Author Archives: shiningseausa

Get the Popcorn Ready for July 2

2 Replies

Ars Technica reports (https://bit.ly/2kRp1y9) that a federal judge has ordered the Environmental Protection Agency to provide documents on which Scott Pruitt, the Administrator of the agency, relied in stating, in March 2017, that carbon dioxide was not a major contributor to climate change. See https://bit.ly/2JowYWp Immediately after Pruitt’s statement, Public Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act request for documents on which Pruitt relied in his conclusion which conflicts with the overwhelming consensus of scientific thought on the subject, including statements published by EPA itself before Pruitt assumed his position.

According to the Ars Technica report, the EPA refused the FOIA request and PEER sued the agency. On June 1, Beryl A. Howell, Chief Judge of the U.S. District Court for the District of Columbia issued a 19-page opinion ordering EPA to produce the documents by July 2 or explain why they can’t by July 11. https://bit.ly/2Jleztq

The opinion opens by observing that EPA’s own webpage contradicted Pruitt’s statement, yet “EPA has performed no search for and produced no records in response to the plaintiff’s FOIA request.” EPA stalled for over a year.

The judge would have none of EPA dissembling and stumbling attempts to shield the Administrator and avoid justifying the statements he made:

“Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made,’” [case citations omitted] EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA. [Opinion at 10]

In a major case of understatement, typical of judicial opinions, Judge Howell said:

“At the outset, EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change. The D.C. Circuit described as “substantial” the “body of scientific evidence marshaled by EPA,” which “scientific evidence of record included support for the proposition that greenhouse gases trap heat on earth that would otherwise dissipate into space; that this ‘greenhouse effect’ warms the climate; that human activity is contributing to increased atmospheric levels of greenhouse gases; and that the climate system is warming.”  [citations omitted]

And,

“EPA is construing the second part of the FOIA request far more broadly than the text supports in a thinly veiled effort to make the request more complex and burdensome than it is.”

And, finally,

“EPA has failed to demonstrate a viable legal basis for its refusal to conduct any search whatsoever in response to the plaintiff’s straightforward FOIA request. When the head of an agency makes a public statement that appears to contradict “the published research and conclusions of” that agency, Compl. ¶ 20, the FOIA provides a valuable tool for citizens to demand agency records providing any support, scientific or otherwise, for the pronouncement, and to oblige agencies to search for and produce any non-exempt responsive records. Compliance with such a request “would help ‘ensure an informed citizenry, vital to the functioning of a democratic society.’”

If the EPA had devoted the time spent resisting the FOIA request on actually complying with it, the agency would have been finished with this matter long ago. Now the agency has been ordered to finish the search in a month and report shortly thereafter on remaining issues.

I cannot avoid the conclusion that the professional agency staff at EPA knows that the documents sought to support the Administrator’s claims re climate change simply don’t exist. They are doing what they can to protect Pruitt from himself, but Chief Judge Howell has seen through the smokescreen. Pruitt has no meaningful science or internal agency research to support his right-wing political position that, as his President and enabler Donald Trump would put it, “climate change is a hoax.” So, July 2, assuming EPA does not continue to resist by appealing to the D.C. Circuit Court of Appeals, will be an interesting day of reckoning.

Law Professors’ Letter Thrashes Trump Claim to Powers of a King

2 Replies

I was in the middle of drafting a long and detailed dismemberment of the two letters recently published by the New York Times, letters written by Donald Trump’s attorneys to Special Prosecutor Mueller. https://nyti.ms/2Lg6kiQ  The letters escalate the conflict to a new and perhaps ultimate level by asserting that the president, under the U.S. Constitution is empowered to use his discretion to stop any investigation into any crimes he may have committed, including treason, and to pardon himself, along with any involved parties, including his family members, for any crimes alleged, whether or not formally charged or convicted. I was going to title it “Trump’s Attorneys Declare War on the U.S. Constitution.”

But there is no need for that because of the intervening publication in https://protectdemocracy.org/law-professor-article-ii/, widely reported, of a letter from a list of distinguished law professors that totally demolishes the Trump attorneys’ claims. If you do nothing else today, you should read the letter. To help you, I have reproduced it below, without the signatories and footnotes (in the interest of space) but you can see all of it at the link cited just above. Here is the letter:

“June 4, 2018

Donald McGahn II
White House Counsel
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Emmet Flood
Special Counsel to the President
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Dear Mr. McGahn & Mr. Flood:

We, legal scholars who study and teach constitutional and criminal law, write in connection with the President’s apparent belief that he is empowered by the Constitution to halt the Special Counsel’s investigation into alleged Russian interference in the 2016 election for any reason whatsoever, and his apparent view that he is not constrained by Congress’s duly enacted laws prohibiting the obstruction of justice. As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to “to terminate the inquiry, or even exercise his power to pardon,” and that he cannot illegally obstruct any aspect of the investigation because of these powers.[1]These views are incorrect.

First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations.[2] Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.

(1) Article II and Faithful Execution

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.

When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.

The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papersrepeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]

It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7] and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament.  Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]

These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

(2) Congress’s Obstruction Statutes and the Separation of Powers

In addition to internal constraints imposed on the President by the text of Article II and constitutional structure, the President is also externally constrained to avoid obstruction of justice.

The mistaken claim that Article II provides a complete defense to obstruction by the President rests in part on the incorrect premise that the Constitution grants him the exclusive right to exercise the executive powers. A President’s Article II powers must be read in conjunction with the restrictions the Constitution places on the federal government, Congress’s Article I powers, and the courts’ Article III powers, as well as laws duly enacted by Congress. The administration of justice involves all three branches of government.

The limitation on the President’s exercise of Article II powers is perhaps easiest to understand in the context of the Bill of Rights. For instance, it would violate the First and Fifth Amendments for the President to fire federal employees based on their race or religion. To give another example, the Due Process Clause requires that persons wielding prosecutorial power be “disinterested.”[14] The Constitution must be read as a whole; none of its provisions, including Article II, is an island.

Most importantly for our purposes, Congress can also exercise its constitutional authority to place limits on the executive.

When Congress legislates within its constitutional authority in a manner that restricts the President, the President is presumptively bound to comply with that law.[15] After all, Congress is expressly given power to enact laws “necessary and proper” for implementing the powers of the President.[16]

Congressional limitations upheld by the Supreme Court on the President’s exercise of his war powers, in a case such as Hamdan, are especially instructive. There, the Court held that Congress could specify procedures for the President to follow for trying military detainees at Guantanamo.[17] If Congress can constrain the President’s vast powers as Commander in Chief in times of war, then it can surely place limits on his conduct in his everyday role as the head of our domestic law enforcement agencies.

And, indeed, that is exactly what Congress and the courts have done.  Even though the executive branch is generally empowered with law enforcement responsibility, Congress has enacted civil service laws and created independent agencies limiting the executive branch’s power to hire and fire federal employees who enforce the law. In upholding the statute that provided for an independent counsel, rather than the Department of Justice, to investigate wrongdoing in the upper reaches of the executive branch, the Supreme Court “concluded [that] ‘we simply do not see how’ it is ‘so central to the functioning of the Executive Branch as to require as a matter of constitutional law that’ the President be understood to have unlimited control over the investigation and prosecution of potential crimes involving himself or his top aides.”[18] As Richard Pildes wrote recently, “Given the established constitutional principle that Congress can protect a federal prosecutor from the President’s domination in these type of cases, Congress can certainly constrain the President’s power in more limited ways . . . including by making it a crime for the President to act with a corrupt intent to stymie or shut down investigations of the President himself and his top aides.”[19]

It is only in rare cases that the President has constitutional power that is “both ‘exclusive’ and ‘conclusive’” on a particular issue,[20] thereby disabling Congress from legislating. And it would likewise be in only a very rare case that generally applicable federal criminal statutes would not apply to the President because of inconsistency with Article II. The Constitution, after all, directly contemplates that the President (and other officers) could be subject to criminal liability for their official actions.[21]

While the President might, for example, intervene directly in an on-going criminal investigation to advance a public-interested goal concerning national security or some other consideration, it is implausible to contend that Article II overrides Congress’s obstruction of justice statutes in circumstances where the President is acting to advance “narrowly personal, pecuniary, or partisan interests.”[22]

The federal obstruction laws, with their bar on corruptly-motivated actions, apply whether the president obstructs an investigation through firing officials leading it, shutting down the investigation, ordering the destruction of documents, or dangling or issuing pardons to induce witnesses to impede the investigation. Just as the President could not use otherwise lawful firing powers in exchange for a bribe without running afoul of federal bribery laws, he is not free to exempt himself from the application of the obstruction of justice laws.

* * *

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws

We have no doubt that you take your professional roles very seriously—and we hope our legal analysis above provides some illumination as you continue to advise your client to faithfully execute our laws and to take care that those laws are faithfully executed throughout the Executive Branch.”

[Signed by 26 law professors]

Why Are Pruitt’s Basketball Tickets Not a Bribe?

4 Replies

On June 3, the New York Times reported that Scott Pruitt was given access, allegedly at market value, to University of Kentucky basketball tickets in a section that is reserved for ticketholders who donated at least $1 million to the university. Other perks were attached to the tickets, including watching from the players’ entrance as the team entered the playing court. The “market value” apparently was $130 per ticket, paid in cash and there is no receipt. An email from the ill-named EPA Ethics Office approved the purchase in advance in the belief that it would be paid by check.

The seats belonged to Joseph W. Craft III, a coal executive who gave more than $2 million to the Trump presidential campaign. According to the NYT report, Craft met with Pruitt seven times or more during Pruitt’s first 14 months as head of the Environmental Protection Agency. The “or more” results from the fact that the NYT has documents showing that Pruitt and Craft were scheduled to meet on two other occasions but, curiously, “officials would not confirm them.” The known and scheduled contacts occurred at meetings and speeches in Washington, Florida, Kentucky and Georgia.

As discussed at length in the NYT article, Craft has been aggressively pursuing the rollback of environmental restrictions on the coal industry. Pruitt, with the overt support of Donald Trump, has been happy to oblige, including, for example, repealing the Obama instituted Clean Power Plan to reduce greenhouse gas emissions from power plants and stopping enforcement of a rule prohibiting coal-powered plans from dumping toxic metals into rivers. The latter move was sought by a coal industry group on whose board Craft sits.

So, as you and your progeny experience worse air and water pollution and possible cancers and other adverse health consequences down the road, you have Scott Pruitt and Donald Trump to thank.

Returning to the main point of this post, I understand the notion that paying someone market value for an item can be seen as “not a gift” but a mere purchase like any other purchase. Clearly, when you buy something on Amazon, even at a discount from other available prices, no one would rationally argue that Amazon made a gift to you.

However, if you are exploiting a personal relationship with Jeff Bezos, the head of Amazon, who is selling you an item at a market price but it is an item that cannot be bought anywhere else unless you are a person of similar economic standing and advantage as Bezos, that, in my view, is quite another matter. To put the obvious meat on that bone, if Bezos has tickets behind home plate for the World Series, and if Bezos wants something you have or you have the power to deliver or even materially influence on his behalf, it is clear, I suggest, that Bezos would have effectively bribed you by “selling” his World Series tickets to you, even if you paid full price. You could not have bought those tickets in the open market and, even if you could get them on, say, StubHub, it would be most efficient, not to mention friendly, to accept the offer from your pal, Jeff.

Here are the relevant elements of the basic federal bribery statute:

18 U.S. Code § 201 – Bribery of public officials and witnesses

(a) For the purpose of this section—

(1) the term “public official” means … an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof ….;

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

(b)Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official… or offers or promises any public official to give anything of value to any other person or entity, with intent— [bold face emphasis added]

(A) to influence any official act; or

(B) to influence such public official… to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official … to do or omit to do any act in violation of the lawful duty of such official or person;

(2) being a public official … directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: [bold face emphasis added]

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

(3) ….

(4) ….

shall be fined under this title or not more than three times the monetary equivalent of the thing of value whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

(c)Whoever—

(1) otherwise than as provided by law for the proper discharge of official duty—

(A) directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official … [bold face emphasis added] or

(B) being a public official … otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;

….

 (3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial, hearing, or other proceeding, or for or because of such person’s absence therefrom; [bold face emphasis added]

shall be fined under this title or imprisoned for not more than two years, or both.

In case you’re wondering, 18 U.S, Code § 641 defines “value” as “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” The Department of Justice describes the two core sections of 18 U.S. Code § 201 as “bribes” versus “gratuities.” The critical difference is the lesser, but still significant, penalty for a “gratuity.”  https://bit.ly/2p2S0nU

I cannot claim expertise in the field of bribery of federal officials, but on the face of it, I do not understand how the sale, at any price, of restricted access tickets to a sports event is not the offer and acceptance of a thing of value and, in the obvious circumstances of this case and the relationship between Pruitt and Craft, therefore a bribe under 18 U.S. Code § 201. Add this to the long list of questionable actions by Pruitt, which have led to at least a dozen investigations into his conduct. I invite anyone with expertise in the area to enlighten me regarding how the sale of highly restricted sports tickets to the head of an agency that is being solicited to undertake acts in favor of the seller’s interests is not a bribe.

 

United Airlines Does Something Right

3 Replies

People familiar with my professional history of conflict with the airlines may find it surprising that I would come to the defense of the CEO of United Airlines in its latest dustup. But here I go.

Oscar Munoz, the UAL CEO, was verbally challenged by a person described as an “activist investor” at its recent annual shareholders meeting because the airline, following the Parkland Florida high school massacre, ended its discount program for members of the National Rifle Association. The “investor’s” objections were reported by, among others, inc.com at https://bit.ly/2s4fQ1h and Bloomberg at https://bloom.bg/2s8mnaw.  the story line being that some/many UAL employees were equally unhappy with Munoz’ statement that the NRA decision was made for “personal” reasons, namely, that a child of a United pilot had been killed in the Parkland shooting.

That decision was latched onto by the objector who was in fact not just a “lawyer with” the National Center for Public Policy Research but was in fact NCPPR’s General Counsel. His employer is a “conservative think tank” in Washington parlance, a tax-free organization, contributions to which are tax-deductible, despite its mission statement of

communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems. We believe that the principles of a free market, individual liberty and personal responsibility provide the greatest hope for meeting the challenges facing America in the 21st century.

 The NCPPR was set up in 1982:

to provide the conservative movement with a versatile and energetic organization capable of responding quickly and decisively to fast-breaking issues. Today, we continue to fill this critical niche through a top-flight research and communications operation driven by results and the bottom line. In the 1980s, The National Center helped change public opinion through vocal national campaigns aimed at supporting Reagan administration initiatives concerning the USSR, arms control, Central America and human rights. [emphasis added]

https://nationalcenter.org/about/

Before going further, I note for the record that I am one of those very liberal people that recognizes that the true and authentic conservative point of view regarding economics, the role of government and similar things is a responsible, if usually erroneous, alternative to the views of liberals who think like I do. Many intelligent and thoughtful people share some or all of the conservative philosophy and make rational arguments in support of that viewpoint. The sitting president and most of his enablers in the White House and Congress do not satisfy that definition, but that is for another day.

Now that my bona fides are declared, I return to the matter at hand. I understand the point of view that the primary job of a private business is to produce profits from its activities as a reward to risk-taking shareholders that have provided it with capital through stock purchases. But producing profits for shareholders is not, I suggest, the only function of private businesses which, broadly speaking, enjoy the benefits of public services, the protections of laws designed to prevent larger firms from conspiring against them, etc. They are permitted, sometimes subject to regulation, to consume vast amounts of public space, to exploit resources belonging to the entire nation and generally benefit from government support of their franchise. While there is tension about the amount and nature of regulation, there is, in short, a public dimension to the business of private enterprise that must be accounted for in any rational view of the role of corporations in American life.

So, what was the beef with United’s making a policy decision regarding how it would manage the discount component of its business? According to the reports, the NCPPR attorney said:

“I suppose you are ignoring the fact that the NRA had nothing to do with what happened in Parkland …. But, hey, congratulations on your virtue signaling. What exactly did investors get out of that?”

At least two observations are warranted.

First, the asserted “fact” that the NRA had “nothing to do with what happened at Parkland” assumes away the issue of responsibility for Parkland as if the truth of the matter were handed down on stone tablets. In reality, of course, a good case exists, and has been made repeatedly, that the gun culture promoted by the NRA and NRA’s success in preventing even the study of gun impact issues are elements in a direct line to the events at Parkland and the other mass shootings before and since. The NCPPR should save its smug presumptuousness for something else. The known facts about gun violence do not support their protestations of innocence.

Second, there is, of course, a potentially legitimate debate about whether private business corporations should ever do or say anything related to “political” issues. At least two points are relevant here.

One is that there is an inherent inconsistency between “keep businesses out of politics” and the “the free market rules and corporations should be able to do whatever they want, including risking the ire of customers and stockholders when they believe the public or their private interest warrants it.” Those positions are inconsistent.

Second, there is another fundamental structural inconsistency and incoherence in the “conservative” position that private business should stay out of politics. Many private businesses are perfectly fine being in politics as long as no one knows what they are doing, as in their role in funding SuperPacs under the aegis of the Supreme Court’s opinion in the Citizen’s United case. And when “conservative values” are at stake, as they allegedly are when NFL players kneel during the National Anthem, the Grand Ole Party is right there to tell those businesses to actively support the “conservative” position by punishing those players. Or else. So much for keeping businesses out of politics.

The inc.com article says that, based on emails received, the employees are against the NRA discount decision by 4 to 1, one retiree is quoted as saying that the “[A]irlines are very leftist.” That will come as a great shock to the airline managements that spend so much time and treasure in Washington railing against any form of regulation designed to protect consumers from deceptive price advertising. That is a subject for another day also, but the notion that the airlines are part of a left-wing political cabal is laughable. I will now laugh.  Then I’ll cry at the staggering ignorance that pervades our political life and public discourse.

A trend now clearly exists toward corporate responsibility and, whether the NRA and its enablers approve or not, the practice is likely to have staying power over the long term. See, for example, “8 Corporate Social Responsibility (CSR) Trends To Look For In 2018,” by Susan McPherson in Forbes, https://bit.ly/2GKeFJ7. Even some Republican businessmen who supported Trump in the past are now threatening to pull donations if the DACA program is not extended. https://politi.co/2klgIui

The NRA is, once again, on the wrong side of history on the issue of businesses in politics. UAL’s CEO Munoz has some good company and should … dare I end with this … stick to his guns.

Most important Book You’re Not Going to Read This Year

Leave a reply

I have just finished reading Can It Happen Here? Authoritarianism in America, edited by Cass Sunstein. Sunstein is the Robert Walmsley University Professor at Harvard University where he founded its Program on Behavioral Economics. He is the author of, among many others, Impeachment, A Citizen’s Guide, which you are also not going to read, but should.

The contributors of the essays in this stunning book are mostly distinguished law professors from Harvard, Yale, Chicago, Columbia, NYU and Duke. These people know whereof they speak.

And speak they do, sometimes a bit turgidly as law professors are wont to do, but also brilliantly and incisively addressing the sources of risk that the United States could lose its hold on democracy. It’s important to understand that this is not an anti-Trump screed, although, as you might expect, Trump’s conduct as president figures prominently in many of the essays. The reason is that his behavior is in the classical line of actions taken by political strong men who have undermined democracy in their countries. It’s also important to remember the United States has some blood on its own hands from past episodes of authoritarian behavior induced by crises such as the attack on Pearl Harbor and the 9/11 attacks on the World Trade Center.

The threats to American democratic institutions, free press, elections and other features of a free and open society in which we have grown up are real and immediate. While some of the essays are guardedly optimistic about the resiliency of our Constitution and institutions to resist the imposition of an authoritarian regime, you will find cold comfort in most of the essays. They are, along with other recent works like Elaine May’s Fortress America – How We Embraced Fear & Abandoned Democracy, compelling, history- and fact-based accounts of how democracy can fail, and may actually be failing, under the relentless pressures of an autocratic president supported by a single-party Congress. These are conditions not contemplated by the Founding Fathers whose Constitution, as brilliant as it is, may lack sufficient safeguards against one-party rule that does not respect the values on which that document was based.

If you are serious about understanding what is happening in American politics today, this book is a must-read.

To give you a taste, the chapter entitled “Constitutional Rot” observes that “These four horsemen — polarization, loss of trust, economic inequality, and policy disaster — mutually reinforce each other.” Further, “In an oligarchical system, regardless of its formal legal characteristics, a relative small number of backers effective decide who stays in power.”

In the chapter entitled “Beyond Elections: Foreign Interference with American Democracy,” Samantha Power discusses how non-mediated social media opened the door to Russian influence in U.S. elections. The chapter “Paradoxes of the Deep State” addresses little-known history of the so-called “Deep State” with surprising observations about the “leaks” in the Trump administration. Then, the chapter “How We Lost Constitutional Democracy” sets out grave and chilling warnings about the erosion of democratic norms and the limits of the Constitution as an obstacle to the destruction of democracy as we know it.

As I said earlier, this book is serious stuff and not an easy read. Yet the issues analyzed in it are critical to a deep understanding of what is happening and the extent to which we can “count on the Constitution” as a defense against loss of freedom and democratic process.

When you are finished being frightened to death, I continue to urge everyone to read On Tyranny-Twenty Lessons from the Twentieth Century, by Timothy Snyder, a measly 126 pages. Finally, if you want to dig deeply into some of the mysteries of the behaviors of voters whose conduct you consider self-defeating and borderline insane. I commend to you two tomes that I guarantee will open your eyes to ideas you never dreamed of: Thinking, Fast & Slow, by Nobel Prize winner Daniel Kahneman, and Behave – the Biology of Humans at Our Best and Worst, by Robert Sapolsky [skip the details on endocrinology, unless you really dig that sort of stuff].

To conclude, for now, I believe the following to be more likely true than not:

1. Trump’s election was unlawfully procured through interference by, and his collusion with one or more foreign powers; the more he fumes and fulminates against this idea, the more likely it seems to be true;

2. Trump has violated Article II, Section 3 of the Constitution by failing to “take care that the laws be faithfully executed;”

3. Trump has violated the emoluments clause of the Constitution, Article I, Section 9;

4. Trump is guilty of obstruction of justice, which qualifies as a “high crime” or “misdemeanor” under the Constitution, Article 2, Section 4, and, in the specific circumstances, is guilty of treason as well;

5. Trump and members of his family and officials appointed by him, along with Republican members of Congress, have engaged in a conspiracy to conceal evidence of crimes by them and others and to prevent the full investigation and prosecution of such crimes by appropriate government authorities.

I also believe the following truths are now indisputable:

1. Democratic norms are under active siege by a president who neither understands nor cares about such norms;

2. While the prospect of indictment of the president as a result of Special Prosecutor Mueller’s investigation is highly appealing, there is little chance that such a move is going to occur soon and it will, in any case, provoke a lengthy constitutional crisis that will end up in the Supreme Court and therefore not afford a near-term solution to the governance crisis that confronts the nation;

3. The most immediate and most important defense against the oligarchical theocracy, or the theocratic oligarchy, if you prefer, that the president, vice president and Republican Congress want to establish, and to some degree have already established, is for the Democratic Party to take control of Congress in the 2018 elections;

4. Democratic control of both houses of Congress would immediately create an insurmountable bulwark against further destruction of democracy by the administration and lay the framework for removal and prosecution of the Trump gang and its enablers;

5. Trump’s sycophantic supporters are preparing to defend him with aggressive voter turnout and contributions of huge amounts of money. Nonetheless, Democrats must overwhelm them at the polls if we are to turn the tide against the fascist practices of this administration. If we fail, we will face two more years of entrenchment, destruction of the independence of the judiciary and undermining of the free press. The loss of those two elements of the Constitution’s system of checks and balances will make it very difficult, perhaps impossible, to turn back the tide. It’s 2018 or nothing.

6. Every American should view this situation as a grave threat to their well-being and the well-being of their families present and future. It is time for the Democratic Party leadership to start leading politically and for the personal ambitions and agendas of the old guard to yield the floor to the generations that will have the most to lose if the foundations of democracy are not restored. Remember that those who fail to heed the lessons of history are doomed to repeat it.

7. It is time for a game plan that does not repeat the same mistakes that led to the disastrous defeat in 2016. The Republicans know the same things we know about what happened. They have a keen understanding of their political base and how to stimulate it to action on behalf of their agenda. Trump’s base is uninterested in the truth about him or his policies; they have created their own truths in which they choose to believe and nothing is going to change most of them. It is therefore absolutely essential that every potential Democratic vote be cast in every district. There have been a few interim wins in replacement contests, but these are no laurels on which to rest. Democrats cannot afford to give up any seat that is potentially winnable. It’s now or never.

If There Were No TSA — Addendum

2 Replies

Since posting the TSA data on gun recoveries at airports, I continued to look for evidence that TSA systematically and aggressively addresses the guns-in-carryon-bags issue with prosecutions of offenders. I could find no such evidence on TSA’s website or in news stories about various incidents at airports, including those involving loaded and chambered weapons. TSA’s approach appears to be to accept the excuse that “I forgot the gun was in my bag” or “my husband must have put it in there without telling me.” They do confiscate weapons, though not in all cases, but do not seem interested in actually imposing legally authorized punishments. TSA instead continues, thorough its blog posts and media releases to remind travelers about the rules governing transport of guns on aircraft. See, for example, https://bit.ly/2qUYVNw. Meanwhile, finding such weapons at the checkpoints leads to delays of other passengers while the incident is resolved.

This is a curious policy, at best, given that the Customs agents at airports appear to have a much less lenient approach to people “forgetting to declare” things like food items. Indeed, in one recent case, a woman has been fined $500 for failing to declare an apple provided by Delta Air Lines and contained in a plastic package bearing Delta’s logo. She placed the apple in her carryon while on the aircraft, planning to eat it on the next domestic leg of her flight home. Views may and do differ about whether this type of incident warrants a huge fine and possible loss of Global Entry status, but the real issue, in my view, is the disparity in practice between TSA and Customs & Border Patrol, in light of the potential risks.

Moreover, it is apparently the case that enforcement of the carryon restrictions ultimately depends on state or local law governing the possession of firearms. See, for example, https://bit.ly/2HV4Da7 and https://on-ajc.com/2FavsUZ. I don’t understand why this would be true given that the offenses occur in federally controlled airport zones and violate federal regulations, which, under the Supremacy Clause of the U.S. Constitution, control over conflicting state/local laws. There are apparently some exceptions, like New York, but, of course, the pro-gun crowd are pretty unhappy about anything that they think smacks of restricting their “rights.” See https://fxn.ws/2usKvZI.

I conclude more or less where these posts began. The other day a passenger who had allegedly touched a female passenger inappropriately refused to deplane peacefully when ordered to do so and the police had to use a stun gun on him multiple times to subdue him. https://bit.ly/2HrJUcQ. Imagine how this might have gone down if this passenger had possessed a loaded pistol in his carryon bag.

If There Were No TSA …

2 Replies

Everyone seems to have a “security checkpoint story,” either something they experienced or an incident they observed. This has led to calls for the abolition of

the Transportation Security Administration (TSA), privitization of the airport security process and other “solutions” to preventing the use of an aircraft as a terrorist weapon, all of which approaches are intended to reduce the inconvenience and, occasionally, humiliation that occurs, especially when one is running late for a flight.

The problem may be getting worse. TSA announced a few weeks ago that it had finished rolling out enhanced screening of carry-on bags at airports across the country. https://bit.ly/2H3HMvR. The new process, according to TSA, requires travelers to:

place all personal electronics larger than a cell phone in bins for X-ray screening in standard lanes. In addition … TSA officers may instruct travelers to separate other items from carry-on bags such as foods, powders, and any materials that can clutter bags and obstruct clear images on the X-ray machine. Travelers are encouraged to organize their carry-on bags and keep them uncluttered to ease the screening process and keep the lines moving.

Somewhat curiously, I haven’t heard much about the new system causing problems, despite its having been started last summer. Perhaps, contrary to the teachings of experience, air travelers are indeed “organiz[ing] their carry-on bags and keep[ing] them uncluttered to ease the screening process and keep the lines moving,” as TSA has asked.

The TSA Administrator said that “these enhanced screening measures enable TSA officers to better screen for threats to passengers and aircrew while maintaining efficiency at checkpoints throughout the U.S….Our security efforts remain focused on always staying ahead of those trying to do us harm and ensuring travelers get to their destination safely.”

Well, they better had, because, as a result of the bizarre gun culture that pervades  American society, the greatest danger appears to come, not from terrorists, but from ordinary air travelers packing heat, ready to defend themselves and others from any threat, real or imagined. I say this because it is reliably reported that in just the first week of April, TSA discovered 64 firearms in carry-on bags at airports around the United States. Of those weapons, 52, or 81 percent, were loaded and 13, or 20 percent, had a round in the firing chamber.

This, despite the fact that TSA may assess civil penalties of up to $13,066 per violation per person for carrying prohibited items on an aircraft. https://americansecuritytoday.com/tsa-finds-63-firearms-carry-bags-last-week-learn-videos/ This, despite the fact that incidents of “out of control” passengers seem to be on the increase.

Were it not for the vigilant screening efforts carried out by TSA, and assuming the first week of April was typical, there is a chance that someone on your flight will be armed with a pistol with live rounds in the chamber, ready to shoot at … what? A provocation by another passenger? A rude flight attendant? At altitude, in a pressurized cabin.

Think this is  overstatement? In fact, the year 2017 set a record for weapons discoveries; according to TSA records:

  • 5 million (771,556,886) passengers traveled through 440 federalized airports in 2017, a rate of more than 2 million a day;
  • A record setting 3,957, firearms were discovered in carry-on bags, an average rate of 76.1 firearms per week, or . 10.8 firearms per day;
  • 3,324 (84 percent) of the total firearms discovered were loaded; and 1,378 (34.8 percent) of the total had a round chambered;
  • The most firearms discovered in one-month – 31 – were in August at the Hartsfield–Jackson Atlanta International Airport (ATL), but in total, firearms were intercepted at 239 airports.
  • The 2017 total represents a 16.7 percent increase in firearm discoveries over2016’s totalof 3,391.

https://www.tsa.gov/blog/2018/01/29/tsa-year-review-record-amount-firearms-discovered-2017

There’s more. The 2017 cache of intercepted weapons went well beyond mere pistols. A sample of other items includes:

  • A checked bag with an ammunition box with three live ground burst simulators, two live M83 smoke grenades, and one inert practice grenade — Palm Springs International Airport (PSP).
  • A live flashbang grenade in a carry-on bag — San Diego International Airport (SAN).
  • A live smoke grenade — Raleigh–Durham International Airport (RDU).
  • A one-pound bottle of gun powder in a checked bag at the Ketchikan International Airport (KTN).
  • Five one-pound bottles of gun powder in a checked bag — Boise Airport (BOI).
  • A ten-ounce container of gun powder in a checked bag — Salt Lake City International Airport (SLC).

This, my fellow Americans, is one small part of the regime we have allowed to develop in our country. So, next time you are tempted to complain about the security process at the airport, try to remember what you have read here. I don’t like going through security any more than anyone else, but without it, we’d all probably be killed by some “patriot” with a Glock 9mm in his briefcase.

How Long Does It Take to Figure Out Equal Treatment?

Leave a reply

This has been a rough stretch for Starbucks, what with the arrest in Philadelphia of some black men who hadn’t ordered anything while waiting for a friend to arrive. I have done this more than once myself, back in the day before Starbucks did away with Sumatra in favor of “blonde” coffee, whatever that is.

I had written on Twitter that Starbucks needed to do more than issue the customary “equality is one of our most important values” talking point. I was impressed when the company announced it was closing operations across the country for a day to engage in serious training of its entire staff, including awareness of implicit bias and other factors that can, without one’s conscious awareness, influence how we react to people different from us in some particular.

At the same time, I was aware of the earlier announcement by Starbucks that it had “reached 100 percent pay equity for partners of all genders and races performing similar work across the United States.” https://news.starbucks.com/news/starbucks-pay-equity-for-partners That same announcement stated, however, that the process had taken ten years to finish. Flush with that news, the company Chief Partner Officer said that it would work “with deliberate speed” to close the gender pay gap worldwide.

I am seriously puzzled as to how a company working with “deliberate speed,” a phrase borrowed from the Supreme Court decision in Brown v. Board of Education wherein the Supreme Court unanimously held that “separate but equal” education was unconstitutional. The Court directed the lower federal courts to enforce its decision “to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

The phrase was ultimately understood to mean “slow,” and that was indeed the pace of integration in the face of massive resistance by whites, especially in the South.  A fascinating discussion of the background, internal discussions and aftermath of the Brown decision can be read at https://ampr.gs/2HcERkx, including the etymology of the phrase “with all deliberate speed.”

Desegregating schools was a massive culture change for the entire nation, overturning practices that had persisted from the very origins of the country. Starbucks is just one company. It has records of who does what and what they are paid. Doling out coffee and tea is no doubt more complicated than I imagine, never having been a barista myself, but it is certainly not equivalent in complexity to desegregating the educational system of an entire country. The Starbucks announcement of its achievement goes on at great length to discuss how complicated the process was. Maybe so, but it reads somewhat like a set of excuses for a ten-year process that could and should have been accomplished much faster.

Setting aside my perhaps overly cynical reaction to the pay-gap announcement, Starbucks gets kudos for at least reaching the goal and committing to expand its scope in the near future. Meanwhile, we can only hope that it does not take another decade to convince its employees that treating black people the same as others is absolutely necessary, starting now.

 

 

Scott Pruitt – Destroyer of Worlds

Leave a reply

Do you know how many soldiers make up a platoon in the U.S. Army? While answers vary by source, there appears to be consensus around a size of 16 to 60 soldiers. Thus, the security detail demanded by Scott Pruitt, Donald Trump’s appointee as head of the Environmental Protection Agency, numbering at least 20 is the equivalent of having a full-time platoon of American soldiers for “protection.” Exactly what Pruitt is so afraid of remains an open question.

On the one hand, we have Pruitt stealing, in effect, from the public through a multitude of unjustifiable first-class trips, installation of a “secure phone booth” costing more than $40,000, and other over-the-top charges for his office rework. On the other hand (or is it the same hand?), we have a man who, before his appointment by Trump was firmly entrenched as a public official in Oklahoma with the industries seeking to exploit the environment for private gain, now using his federal office to further reward those same industries and companies.

Thinking of Pruitt’s tenure as EPA head brings to mind Robert Oppenheimer, a famous physicist who led the Los Alamos Laboratory and is credited, with others, as being the “father of the atomic bomb” for his role in the World War II Manhattan Project that created the first such bomb. After observing the test firing in New Mexico, Oppenheimer later said it drew to his mind the words from the ancient Hindu text, Bhagavad Gita, “Now I am become Death, the destroyer of worlds.”

Pruitt, of course, appears to know little of science and to care nothing about it in any event. His worldview appears to be that Earth is here for one reason, the unlimited exploitation of its resources by mankind, through the vehicles of mining, logging, drilling, whatever it takes and wherever is desired. Thus, in the space of a little more than a year, Pruitt has:

  • spent millions on his personal around-the-clock security, including salaries ranging from $103,000 to nearly $162,000
  • slashed the working budget of EPA by about 30 percent;
  • claimed that threats against him have sky-rocketed, but there are no public reports of arrests or prosecutions;
  • flown on charter flights and first-class flights that included putting his security detail in first-class, with the excuse that being in first-class means they can exit the plane faster; when paying for his own travel, Pruitt flew coach;
  • rolled back auto fuel-efficiency rules;
  • promoted Trump’s withdrawal from the Paris climate accord;
  • directed payment of extraordinary bonuses of 30 & 52 percent to two close aides who joined him from Oklahoma;
  • taken adverse job actions against professional agency staff who questioned his spending/travel practices;
  • insisted that vehicles in his entourage use lights & sirens when moving through Washington streets to attend dinners;
  • rented a room from the wife of a lobbyist with business before the EPA;
  • denied, contrary to the evidence, that he authorized the excessive raises or that he approved the $43,000 installation of a sound-proof booth in his office, including biometric door locks and other security features more appropriate for a banana-republic dictator;
  • incurred frequent high-cost luxury accommodation charges, seeking approval after-the-fact;
  • accepted expense reimbursements from groups with business before the EPA;
  • rescinded, often with limited process, rules protecting the water, air and national parks, allowing uncontrolled exploitation of unique national resources without regard to the consequences.

In light of those and other legal/ethical lapses, the Washington Post has called for Pruitt’s firing, but Trump continues to support him because he is executing Trump’s plan to undo every environmental protection he can find. If there’s one thing Trump hates as much as exposure of his own corruption, it’s Obama-era environmental regulations. He wants them all gone and Pruitt is just the man to do his, and the exploitative industries’, bidding.

Pruitt is on par with the likes of Ben Carson, Trump’s appointed head of the Housing & Urban Development agency, for which Carson had zero qualifications, and Ryan Zinke, Trump’s appointed Secretary of the Interior, who repeatedly calls himself a “geologist,” based solely on having a college major in geology 34 years ago, and whose principal goal appears to be reducing the size of national parks so they can be exploited for minerals, oil and gas. Scott Pruitt sees his charge as clearing the way for unregulated commercial exploitation by private firms of the nation’s precious natural resources, including its clean water and air.

It is extremely unlikely that such a person would have been allowed to continue in office overseeing an agency whose legally established purpose is the exact opposite of Trump’s and Pruitt’s agenda. The Republican controlled Congress, however, continues to tolerate this situation and is thus complicit in the crimes against nature and humanity that this administration is perpetrating in the interest of enriching already wealthy corporations and individuals.

You have read it here before, but it bears repeating. We are facing a grave threat to our well-being as a people and as a country. Absent the bringing of criminal indictments and impeachment against Trump, the 2018 mid-term elections are the next real opportunity to regain the upper hand before it is too late. You should tell everyone you know that is capable of independent thought and reason why they must vote in November for Democrats, and why they must help others in need of assistance in getting to the polls and fulfilling their citizen responsibilities. This is not a drill.

Sources for this post: https://cnn.it/2vlJVOb; https://bit.ly/2J5LRwm; https://politi.co/2qD1hBg; https://wapo.st/2qFXBho; https://nyti.ms/2Eoc7iC;https://bit.ly/2JVc1De; https://bit.ly/2qfdACU; https://bzfd.it/2J6g0LZ; https://nyti.ms/2H40tiY; https://politi.co/2viE7F0.

 

NRA, Fear Emma Gonzalez

3 Replies

If you didn’t march with the kids today in the March for Our Lives, the loss is yours. My wife and I participated in New York City, where the turnout exceeded estimates by many multiples. We did not hear the speeches live because the crowd was so large. The starting point was West 72nd Street at Central Park West but we were directed by the police to go to 86th Street before being allowed to turn and join the main group of marchers. If you have not heard Emma Gonzalez speech, witnessed her extraordinary poise and maturity, you owe it to yourself to watch it in its entirety. Here is the link: https://bit.ly/2pBSuz8 Do not turn it off during the long, most extraordinary pause in her address to the assembled marchers.

Emma Gonzalez and her generation are the next great wave of voters. Many are already old enough or will be by the 2018 mid-term elections. They have had all they are going to take of excuses from the likes of Sen. Marco Rubio with his “let’s all get together on a compromise because some people don’t think gun control will be effective.” An overwhelming majority of Americans in poll after poll say that the time for action is now, not some vague point in the distant future. The young people of Emma Gonzalez’s generation and the ones behind them are motivated to compel change through the ballot box and there are many of them. NRA money can’t buy them. They are not afraid of a government takeover or other paranoid delusion spread by the gun lobby. They are afraid of being massacred next week or next month in their schools, like so many of their friends. Yes, NRA, you should fear Emma Gonzalez more than anything else. She sees you for what you are and she, and her friends are going to remove from office the sycophants that have taken NRA money and done its bidding for too long. Time’s up.

Here is a selection of photographs I took during today’s march in New York City. For context, the photos start as the huge group of marchers moves uptown from the 79th Street subway station toward 86th. It is worth noting that the NYPD we encountered were uniformly helpful in answering questions. The “show of force” near the end of the photo set is simply the police trying to move the marchers off of 6th Avenue onto the exit at 44th Street. The pictures close with a chanting session near Times Square where the kids attracted a large crowd of supporters. These amazing young people are not going away.

#MarchforOurLives