion and national origin as protected categories from hate violence, gender, sexual orientation, disability and gender identity were added to the list.  Finally, the words “actual or perceived” were included when describing the accused’s state of mind and bias towards the victim.  

It is important to note that every level of federal hate crimes legislation has combined to protect any Jewish person by ethnicity or religion, as well as their religious property and gathering places from any form of violence, intimidation, attempted violence, interference or prejudice against real estate rentals.  Disrupting the free expression of Jewish religious practice, as a result of bias, is itself a prosecutable offense under these combined federal statutes. 

The State of New Jersey has further expanded local legislation to include specific sanctions against bias and intimidation. Under the 2013 Revised New Jersey Statutes, Section 2C 16:1, bias intimidation is the act, attempt to act, conspiracy or threat to act in a manner that would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (New Jersey Revised Statutes, 2013).  The importance of this legislation is that causing the victim to perceive bias is sufficient, and an actual bias to persecute the victim is not a necessary condition of the statute.

The State of New Jersey has further expanded local legislation to include specific sanctions against bias and intimidation. Under the 2013 Revised New Jersey Statutes, Section 2C 16:1, bias intimidation is the act, attempt to act, conspiracy or threat to act in a manner that would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (New Jersey Revised Statutes, 2013).  The importance of this legislation is that causing the victim to perceive bias is sufficient, and an actual bias to persecute the victim is not a necessary condition of the statute.

So, yes, violent anti-semitism is terrorism and must be prosecuted as such. And yes, violent anti-semitism is also a bias crime and must be prosecuted as such. But no, this is not inherently due to the status of Jews as a nation, but rather our religious identity. In either case our civil rights are protected, and one leads to Anti-Semitic views of Jews in America as "other," while the other protects us as "us."

You decide.