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Having it both ways


Earlier this year, Senate Foreign Relations Committee Chairman Jim Risch stated : “My repertoire does not include sparring publicly with the president of the United States. . . . For many, many different reasons, I think that’s counterproductive, and you won’t see me doing it.”

Well as "the church lady" character on Saturday Night Live might say, "How conveeeenient!"

Mr. Risch not only refuses to "spar" with the president, he fails to make public his views on key issues. The title “chairman” would suggest a leadership role, but Risch offers little more than smug silence.

By keeping mum on all matters relating to foreign affairs, Mr. Risch gets to have it both ways. If Trump does something that plays well, Risch can always say, "Yeah, I encouraged him to do that." And if Trump does something utterly horrible, say abandoning the Kurds? Well, Risch can insinuate that he bent Trump's ear in the other direction, ever so softly of course, behind the scenes. As I write this, Risch has uttered not a word on Trump’s latest reckless foray, one which has been condemned by even the usual sycophants Mitch McConnell and Lindsey Graham.

With this playbook, who is to know what Risch actually said to the president? For that matter, who is to know if Risch talks to the president at all?

Standing in the shadows of former Idaho U.S. Senators William Borah and Frank Church, both of whom served with great distinction as chairmen of the Senate Foreign Relations Committee, Risch looks small. Church and Borah were giants in the field of foreign relations. Unafraid to challenge conventional wisdom or to call out unwise executive branch policies, even from presidents of their own party, they trusted the people of Idaho to know exactly where they stood on the issues of the day.

But Risch? He’s basking in Trump’s “full and complete” endorsement. That likely means one of two things: Risch is either in lock step with Trump, which is concerning, or he’s never voiced any disagreement to Trump, which I think more probable. Either way, he’s playing it safe and trying mightily to have it both ways. What he’s not doing is being forthright with the people of Idaho.

Trump’s Distort-and-Delay Playbook


They're doing it again. Trump and company are "getting out ahead of the facts" by spinning a story, weaving a phony narrative, and deceiving the public.

The Trump crew employed to great effect a distort-and-delay approach to release of the Mueller Report and seems to be using the same tactics with regard to the current whistleblower’s complaint. You will recall that Special Counsel Robert Mueller submitted his report to Attorney General William Barr on March 22, 2019, after which Barr promptly “summarized” the report, manipulating its key findings and tying the whole thing up with a "Nothing-to-see-Here" ribbon.

Barr did not provide a redacted version of the Mueller Report to Congress and the public until April 18, 2019. By the time the redacted version finally saw the light of day, the damning findings were viewed through Barr's month-long “summary” smoke screen. Barr knew that few of us would plow through the 400-plus page report and kept his deception simple, giving Trump days on end to bellow "No collusion, no obstruction -- total exoneration!" That's not what Mueller found and Barr knew it. But by then Barr had dropped the pretense of being our nation's attorney; his only client was Donald J. Trump. And by then Barr's misleading version of the Mueller Report had eclipsed the report itself.

Now they're running the same play again. We know that a whistleblower told the Inspector General of a phone call in which Trump made concerning promises to a foreign leader. The Inspector General found the whistleblower's account credible and urgent. The Inspector General reported his findings to the Acting Director of National Security. At that point, the law required the Acting Director to forward the Inspector General's findings to the appropriate committees in Congress. But did he?

Heck, no. He hustled over to Mr. Barr's shop and, to no one's surprise, was told he could not comply with the plain requirements of the law. So, as of this writing, neither Congress nor the American people know the specifics of the whistleblower's concern. As intrepid reporters ferret out bits and pieces of the story, we learn just enough to give Trump and company running room to deny any wrongdoing, disparage any who voice concerns, and denigrate the brave person who dared to blow the whistle. Trump’s tired refrains of “witch hunt,” and “hoax,” have sprung with astonishing alacrity from the lips of his enablers in Congress and apologists on Fox “News.”

The Trump playbook is brazen. It resorts to bullying and obfuscation. And, as with the Mueller Report, it requires the ever shameless Rudy Giuliani to hustle, however ineptly, to Trump's defense. The Trumpsters learned something from their handling of the Mueller Report – that fogging up and fudging the facts before the facts are known, and slow-walking their release, inures to Trump’s benefit. We've seen this movie before, and the ending wasn’t pretty.

UPDATE After submitting this column to Ridenbaugh Press, I came across an article that said much the same thing in much the same way. Although I had not read this article prior to submitting my column, I wanted to share it and publicly acknowledge the similarity. Here is the link:

Where is the pro-life outrage?


In 1990, a 26 year old Florida woman had a cardiac arrest, was successfully resuscitated but suffered massive brain damage and was left comatose. After two and a half months without improvement, she was diagnosed as in a persistent vegetative state. Her name was Terri Schiavo.

Schiavo had no living will. Three years after Schiavo’s cardiac arrest, and after extensive, unsuccessful attempts to return Schiavo to a state of awareness, her husband, certain that Schiavo would not want to be kept alive by artificial means, petitioned a Florida court to remove her feeding tube.

There are few things more difficult than making end of life decisions for a loved one, and the pain is surely compounded when different family members disagree. Schiavo’s parents opposed the petition, and an exceedingly lengthy legal battle ensued. Thus was created a heartbreaking scenario in which Shiavo, who doctors said had no chance of reversing her condition, was kept on medical nutrition in a Florida facility for twelve more years.

There were myriad proceedings in Florida state courts, ultimately resulting in a ruling that Schiavo’s feeding tube should be removed. By then, the Schiavo case had become, for the far right, a political cause celebre. The “Pro-Life” movement went into overdrive, protesting the court’s decision and demanding that the political branches of government keep Schiavo alive, arguing that to remove her feeding tube was tantamount to murder.

Florida Republicans were quick to respond. Within a week after the tube was removed, the Florida state legislature met in emergency session and passed a bill giving Governor Jeb Bush the authority to intervene in the case. Governor Bush immediately ordered the feeding tube reinserted. More litigation followed, concluding when the Florida Supreme Court overturned the Florida law as unconstitutional.

At this point, the “Pro-Life” groups demanded that the federal government act to keep Schiavo alive. So the Republicans in Congress promptly joined the fray, passing a bill transferring jurisdiction of the Schiavo case to the federal courts. Jeb Bush’s older brother, President George W. Bush, signed the bill into law. But in the federal courts, as in Florida state courts, all of Schiavo’s parents’ petitions and appeals were denied. The litigation finally ended when the U.S. Supreme Court declined to hear the matter.

On March 18, 2005, Schiavo’s feeding tube was removed. She died 13 days later. An autopsy revealed that Schiavo’s brain weighed half that of a healthy human brain, that she was blind and incapable of thought or emotion. The medical examiner concluded: “This damage was irreversible.”
Terri Schiavo came to mind last night as I watched The Rachel Maddow Show report on a new and unspeakably cruel Trump Administration policy, one in which severely ill immigrants, including children with cancer, cystic fibrosis, and other life-threatening conditions are facing deportation.
Across the country, immigrants have been receiving boilerplate letters from Citizenship and Immigration Services informing them that applications for renewal under the Medical Deferred Action program will no longer be considered. They are being informed they have 33 days in which to leave the country or face deportation proceedings.

Doctors tell us that the Trump Administration failed to consider the disastrous impact this new blanket policy will have on children and adults battling HIV, muscular dystrophy, epilepsy, leukemia and other diseases. Perhaps the architects of this policy are as clueless as former Congressman (now Idaho GOP Chairman) Raul Labrador who once told a constituent, "Nobody dies because they don't have access to health care." But I think the Administration was well aware that many immigrants receiving life-saving medical treatment in our country would not long survive once this policy was enacted.

We can’t know with certainty if the Trump Administration was indifferent to the consequences of its new policy, or intentionally cruel. But either way, the impact on many immigrants confronting dire medical circumstances is the same: they will face a death sentence.

So now I ask: Where is the “Pro-life” outrage? Where are the protests, the prayer vigils, the calls to Senators and Members of Congress demanding action? Where are the voices of the people who insisted that the federal government do everything in its power to keep alive a vegetative Terri Schiavo? Why have these people become invisible? Why are they silent now?

Time for Risch to speak up


Last week Donald Trump gave Idaho’s junior senator his full-throated endorsement. Trump tweeted: “Senator Jim Risch of the Great State of Idaho has been an incredible supporter of our Agenda! He is tough on Crime, Strong on Borders, and will continue to fight for our Second Amendment. Jim will never let you down. He has my Full and Complete Endorsement!”

Now we know that, for this president, it’s all about him, not us. So when Trump writes “Jim will never let you down,” that’s Trump-speak for “Jim will never let me down.” Why would Trump think that? Well, perhaps because Jim has proven himself to be a reliable sycophant, a committee chair utterly disinterested in exercising any meaningful oversight of the executive branch.

Recently, Risch was quoted as saying, “What puts you in a bad place with [Trump] is going out publicly and criticizing him, and I don't do that.”

I get it, Jim. You don’t want to upset the big guy. Heaven forbid he might recruit and support a Republican to primary you. But your constituents have a right to know where you stand, and your silence on key issues has been deafening.

Have you told the president you disagree with his withdrawing the U.S. from the TPP?

Or that his tariffs on China are hurting U.S. consumers and farmers?
Or that his acceptance of North Korea launching short range missiles damages our relationships with longtime allies South Korea and Japan?

Or that pulling out of the Iran Nuclear deal, with which Iran was in compliance at the time he withdrew, makes us less safe?

Or that his eagerness to credit Communist dictator Vladimir Putin and discredit U.S. intelligence agencies undermines the dedicated men and women who are doing the hard, and often dangerous, work of gathering the intelligence needed to keep our country safe?
Or that his failure to say a word in support of the courageous Hong Kong protesters fighting to preserve their freedom emboldens Communist China?

Or that his obsequious behavior with Saudi Crown Prince Mohammad bin Salman, who ordered the torture and murder of a Washington Post journalist, sends the message that U.S. residents are expendable for profit?

Or that his cruel, costly, and completely unnecessary policy of separating parents and children at the southern border, and housing migrant kids in cages, is antithetical to norms of human decency?

Or that his inability to acknowledge as fact the Russian assault on our 2016 election and his unwillingness to take ANY steps to protect the security of our 2020 election from similar assaults actually encourages Russia (and other countries) to repeat and escalate those attacks?

Or that his verbal assaults on NATO and its members and his rhetoric suggesting that the U.S. might not honor its Article 5 commitment to protect allies erodes the confidence of our European allies?
Or that his constant turnover of top military and diplomatic personnel – and the enduring vacancies in many key positions – makes the administration look like a particularly chaotic episode of the Keystone Cops?

Or that his inability to develop, articulate and sustain a coherent foreign policy as to any country or geopolitical region alienates our friends, strengthens our foes, and makes us look weak and indecisive on the world stage?

Maybe Jim has privately discussed some or all of these matters with the president – and maybe he hasn’t. We don’t know which it is because Risch doesn’t – by his own admission – want to find himself “in a bad place with Trump.”

But as Chairman of the Foreign Relations Committee Risch surely has a point of view on all of these issues. If Risch is in lockstep with the president, as Trump asserts in his tweet, Risch should tell us. If Risch disagrees with the president, he should tell us that too.
After all, the good senator wasn’t elected to kowtow to Trump. He was elected to represent the people of Idaho.

Ridin’ with Biden


I first “met” Joe Biden a long time ago. Then 33, he was the nation’s youngest U.S. Senator, and the featured speaker at the Idaho Democrats’ annual Jefferson-Jackson Dinner. I was a student at the University of Idaho, where my major, unsurprisingly, was political science.

As Chair of the U of I Campus Democrats, I organized a mid-winter road trip for members of our group to drive to Boise to attend this flagship event. We traveled, as college students must, on a budget, finding places to sleep at homes of local party people.

One of my heroes, the late Senator Frank Church, introduced the freshman senator from Delaware, noting that this newcomer to “the nation’s most exclusive club” was occasionally mistaken for a page, much as Church himself had been when he was first elected to the Senate at the ripe age of 33.

Biden more than impressed; his speech was electric. Idaho Democrats, who were there that night, remember it well. Adults whose parents attended say their parents still talk about it. This young senator from the “Diamond State” had charisma and potential to spare.

Over the years, I have followed Biden’s remarkable career, usually with great admiration. I read his book, “Promises to Keep,” published in 2007, and his more recent book “Promise me, Dad,” published in 2017. Some themes are constants through Biden’s life – the importance of public service, devotion to our country and its people, and an unswerving commitment to faith and family.

It is difficult – if not impossible – to read about the personal losses and pain Biden has endured and not be inspired by his resilience and undaunted desire to help others. One would have to look long and hard to find another politician having a stronger sense of duty or more integrity than Joe Biden. He is decent to the core.

This said, I haven’t yet decided which of our many outstanding candidates will earn my vote in the 2020 primary. It very well might be Biden. But it might not.

Along with many of my fellow Idaho Democrats, I cheered the fact that Biden came to Idaho early in the primary season and did not treat this ruby red state as just so much fly-over country. (Only Jay Inslee and Julian Castro have also done so.) And his clarion speech following the deadly shootings in Gilroy, El Paso, and Dayton reminded us of the dignity and strength with which a president can lead and the eloquence with which a president should talk.

But as many have noted, Biden’s long tenure in public office is a two-edged sword. He has a great many accomplishments, but some of his past actions, while more easily understood in the context of the times, are problematic in light of present day realities. He needs to find a way to clearly address the past, put it in perspective, and pivot swiftly and forcefully to the future.

Consider when, as Chairman of the Senate Judiciary Committee, Biden presided over the Supreme Court nomination hearing for Clarence Thomas. A young lawyer, Anita Hill, testified that she had been sexually harassed by Thomas, who had been her supervisor. Many members of the all-male senate panel treated Hill with disrespect, if not outright contempt.

Thomas vehemently denied Hill’s allegations. Four female witnesses stood ready to testify, to offer corroborating evidence to support Hill’s testimony, but Biden – in an arrangement worked out with the Republicans on the committee – declined to call them.

In recent months, Biden has accepted responsibility for the fact that Anita Hill “did not get treated well,” that she “did not get a fair hearing.” But, as Joy Behar said to Biden when he appeared on The View, his statement would have more resonance if he were to avoid the passive voice and bluntly say, “I’m sorry for the way I treated you.” Moreover, a statement that he should have called her corroborating witnesses would show an understanding of the specific way in which he failed to provide her a fair hearing.

But Biden’s performance at the Clarence Thomas hearing, though troubling, is an aberration. His record on women’s rights is exceptionally strong. Biden was the driving force behind passage of the landmark Violence Against Women Act. He worked tirelessly to recruit more women to run for the U.S. Senate and urged them to become members of the Judiciary Committee. And, as Vice President, Biden fought sexual assault on campuses. Few senators have championed equal rights for women as consistently and forcefully as Joe Biden. Now what is his vision for the future?

Another two-edged sword in Biden’s background is the 1994 Violent Crime Control and Law Enforcement Act, which was passed when violent crime was at double the current rates. The downside – and it is considerable – is that it resulted in sky high rates of incarceration and disproportionately affected the Black community. This impact, though unintended, has been unjust and harmful.

On the plus side, the Act contained several progressive provisions, most notably an assault weapons ban designed to help reduce the number of deaths caused by the use of rapid-fire weapons with a capacity to fire many rounds without reloading. Moreover, the Act recognized that we will never eradicate violent crime solely by prosecuting, convicting, and imprisoning criminals. It placed a strong emphasis on crime prevention programs. And, in an effort to make law enforcement personnel a more trusted and integral part of localities, funding was made available for community policing.

Biden could do a better job of harvesting the legislative wheat, even while discarding the chaff. Instead of defending past actions with nuanced explanations, Biden needs to find a way to more crisply convey that in that time, at that moment in history, he did the best he could to get the best possible outcome. To critique a decision against the backdrop of today’s political reality, today’s moral standards, misrepresents the value of the decision at that time and his vision for the future.

And then, most importantly, he needs to share that vision with clarity, specificity and passion. He has the ability to electrify a crowd. I’ve seen it. Now all of us need to see it more often.

Crediting Mueller’s testimony


Most of us have experienced it – the painful moment when we realize that someone we love or deeply respect has aged and, in aging, declined – sometimes slightly, sometimes greatly. Perhaps we’ve seen this in an elderly relative, or maybe a cherished teacher or coach. Initially, we may deny there has been any change; but there comes a point when we accept the reality, painful though that may be.

In the early minutes of the first Mueller hearing, it became evident that the Special Counsel, this highly respected, almost iconic public servant, was no longer the crisp, focused, in command presence we had come to expect from his many previous congressional hearings. There were moments when Mueller seemed unsure of the contents of his own report. There were other times when he hesitated in answering questions that would seem to elicit an easy and quick response.

Across the nation, lawyers and pundits who had followed Mueller’s storied career observed that he seemed less steady, less certain. Much of the media coverage following the hearings featured people who knew Robert Mueller well, many of whom had worked with him, admired him, and who, in sadness, conceded that this great American was no longer at the top of his game. Mueller had aged, they said, and it showed.

No doubt there will be those who attempt to diminish the findings of the Mueller Report because Mueller himself revealed some decline at the hearings. That would be a mistake. The Mueller Report, though bearing Robert Mueller’s name, was not the product of one man.

Rather it was the careful result of two years of industrious effort by a team of exceptionally bright, extremely hard-working and highly principled prosecutors and investigators. Its findings are documented to a fare-thee-well.

As to the key conclusions of that report, Mr. Mueller’s testimony was crystal clear: Russia wanted Trump to win the election and offered help to that end; Trump and his campaign welcomed that help, used it, and lied about it; Russia’s attacks on our republic were widespread and systematic, and -- most troubling -- they are ongoing. And despite Trump’s incessant bleating to the contrary, the report did not exonerate the president as to the crime of obstruction of justice.

Mr. Mueller may not have as keen a memory or as quick a recall as he once did. But he has always been an unabashed patriot and is almost universally regarded as a man of sterling character. He has a reputation for cutting square corners and consistently upholding the rule of law. Nothing about his testimony before the House Judiciary and Intelligence Committees suggests a diminution of his integrity or honesty.

Do I wish Mueller had testified with the vigor and clarity with which he testified before Congress in prior years? Yes, certainly.

But I have no doubt whatsoever that, even in his frequent reticence, Robert Mueller spoke the truth. And the truth, no matter how haltingly delivered, was devastating to Donald J. Trump.

Sofi’s choice


In 1982, as a first time mom with a two year old, I should have known better than to watch the haunting movie Sophie’s Choice.

One scene so disturbed me that, for weeks afterward, I would weep to think of it. If you saw the movie, or read the book, you already know the scene.
Sophie (played by Meryl Streep) is a Polish Catholic woman who arrives at Auschwitz with her two little children, a boy and a girl. Terrified, Sophie stands in line holding her young daughter in her arms while her little boy clings to her skirt.

After a Nazi officer makes lurid comments to Sophie, he asks, "Are you a Christian?" When she nods, he asks if she agrees with Christ’s words “suffer the children.”

Then he demands the unthinkable – that she relinquish a child. “You can keep one of your children,” he says matter-of-factly. “The other one must go.”

Sophie, disbelieving, asks him to repeat what he has said. He obliges with a more forceful: “You can keep one of your children. The other one must go.”

Stricken, Sophie screams “I can’t choose!”

The officer threatens, “Choose or I’ll take them both.”

As Sophie desperately chokes out, “I can’t choose!” the officer orders his guards: "Take them both!”

One can almost see Sophie’s soul fracture as she is forced to make her gut-wrenching “choice.” “Take my little girl. Take my baby.” The little girl's screams are piercing as she is wrested from Sophie’s arms. Sophie’s scream, though silent, is shattering. It is eternal.

Indelibly etched in my memory, this scene came to mind as I watched coverage of another Sofi who was also ordered to make an impossible choice.

Sofia, called Sofi by her family, is a three year old girl, the youngest of three children of Tania and Joseph, a married couple from Honduras. The family fled Honduras to seek asylum in the U.S. after Tania witnessed her mother get killed and her sister, who had also witnessed their mother’s murder, had been kidnapped, tortured and slain to keep her from testifying.

At a Border Patrol holding facility in El Paso, Texas, an agent told the family that one parent would be sent to Mexico while the other parent and the three children could stay in the United States.

A doctor informed the agent that Sofi had a serious heart condition and that it was imperative that the family stay together. But the agent insisted on the separation. Then, incredibly, the agent turned to three year old Sofi, and told her to make a choice. Which parent did she want to stay – her mother or her father?

Not fully comprehending what was being asked of her, little Sofi "chose" her mother; but when the children realized the family faced separation, they clung to their father, the son wrapping his arms around Joseph’s neck and Sofi and her sister holding on to Joseph’s legs. Sofi’s mother told NPR that the agent, upon seeing Sofi’s panic, said, “Why are you crying? You . . . picked your mother.”

No child – let alone a toddler – should ever be told to make such a horrible decision.

In divorce cases, if parents cannot reach an agreement on custody, a judge will make the determination; and, if a child is sufficiently mature, he or she may be able to let the judge know if there is a preference. But even then, it is not the child, but the judge, who makes the ultimate decision.
Fortunately, Sofi’s story has gotten better – for now. Doctors intervened and the family was allowed to stay together with relatives in the United States. But it is unconscionable that Sofi was ever forced to make such a heartbreaking “choice.”

No family should ever be torn apart at the cruel whim of an agent working for an indifferent bureaucracy. And no child should ever be made to choose one parent over another. That is an unspeakably heavy burden, one they must never be forced to bear.

1000 and counting


Having served for seven years as the U.S. Attorney for the District of Idaho and worked for a year for the Executive Office for U.S. Attorneys, I am acquainted with over 200 former federal prosecutors. It is my observation that federal prosecutors, as a group, are exceptionally deliberate. For the most part, they are – by training and experience – not likely to go out on a limb in reaching prosecutorial decisions or making their views on other prosecutors’ decisions public.

Thus, it is remarkable that, at latest count, no less than 1,000 former federal prosecutors – Democrats, Republicans and political independents – have signed a crystal clear statement asserting: “Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

The Statement then references “several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming.”

These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;

· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and

· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.

The Statement emphasizes that these “are not matters of close professional judgment” and concludes with the reminder that “prosecuting obstruction of justice cases is critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk.”

Make no mistake. This kind of overwhelming expression of disagreement by former federal prosecutors with an incumbent attorney general is not an everyday occurrence. Indeed, it is unprecedented.

I am proud to have signed the Statement.

Under Department of Justice guidance, when the evidence is sufficiently strong and the federal interest to be vindicated is substantial, prosecution should commence or be recommended even in instances when a prosecutor might doubt that, due to the popularity of an individual, a jury might be unlikely to convict.

While we can question the president’s popularity with the general public, conventional wisdom has it that the U.S. Senate, with its Republican majority, would be unlikely to produce the two-thirds vote needed to convict, should the House vote to impeach.

But there are times when the charging process itself furthers the interests of justice. In my view, this is such a time.

For those claiming that Democrats would pay a political price were they to proceed with impeachment, I would note that 2019 is not 1998 and Donald Trump is not Bill Clinton. Moreover, Mr. Trump's alleged wrongdoing is infinitely more extensive and damaging to our republic and the rule of law than the matters for which Clinton was accused.

It is of course possible that Democrats would pay a political price if they proceed with impeachment, as it would allow Trump to play the victim, a role at which he excels. But I believe we will pay a greater price if we do not have the courage of our convictions, if - in this time of national peril - we pull our punches and fail to act. As Martin Luther King, Jr. said in a different but equally compelling context, “It is always the right time to do the right thing.”

Shooting from the lip


Donald J. Trump’s penchant for making shoot-from-the-lip accusations may have given former FBI Director James Comey and former FBI Deputy Director Andrew McCabe fodder for a defamation lawsuit against the president.

Last week Trump broadly accused unnamed officials of spying on his campaign and committing treason, a crime punishable by death. When pressed to identify who had committed Treason, Trump got specific, naming Comey and McCabe, and a few others.

Generally speaking, a defamatory statement is one that is: (1) a false statement of fact (2) negligently or intentionally communicated or published to a third party (3) causing injury or damage to the subject of the statement. Libel and slander are different types of defamation. Libel is a written defamatory statement, and slander is an oral defamatory statement.

Different rules of proof apply depending whether the person alleged to be defamed is a public person or private person. If a private person, he or she will typically need to prove only that the person making the statement acted negligently in making the statement, in failing to ascertain its truth or falsity.

However, if the person defamed is a public person, the plaintiff must meet a higher standard of proof. Liability for defamation of a public figure can only be established if the person making the statement actually knew that the statement was false or acted with reckless disregard as to the truth or falsity of the statement. Comey and McCabe are public figures so the higher standard applies.

The official White House transcript of a Q and A between NBC News’ Peter Alexander and the president sets out the following exchange:

ALEXANDER: Sir, the Constitution says treason is punishable by death. You’ve accused your adversaries of treason. Who specifically are you accusing of treason?

TRUMP: Well, I think a number of people. And I think what you look is that they have unsuccessfully tried to take down the wrong person.

ALEXANDER: Who are you speaking of?

TRUMP: If you look at Comey; if you look at McCabe; if you look at probably people – people higher than that; if you look at Strzok; if you look at his lover, Lisa Page, his wonderful lover – the two lovers, they talked openly.

In light of the foregoing, we must first ask whether the president made a false statement of fact.

Article III Section 3 of the Constitution defines treason in the United States as follows: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason. . . .”

Congress in fact declared the punishment of treason in 18 United States Code Sec. 2381. It provides that “Whoever . . . . is guilty of treason . . . shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Clearly, Trump’s statement of fact was false; there are no facts to support his made-of-whole cloth assertion that Comey and McCabe committed treason. We are not at war (the last time we were at war within the meaning of the Constitution and statute was WWII) and Trump’s complaint was not that Comey and McCabe had aided an enemy of our country; rather he claimed they acted to “take down the wrong person,” namely him.

Next, we ask whether the president published his false statement of fact to a third party. Clearly the answer is “yes.” He made his accusation on national television. It had a very wide audience.

The next step is to consider whether the statement caused harm to those the president accused.

A statement is defamatory if it tends to hold the subject of the statement up to scorn, hatred, ridicule, disgrace, or contempt in the mind of any considerable and respectable segment of the community. One need only watch Fox News (briefly) to discern that, subsequent to – and as a consequence of – the president’s statement, Comey and McCabe have been subjected to such scorn, ridicule, and contempt. Moreover, many jurisdictions hold that allegations that an individual has committed a serious, notorious, or immoral crime; has an infectious or terrible disease, or is incompetent in his or her job, trade, or profession constitutes defamation per se. There can be no doubt that Comey and McCabe were harmed by the president’s false statement.

Finally, we must inquire whether the president knew, or should have known, that his accusation of treason was false. In other words, did he act with reckless disregard of the truth?

I have long doubted that Mr. Trump has read the U.S. Constitution. He may not actually have known that his accusation was false. But he should have known. He had every reason to know, every opportunity to know and, it can be fairly said, a duty to know.

When he was inaugurated, Mr. Trump took an oath of office, one prescribed by the Constitution. He raised his right hand, placed his left hand on a Bible, and echoed the words of Chief Justice Roberts who administered the oath: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

One who has pledged to “preserve, protect and defend the Constitution” can be expected to know its provisions. If Mr. Trump did not know that the targets of his accusation had not committed treason, he should have known.

As long ago as 1861, a piece in the New York Times explained: “Treason has ever been deemed the highest crime which can be committed in civil society; since its aim is an overthrow of the Government and a public resistance by force of its just powers, its tendency is to create universal danger and alarm, and on this account it has often been visited with the deepest public resentment.”

The framers of the Constitution took deliberate steps to ensure that accusations of treason would not be used as weapons against one’s political opponents. Now the president, in his rage and ignorance, has recklessly leveled this utterly specious and damning accusation at specific individuals.

And those individuals just may have a case.