Thoughts on Iowa

by: john Harrison

Former President Trump is getting a lot of great press about his recent victory in the Iowa Caucus. However, all is not what it seems. Fifty years ago, on March 31, 1968, President Lyndon B. Johnson appeared on national television and announced that he was partially halting the U.S. bombing of Vietnam, and that he had decided not to seek his party’s nomination for president. LBJ had barely survived a surprisingly strong primary challenge from antiwar Sen. Eugene McCarthy in New Hampshire, who took 42 percent of the vote to LBJ’s 48 percent on March 12. So, while former President Trump won in Iowa by 51% and thereby bettered former President Johnson, it still means that in 2024, this year, this election, that at least 49% of Republicans, would prefer a different candidate, and it is only a little more than half of the well over 90% support that former President Trump received in the 2020 Iowa Caucus. It really ought not to have been taken as such good news for the former President’s current candidacy, but it has been.

I predict that Nikki Haley will “win” in New Hampshire. For a current, or former president to not to receive at least 75% of the vote in a party primary is disastrous. If a candidate cannot dominate his own party, while they may “win” the primary, they will lose the election. Simply stated, a candidate needs to have at least almost all of their Party’s vote to win. While former President Trump has an incredibly strong base in the Republican Party, it is also clear that even in probably the most conservative Republican Party primary state that he also has a growing part of the Republican Party that prefers another candidate, almost any candidate.

The truth is that the Iowa Caucus has not predicted a winning Republican Party candidate since at least 2000. There is a “fact checker” that says that this is not correct even for Republican candidates, but it is wrong. They seem to think that the Iowa Caucus predicted a winning Republican candidate because it predicted Trump in 2020, when he lost, even though it predicted Cruz in 2016, when Cruz lost. In the most accurate words I can think of, this is a profoundly stupid conclusion, incredibly stupid, just stupid. I think you get the idea.

I hope Nikki Haley wins in New Hampshire. I hope President Biden withdraws from the election. I am 77 years old, I want to vote “for” someone for President while I am alive, rather than voting against the other candidate. Can we make it happen?   

 ———#####———-

My book, Steel Rain, the Tet Offensive  is available on Amazon both as a paperback and on Kindle. It is a Five Star book with lots of reviews, many by others that were there as well. Please give it a look. See; Steel Rain, the Tet Offensive 1968

Recent Reviews of Steel Rain, the Tet Offensive:

“John Harrison does an eloquent job writing what it was like being in the infantry during the Vietnam war. I know, I was in the infantry in Vietnam. There is a statistic which states that only 1 out of 10 who served in Vietnam were in the infantry. All of us have been asked what that was like at one point since our return. It is an impossible question for most of us to answer in part much less in full. John Harrison manages to do this in his book, Steel Rain, the Tet Offensive. So, if you are inclined and wonder what it was like, or you want to tell someone else what you went through, buy this book. Show it to your friend, show it to your family. It tells your story. To, “LT” John Harrison- thank you Sir.Salute.”

“John Harrison’s book, Steel Rain, the Tet Offensive, is a series of short stories, told mostly in the first person, that weaves together the humor and violence that only a talented writer can accomplish. The result is a compelling book that is hard to put down. John’s words flow easily on the pages, making an easy read. I highly recommend this book to anyone that has been there and did that, or anyone wanting to know a personal record of one lucky Lieutenant in Vietnam and the people that made it possible for him to return home.
Dan Hertlein, helicopter mechanic with the 192nd AHC at LZ Betty 1968″

“John is the soldier speaking the truest story of Vietnam. I will confirm his action as I was in a different company same battalion, fighting the same battles.”

 

The New York Criminal Case Against Trump

by: John harrison

Initially, the 34 separate counts are already a bad indication for the New York State criminal case against former President Trump. Loading up the counts is what prosecutors do when they are not sure of their case; throw everything at the wall and hope in the end, something sticks. Except for it being former President Trump, I don’t believe any other prosecutor would have brought this case. It is not that the case cannot be won, rather it is that there are so many ways to lose it. So many ways to raise a defense, to raise reasonable doubt, even before trial. Prosecutors, mindful of their duty to prove their case beyond a reasonable doubt, usually require a criminal case to be more of a sure thing. No one, experienced in law, that I have seen so far has that opinion about this case.

The first problem is the statute of limitations on the underlying cause of action. It’s two years. There are several ways arguably to extend the statute of limitations, but the important word here is “arguably”. None of it is a sure thing and if the prosecutor loses on the statute of limitations, it’s all over unfortunately including only some of the shouting though.

The second problem is coupling the state felony charge to a federal charge in order to bootstrap the original state misdemeanor charge into the lowest felony charge allowed in New York State. I don’t believe that this has ever been done before. Simply stated, committing a federal felony in New York is only illegal under New York law is if it is also an existing state law crime as well. As a test case, it is a very creative theory, which also means that it is unlikely to prevail. The prosecutor is asking the judge to make new law in order to convict a former president. Judges don’t like to make new law, but they do now and then. Then the prosecutor must also convince the appellate courts that new law is both proper and needed in the case. That’s never easy either.

The third problem is that the expenses which are at issue in all 34 counts are at least arguably deductible as a legal expense. The Supreme Court of the United States in Commissioner v. Tellier, 383 U.S. 687 (1966), 1966-1 C.B. 32, held that legal expenses incurred by the taxpayer in the unsuccessful defense of a business-related criminal prosecution for violation of the fraud section of the Securities Act of 1933 and the mail fraud statute were deductible as ordinary and necessary business expenses under section 162(a) of the Code. In reaching this decision, the court relied on its position in United States v. Gilmore, 372 U.S. 39 (1963), 1963-1 C.B. 355, where it held that the origin and character of the claim with respect to which an expense is incurred, rather than its potential consequences on the fortunes of the taxpayer, is the controlling test of whether the expense is connected with the taxpayer’s trade or business within the meaning of section 162.

In Gilmore, the Supreme Court adopted the “origin of the claim” test to determine the deductibility of litigation expenses. According to the Supreme Court, “the origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense was “business’ or ‘personal.'” Id. at 49. In Gilmore, the taxpayer claimed his divorce litigation expenses were deductible since they were incurred to protect his controlling stock interest in his General Motors franchise from the community property claims of his wife. Id. at 41. The Court held, however, that since the wife’s claims originated entirely in the marital relationship and not from an income-producing activity, the expenses were personal and therefore not deductible. Id. at 51-52. In Trump’s case the claim arose well prior to the election, but a direct connection to the election is essential to the prosecutor’s case. 

In order to qualify for a deduction under section 162, the activities of the individual that gave rise to the expense must be substantial enough to constitute a trade or business. See, e.g., Graham v. Commissioner, 40 T.C. 14 (1963), rev’d on other issue, 326 F2d 878 (4th Cir. 1964). In Graham, the taxpayer attempted to deduct, under section 162, the amount paid in settlement of a suit against him based on his actions as a director of a corporation. During the tax year at issue in that case, the taxpayer was employed full time as the comptroller of Baltimore. Although the taxpayer was paid a salary as director and attended all board meetings, the Tax Court concluded that his actions as a director were insufficient to constitute a trade or business. Graham, supra, at 21. “On appeal, the forth circuit held, as we conclude below, that the amount paid was deductible under section 212.”

Boiled down, this means that an amount paid in settlement of a claim and the legal fees to defend against the claim are both properly described as “legal expenses”. Clearly protecting the “Trump brand” is at least arguably a valid business expense. While this has not yet been raised as a defense as far as I know, I expect that it will be soon. This would be in addition to Trump’s personal interest in defending his marriage to Melania, and in neither case does it make any legal difference whether the charges are true or not. Even a known Lothario, may have a protectable marital interest and business interest in their reputation, however tattered it may be.

With this many ways to lose the case, reasonable doubt of success begins to arise even if the case did not require also proving criminal motivation. Proving motivation is always difficult, particularly since the law requires the beginning assumption that the defendant intended a lawful act. The prosecutor must overcome this hurdle with evidence, not just an assumption based on his belief about the character, or lack thereof of the defendant. From a legal perspective, this part of the case will be fascinating to watch.

If you already hate former President Trump, and many apparently do, there is a very real risk that failure in the New York case will make other, arguably better cases, but not in as good a venue for trial, moot, or at least far more difficult to win. So besides being a very problematic case on its own merits, the New York case is also a dangerous case if what you want is a Trump conviction. On the other hand, they could win it, and if they do the other potential criminal cases against former President Trump may rise like kites in the wind. Get some popcorn, the previews are over and the big show is about to begin.

 ———#####———-

My book, Steel Rain, the Tet Offensive  is available on Amazon both as a paperback and on Kindle. It is a Five Star book with lots of reviews, many by others that were there in Vietnam with me as well. Please give it a look. See; Steel Rain, the Tet Offensive 1968

Recent Reviews of Steel Rain, the Tet Offensive:

“John Harrison does an eloquent job writing what it was like being in the infantry during the Vietnam war. I know, I was in the infantry in Vietnam. There is a statistic which states that only 1 out of 10 who served in Vietnam were in the infantry. All of us have been asked what that was like at one point since our return. It is an impossible question for most of us to answer in part much less in full. John Harrison manages to do this in his book, Steel Rain, the Tet Offensive. So, if you are inclined and wonder what it was like, or you want to tell someone else what you went through, buy this book. Show it to your friend, show it to your family. It tells your story. To, “LT” John Harrison- thank you Sir.Salute.”

“John Harrison’s book, Steel Rain, the Tet Offensive, is a series of short stories, told mostly in the first person, that weaves together the humor and violence that only a talented writer can accomplish. The result is a compelling book that is hard to put down. John’s words flow easily on the pages, making an easy read. I highly recommend this book to anyone that has been there and did that, or anyone wanting to know a personal record of one lucky Lieutenant in Vietnam and the people that made it possible for him to return home.
Dan Hertlein, helicopter mechanic with the 192nd AHC at LZ Betty 1968″

“John is the soldier speaking the truest story of Vietnam. I will confirm his action as I was in a different company same battalion, fighting the same battles.”

Impeachment is a political, not a judicial process, and so far it is not going well

Impeachment is a political, not a judicial process,
and so far it is not going well

by john harrison

When you push an impeachment out of committee without a single vote from the minority party, it is an entirely partisan effort, not a real impeachment for cause. If you cannot attract a single vote from the other side, and you lose some votes from your own side, you have not made your case. It really doesn’t matter what you think about President Trump, or about what he may have done, it matters only what you can make others agree with. The Democrats have failed to make a case.

If the Democratic case was strong, the Republican House members would be worried about losing the election itself and would vote to impeach. Both Clinton and Nixon had several members of their own party’s vote for their impeachment. Members of the opposing party voted both in committee and on the House floor for impeachment those two cases, and in Nixon’s impeachment hearing this was well before the most damaging evidence came to light.

If you want to blame somebody for the lack of Republican votes so far, a fair choice is either President Trump did not commit a real impeachable offense, or the Democrats did not do a good enough job. They over promised and under delivered as we would say in court.

Politics is all about self interest. Expecting anything else is a pipe dream. That said, I think the Donald probably would not get past a Grand Jury for two reasons: a Grand Jury has a very low level of proof required and no rules of evidence, sort of like the Judiciary Committee, and the old saw is that even a middling prosecutor could talk a Grand Jury into indicting a ham sandwich. I think it was the second point where the democrats failed. A Grand Jury is a closed process that does not have to look fair but in an impeachment you are not going to get the other side to agree with your apocalyptic rhetoric unless you come up with an apocalyptic crime. So far no actual crime, apocalyptic or otherwise, has been charged.

I really think the Democrats really just blew it. It was doable, but they blew it. Just like Senator Feinstein’s mistakes torpedoed them in the Kavanaugh hearing. They shot themselves in the foot in this one as well.

You must have a reason for a subpoena or a judge will not give you one. Even if you are pursuing the Mafia or ISIS, you can’t just go on a fishing expedition with subpoenas. It was pretty clear after a while that the Intelligence Committee was on a fishing expedition. They were looking for reasons to impeach, just like all of the Republican investigations into Benghazi were looking to build a case, not to find out what actually happened.

There is a big difference between building a case and investigating an event. The branches are co-equal. Executive privilege is real. The House committees have a right to call witnesses, but the president has an equal right to run the executive branch. If they had a crime, and no actual crime has been identified, and the president refused to let witnesses, lawyers excepted, testify about a crime then they would have clear impeachable offense, but if it is like the Mueller Investigation where the President impeded what turned out to be an investigation into nothing then that is entirely different. It is hard to say that the President’s actions during the Mueller Investigation were really an “obstruction” of justice since justice was served and only the investigation which found nothing was impeded. At most this is a technical offense and unlikely to be prosecuted by anybody.

Some people have forgotten that Rudy Giuliani is the President’s lawyer. As such he is a special case since he is not a public official. Attorney client privilege applies. If I was the president’s lawyer I would have ignored every subpoena, and if arrested and brought before the committee I would have respectfully refused to answer anything except my name, my profession and my client’s name. That’s it. After that, they can pound sand.

That is the Republican argument and if it is true, it is a good one. I have not followed the committee hearings, blathering, by both sides gets on my nerves so I don’t have an opinion on the process, just the result.

There is one point I overlooked about the subpoenas, for some reason the two Committees never tried to enforce any of them. The route used in Watergate was the courts. That was what precipitated the “Saturday Night Massacre”. If this was a court it would probably rule that the charge of ignoring the subpoenas is not “ripe” for adjudication because the Committee for some reason skipped a necessary step. Therefore, the President did not do anything wrong. Like every citizen he has the right to test the validity of the subpoena, and he did it. That put the ball back to the Committee which thereupon sat on it. It could have used inherent congressional power to enforce the subpoenas or the courts. They chose to do neither.

True holding a contempt hearing in a court would take longer, but that is what they have always done. You don’t get to avoid court just because it is inconvenient. This was not a rush to judgement, it was just a rush. It is literally like a home run where the runner failed to touch 2nd base. He’s out.

If you want Senators McConnell, Graham and the rest of the Republicans to play by the rules then the committee and the House also must play by the rules. They took every shortcut and now that is coming back to haunt them. This is one of the dumbest ideas, poorly executed, that I have ever seen a bunch of talented people do.

Now they are holding up delivering the articles of impeachment to the senate. Why hurt your own candidates by tying them to the senate during their campaign? Yet another not the best idea.

Let’s take the easy one, the refusal to respond to Congressional subpoenas. Neither committee ever moved to enforce any of those subpoenas. There are two ways they could have been enforced. The one used in Watergate against President Nixon was to go to court. You may remember that was how Nixon was ordered to give up the tapes and led to the Saturday Night Massacre as noted above. The other way involves the House sanctioning the person refusing either by fine or by arrest on its own motion. For many reasons including ordering the Sergeant at Arms to arrest someone has proved to be unworkable, this method has not been used since 1935.

Using the same logic that has been used against the President on this same issue, that is that the supposed reason that he does not want them to testify is that they will say things he does not want to hear if they tell the truth, you could say the reason that the Speaker and Committee chairmen have not moved to enforce the subpoenas in court is that they know that they would lose there. The subpoenas may be over broad, or not supported by probative evidence. Since most of the testimony at the hearings was hearsay, the later is very likely.

As a matter of law just about any court would say that the subpoenas are void since no one has ever moved to enforce them. Some will say it would take time to enforce them properly. Well, doing something correctly often takes more time than doing it in a slip shod way. We will never know what they would have said if they had actually been compelled to testify, and the reason we won’t is that Chairmen Schiff and Nadler elected not to do their jobs. President Trump might have resigned like President Nixon chose to do.

This charge will not go anywhere.

Essentially the second charge is “abuse of power” based on a telephone conversation. The gravamen of the charge is that President Trump allegedly requested that the Ukraine open an investigation into Joe Biden’s son for political purposes and tried to use his power as President to coerce the Ukraine into doing that.

An article in the Atlantic sums up the problems the House impeachment managers will have with this charge. The problem in simple terms is that the act itself is not illegal. It only becomes wrong if you can prove that the act was motivated solely by an illegal intent. Intent is one of the hardest things there is to prove in a court of law. Proving it on the senate floor, with or without witnesses, will be even more difficult.

In any event, so far more Democrats have voted against impeachment than Republicans have voted for it, they are in the minority in the Senate already, just like Congresswoman Tulsi Gabbard, all the senatorial candidates for president will recuse themselves from voting so the number of Republican votes they will need to convict is well over 20. Not going to happen. Who knows what would have happened if they had bothered to do it right. A John Dean or an Alexander Butterfield might have appeared. They were the ones that disclosed President Nixon’s secret taping system.

This is an interesting point as well. “In a Bloomberg op-ed, Harvard legal scholar Noah Feldman said Pelosi, D-Calif., can delay sending the articles of impeachment to the Senate, but not for an “indefinite” period of time.

“Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial,” he wrote, going on to say that if the House doesn’t release the articles, Trump could legitimately declare that he was never actually impeached.

“To be sure, if the House just never sends its articles of impeachment to the Senate, there can be no trial there. That’s what the ‘sole power to impeach’ means. But if the House never sends the articles, then Trump could say with strong justification that he was never actually impeached. And that’s probably not the message Congressional Democrats are hoping to send,” Feldman concluded. I think he is right.

They have issued subpoenas, but failed to enforce them. They have voted to impeach, but have failed to complete the process so far. As a matter of Constitutional law it looks like, gleeful newspaper headlines to the contrary notwithstanding, President Trump has not in fact been impeached yet. Is this the gang that couldn’t shoot straight?

---

 

My new book, Steel Rain, the Tet Offensive  is available on Amazon both as a paperback and on Kindle. Please give it a look. See; Steel Rain, the Tet Offensive 1968

Recent Reviews of Steel Rain, the Tet Offensive: “John Harrison does an eloquent job writing what it was like being in the infantry during the Vietnam war. I know, I was in the infantry in Vietnam. There is a statistic which states that only 1 out of 10 who served in Vietnam were in the infantry. All of us have been asked what that was like at one point since our return. It is an impossible question for most of us to answer in part much less in full. John Harrison manages to do this in his book, Steel Rain, the Tet Offensive. So, if you are inclined and wonder what it was like, or you want to tell someone else what you went through, buy this book. Show it to your friend. It tells that story. To, “LT” John Harrison- thank you Sir.Salute.”

“John Harrison’s book, Steel Rain, the Tet Offensive, is a series of short stories, told mostly in the first person, that weaves together the humor and violence that only a talented writer can accomplish. The result is a compelling book that is hard to put down. John’s words flow easily on the pages, making an easy read. I highly recommend this book to anyone that has been there and did that, or anyone wanting to know a personal record of one lucky Lieutenant in Vietnam and the people that made it possible for him to return home.
Dan Hertlein, helicopter mechanic with the 192nd AHC at LZ Betty 1968″

“John is the soldier speaking the truest story of Vietnam. I will confirm his action as I was in a different company same battalion, fighting the same battles.”

Why We Need Presidential Electors

Why We Need Presidential Electors

by  john harrison

Every four years some people express surprise to find out that they live in a republic rather than a democracy. This year, as in in several other presidential elections, they express surprise that it is not only possible but happens fairly often that a candidate for president will win the popular vote but still lose the election. They are aghast. How could that happen?

It is even a bigger surprise when they find out that it was designed that way absolutely on purpose. The founders distrusted a pure democracy, which they believed, and history supported, almost always degenerated into mob rule. By setting up our system of checks and balances, they hoped to avoid that disaster.

If we did not have such a system; if it was a straight question of majority rule; then, a candidate might only campaign in California, Texas, Florida and New York since those four states alone comprise over one third of the total population of the United States, and they vote. You would never see such a candidate in Oregon, Montana, Nebraska, Virginia or in any state where the election was close because already about half of the votes in such a state are in effect already “taken“. The candidates would only go to those states where they had a huge base because that is only place they could go that would make a real difference in the success, or failure of their campaign.

Frankly, they would campaign much like President Trump has campaigned, only going to their areas of strength to “fire up their base“, to get out their vote. They would live in an echo chamber of approval, and that would move their campaign’s even further away from the center than today.

Simply stated, that would be bad for our democratic republic. In fact, her failure to satisfactorily confront her problems in the battleground states was at least part of the reason that Sec. Clinton lost in the last campaign. Our current system requires candidates to go exactly to the places in the country where the real issues of that campaign are being fought out. That is why they are called “battleground ” states. These states change fairly regularly as new states, like Michigan in 2016, come into play. They are the states where a few votes either way could tip the scales, and all of that state’s electoral votes to one of the candidates. The candidate’s base in these states is usually already pretty fired up because they have done their risk analysis and they know that the alternative is defeat, both locally, and nationally.

In essence, this process in the battleground states forces the candidates back to the center. They must present a message that at the very least does not frighten their opponent’s supporters into action, and in the best case attracts at some of them to their campaign. Every vote conquered in these states is really two votes, one less for your opponent, and one more for you. It is a classic “zero sum game” at that point. It is this unifying force that is missing from the Trump campaigns. It was the failure of Sec. Clinton to recognize this, and to at least partially join now President Trump in pandering to the extremes of her party that cost her the election, but drove up her vote total. Doing away with the Electoral College would make this kind of divisive campaigning the norm. That would not be a good thing for our republic.

One of the greatest gifts of the Electoral College is, when they vote it is over. There are no recounts. If a state’s electors do not vote for some reason, then they do not vote. No state has ever allowed that to happen. Think of a national election decided by less than 100 popular votes. We have already had one that was decided by less than 2,000 votes. Would there be a demand for a recount? Who would be president in the interim? How would it work? How could it work?

The idea of a pure democracy in a nation with 335 million people is I think an unachievable chimera. A few years ago, the Democrats ended the filibuster for federal judges’ appointments. That “reform” turned around and bit them two times in the Supreme Court, and likely three soon enough. We really do not know what effect eliminating the Electoral College would have. However, the lack of a filibuster has already changed the federal judiciary, by removing the necessity for consensus in the Senate for judicial appointments. Consensus and compromise are not dirty words in my lexicon. They are essential to the survival of the Republic.

Finally, the people in the small states are not dumb. They know the only reason the candidates ever stop by their state during a campaign is because of their electoral votes. Any change would require them to agree to give that up. Not likely besides not being a good idea.