Category Archives: Commentary

Trump Calls Comey a Liar – A Most Dangerous Game

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Alternative Title: Rat in a Corner — Who You Gonna Believe?

It didn’t take long for President Trump to dispute the stunning facts set out in James Comey’s testimony on Thursday. Trump’s apparently strong conviction in his assertion that Comey lied under oath (and also has misled Special Prosecutor Mueller by providing him with false information about Trump’s conduct) may give some people pause. Trump even says he will speak under oath about the critical meetings with Comey but stops short of saying that he will stand cross-examination as Comey did.

Is Trump’s assertion another version of “I will definitely release my tax returns?”

I suggest that Trump has flatly disputed Comey’s narrative because he had no choice. Could he conceivably have remained silent in the face of the allegations that he pressured Comey to end investigation of Michael Flynn and lighten up on the Trump-Russia investigation? I suggest that the answer can only be ‘no.’ Trump’s silence would have been construed as acquiescence and that is one thing he cannot afford to do now that the suspicions about his conduct have become fixed.

Still, the question remains: who is to be believed? The answer is Comey and there are multiple compelling reasons for that conclusion.

First, it is not disputed that Trump directed other persons present to leave the room before speaking to Comey. Is there a plausible reason for this other than “I know what I am about to do is wrong and I don’t want witnesses to it?”

Second, Comey says he immediately wrote down detailed notes of what had transpired. This was done on a “classified computer” and thus can be verified as to date and time of creation. Comey obviously knows that. Is it plausible then to believe that he created a contemporaneous false narrative to destroy the President? Bear in mind that Comey’s written testimony before the Senate Select Intelligence Committee was based on those notes and that Comey gave the notes to Special Prosecutor Mueller before testifying?

Third, weeks ago Trump implied in a tweet that he might have “tapes” of the meeting(s) with Comey. Subsequently, he has refused to confirm that such “tapes” exist and his White House staff claims either not to know. After Comey’s testimony, in which he said he would welcome release of the tapes if they exist, Trump has continued to refuse to confirm the existence of the tapes. I suggest that this is a classic Trump negotiating tactic and that he has to be bluffing. Why? Because Trump had to know what actually happened during the Comey meetings and if he had “tapes” that would completely destroy Comey’s credibility and serve as major pushback against the Trump-Russia investigation, he would have released them by now.

Finally, there is the matter of general credibility. Comey has a distinguished career in law enforcement and is highly respected by anyone with a shred of objectivity and, reluctantly, by some who have sacrificed their credibility in support of Trump. Contrast that history with Trump’s history of lies before, during and after his election. There are lists of these all over the Internet, so I will not repeat them here. This comparison is “no contest” – Trump loses.

In the interest of balance, I do acknowledge, as I have in another post, that Comey made some mistakes in handling the Hillary Clinton email investigation, but these are not mistakes of credibility. They were mistakes of judgment. And, of course, there is the fact that the Clinton investigation mistakes worked to Trump’s advantage and may well have pushed Trump over the finish line in 2016. No joy for Trump in this.

Thus far, then, Trump is putting his credibility squarely on the line against Comey. Someone is lying, bigly. This looks like a losing proposition for Trump. Notwithstanding the weakness of Trump’s position, his political base, and the Republican Party co-conspirators and sycophants in Congress, continue to support him. They appear ready to do down with the ship.

From here on, the key for the country is for the Democrats in Congress and the Democratic base, regardless of preferences in 2016 (get over it), must engage in a relentless, all-hands-on-deck resistance to Trump’s agenda. Republicans will not move against Trump unless and until he is both failing as the chief executive of the country and conclusively humiliated as having engaged in obstruction of justice and lied about it.

Trump Obstruction of Justice – Who Decides?

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So far as my research has revealed, one aspect of the James Comey hearing has not been directly discussed. I concede I may be overreacting or over-parsing what was merely a generic statement from Richard Burr (Rep. NC), the Chair of the Senate Select Committee on Intelligence. But if I’m not guilty of those errors, this is a point worth talking about.

When Burr opened the hearing yesterday, he said:

We will establish the facts, separate from rampant speculation, and lay them out for the American people to make their own judgment. Only then will we as a nation be able to move forward and to put this episode to rest.

That, I suggest, is fundamentally wrong. It makes a nice high-minded statement of democratic philosophy, but in the present context, it may reflect an intention to abdicate the true role of the Select Committee.

Certainly, that role includes uncovering, the truth about the connections between the Trump campaign, and possibly Trump himself, and operatives of the Russian Federation and the effects that had on the 2016 election. It also includes discovering whether the President attempted to undermine the investigation of those relationships by making inappropriate and/or unlawful demands on the then-Director of the FBI and, failing to get what he wanted, firing the Director.

The issue raised here is: what happens when the investigation and hearings are concluded? Burr’s statement implies that some vague plebiscite will then occur in which the American people will “make their own judgment” and that will end the entire affair. Of, perhaps, he means the Committee will make a report, which likely will not reveal all the classified information, and then leave it up to the next election to resolve the culpability of the President. If that is what the Chairman thinks, he has seriously misunderstood his Committee’s role.

In fact, there will be no plebiscite on the question whether Trump is guilty of obstruction of justice. While there will be on-going elections beginning this year, continuing through the 2018 mid-terms and on to the presidential election of 2020, none of those will directly judge in isolation whether the President tried to interfere with the investigation into the Russia connection and thereby committed the offense of obstruction of justice. The evaluation of that question belongs in the first instance to the Congress under its authority to impeach and convict the President for “Treason, Bribery, or other High Crimes and Misdemeanors.” U.S. Constitution, Art. II, sec. 4.

Burr’s Committee would play a central role in the impeachment process, as will the corresponding committee in the House of Representatives where impeachment proceedings must begin. U.S. Constitution, Art. I, sec. 2. The actual trial of any impeachment is a matter for the Senate. U.S. Constitution, Art. II, sec. 3. The requirements for impeachment and conviction are high, as they should be, and the penalties for the President are limited because the Founding Fathers were concerned that political maneuvering could be used to interfere with the President’s execution of his duties. It is also true, however, that the President, while given wide latitude in the conduct of the Executive Branch powers, may not commit crimes and assert “I am the President and no one can hold me to account.”

We must remain aggressively attentive to any effort by Congress, in any form, to sidestep its constitutional obligations to address the issues raised about the President’s conduct. If the investigations, including most importantly the independent investigation by Special Prosecutor Mueller, do not uncover wrongdoing, so be it. The President will then be judged at the ballot box on his overall performance. But if the President has committed, as the facts so far strongly suggest, obstruction of justice, that offense against the country must be taken up by the Congress and moved swiftly to conclusion. If the Republicans in Congress are going to look the other way on the President’s transgressions, they too will face the ultimate test in the elections to come.

Comey Testimony – The Bell Tolls ….

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Appointment in Samarra

 A merchant in Baghdad sent his servant to the market.
The servant returned, trembling and frightened. The
servant told the merchant, “I was jostled in the market,
turned around, and saw Death.

“Death made a threatening gesture, and I fled in terror.
May I please borrow your horse? I can leave Baghdad
and ride to Samarra, where Death will not find me.”

The master lent his horse to the servant, who rode away,
to Samarra.

Later the merchant went to the market, and saw Death in
the crowd. “Why did you threaten my servant?” He asked.

Death replied, “I did not threaten your servant. It was
merely that I was surprised to see him here in Baghdad,
for I have an appointment with him tonight in Samarra.”

 This ancient tale appeared as the epigraph to the John O’Hara 1934 novel of the same name. I believe it refers to the unavoidable nature of judgment and the self-destruction of those seeking to avoid it. I was reminded of it today while listening to and watching most of former FBI Director James Comey’s riveting testimony before the Senate Intelligence Committee.

Overall, although I think Comey made some mistakes in handling the extremely difficult situation with which he was faced, I concluded that his narrative of the events was completely credible in virtually every detail. Comey was put in a very difficult spot by the President who was, on the face of it, the elected leader of the government. The decisions he had to make about whom to tell, who he could trust, in an atmosphere of uncertainty and suspicion created by the President’s own conduct, were hard ones. In retrospect, it is easy to criticize some of his choices but the critics are partisans looking to make a case to protect what they wrongly believe is their interest in propping up the President regardless of the cost to the country.

So, while Comey is not perfect, and likely made some mistakes along the way, it will be “no contest” between his credibility and that of the President, who is a demonstrated serial liar and fantasist. The Republicans will score some points along the way to the endgame but, stacked against the malicious conduct of the President, his history of mendacity and the multiple unexplained campaign contacts with the Russians, the game will go to Comey.

Let’s look at a few of the “defenses” suggested by the questions asked by Republican Senators in today’s hearing. One seems to be “you (Comey) didn’t tell the right people what happened, so it didn’t happen,” or, the alternative version of that: “you’re just as bad as he is, so what’s the problem?” To this, I think, the conclusive answer is that Comey told everyone he thought was trustworthy and that should have been notified. “Standing up to the President” was certainly a theoretical option but given the circumstances and the plain intent of the President’s importuning, it is not unexpected that Comey would have been super-cautious in the wake of the President’s prodding.

Finally, on this point, the fact that Comey didn’t object to the President’s face or tell the Attorney General (whom he accurately believed was about to recuse himself from the Russia investigation) does not logically defeat the statement that the President sought Comey’s agreement to an inappropriate and unlawful objective: stopping the Flynn matter and derailing the Russia investigation. Trump later confessed publicly that he fired Comey precisely to interfere with the Russia investigation. Even if Trump, as he asserted, genuinely believed he was a victim of a “witch hunt,” that was no excuse for his action in firing the leader of that investigation.

Another suggested defense was that Trump’s expression of “hope” that Comey would drop the Flynn investigation was just that, an expression of a personal desire, but not a directive. If all you had was a cold transcript of the conversation, that is a spin that could be placed on the words used. But, Comey testified that in the context and circumstances of the request, he took it as a demand for compliance that was totally inappropriate. If Trump had merely wanted to express his belief that Flynn was a “good guy,” he could have done that with witnesses in the room. But he cleared the room instead.

Could he have been more aggressive in his response? Surely, he could have, but it is not implausible to believe that he was indeed truly “stunned” by the unexpected request by the head of the government who had just cleared the room so there would be no witnesses. Instead of “standing up” to the President by challenging him personally, he quickly wrote a memo of what had happened so that there would be a contemporaneous record to support his version of the events. That is powerful evidence of the truth of what transpired, notwithstanding the claims of Trump’s lawyer that Comey’s testimony somehow vindicates the President. If Trump believes that, it is yet another example of how divorced from reality he is.

The third defense I heard was “You’re just mad because he fired you and you’re seeking revenge.” This claim fails on the facts, given that Comey, while still holding his job and having no reason to believe he would be fired, prepared contemporaneous memoranda of what happened in his private contacts with Trump. Comey’s testimony made clear he prepared the memos because he did not trust the President to tell the truth. No surprise there – the chickens have come home, as Trump’s history of lying and distortion returns, once again, to hurt him.

My personal favorite is Speaker of the House Paul Ryan saying that Trump “is new at this” and thus “he probably wasn’t steeped in the long-running protocols that establish the relationships between DOJ, FBI and White Houses. He’s just new to this” and “he is learning as he goes.” Nevertheless, according to the CNN report, “Ryan declined to comment on whether he thought it was appropriate for Trump to ask Comey to drop the investigation into Flynn.” http://cnn.it/2rGgcf4

They can’t have this both ways: yes, the President is an inexperienced neophyte who made mistakes but, no, I can’t say what he did was wrong. If Ryan had any credibility left, he sacrificed it on the Trump altar today.

Then there is White House Deputy Press Secretary Sarah Huckabee Sanders denying that Trump is a liar, flatly challenging Comey’s testimony: “I can definitively say the president is not a liar,” Sanders told reporters during an off-camera briefing at the White House. “I think it is frankly insulting that question would be asked.” http://politi.co/2rQpKCq

I am, of course, deeply reassured by Sanders declaring the President’s veracity “definitively.” Otherwise, we might question her conviction if not her judgment. More seriously, I am also wondering, of course, how she can be so sure of this, since neither she nor Sean Spicer seem to know what is going on at the White House most of the time. When asked, for example, about the existence of a White House taping system that would potentially support an earlier Trump tweet about “tapes” of his interaction with Comey, she said “I have no idea.”

No doubt that is true. White House staff generally continues not to know the answers to basic and important questions about the President’s conduct of the nation’s business. And the truth likely is they don’t want to know. Ignorance may be their only defense to complicity in the attempt to cover-up Trump’s obstruction of justice, as they, perhaps, recall that many of Nixon’s White House staff served prison terms for covering up the Watergate conspiracy.

Finally, there is the astonishing claim by Trump’s personal attorney that Comey violated some “privilege” arising from communications with the President. There is no privilege for obstruction of justice and, in any case, Trump has waived any privilege that might exist by his public comments on Twitter and elsewhere regarding the conversations with Comey. Again, they can’t have this both ways.

 

 

Hello, Darkness, My Old Friend — Where are the Musicians?

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A recent story about Joan Baez speaking with protesters who accused her of betraying soldiers during the Vietnam War reminded me of something that has been nagging me for some time. Where are the musicians? We are locked in a fight for the political and moral well-being of the country but there is apparently no folk-music building around the struggle, no anthem for the truth we seek to find amid the torrent of lies, deceptions and self-dealing with which the Trump administration has disgraced the United States.

Everyone who lived through the ‘60s and the upheaval generated by the Vietnam War will recall the many artists who gave us some of our iconic folk and protest songs that were one of the defining elements of what came to be called the counter-culture. So far, at least, the RESISTANCE to the Trump administration has no such identifying music or musicians, though there are a number of familiar chants associated with the protest marches. There is also, I am told, some rap music that may fit the description of protest anthems but they seem unlikely to become widely known as representative of the broader issues involved in the Resistance to Trump and his enablers.

I, for one, miss the music. The lyrics of the Sound of Silence, the masterpiece by Paul Simon (©Universal Music Publishing Group), seem particularly apropos of our current circumstances:

‘Hello darkness, my old friend
I’ve come to talk with you again
Because a vision softly creeping
Left its seeds while I was sleeping
And the vision that was planted in my brain
Still remains
Within the sound of silence

In restless dreams I walked alone
Narrow streets of cobblestone
‘Neath the halo of a street lamp
I turned my collar to the cold and damp
When my eyes were stabbed by the flash of a neon light
That split the night
And touched the sound of silence

And in the naked light I saw
Ten thousand people, maybe more
People talking without speaking
People hearing without listening
People writing songs that voices never share
And no one dared
Disturb the sound of silence

Fools, said I, you do not know
Silence like a cancer grows
Hear my words that I might teach you
Take my arms that I might reach you
But my words, like silent raindrops fell
And echoed in the wells of silence

And the people bowed and prayed
To the neon god they made
And the sign flashed out its warning
In the words that it was forming
And the sign said, the words of the prophets are written on the subway walls
And tenement halls
And whispered in the sounds of silence’

White House Rejects Then Accepts Ethics Transparency

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Another pointless dispute within the Trump administration appears to have been resolved. It was pointless because, one way or another, the information sought by the Government Ethics Office (GEO) – lists of lobbyists given waivers by the White House to work in the Executive Branch –was going to be discovered and reported. With who-knows-how-many former lobbyists showing up at government meetings and signing off on government documents, sooner or later their identities would have been uncovered and reported. In the meantime, this episode, as with many others, illustrates the propensity of the Trump administration toward secrecy regarding the public’s business that these people are supposedly performing.

The dispute is thusly stated. Eight days after taking office, President Trump signed an Executive Order entitled “ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES” that, among other things forbids, for 2 years from appointment, participation in Executive Branch activities involving “any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” EO sec. 6. If an appointee was a registered lobbyist with the 2 years before appointment, the EO also bars participation, for 2 years from appointment, in “any particular matter on which [the appointee] lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.”

The apparent purpose of this early EO was to show Trump’s commitment to ethics in government and the Executive Branch in particular. However, the broad sweep of the EO is limited by the definitions that apply and create potentially large loopholes. For example, “lobbied” is defined as “to have acted as a registered lobbyist.” EO sec. 2(m). Although “Lobbying activities” has the same meaning as that term has in the Lobbying Disclosure Act,” the EO excludes activities such as “communicating or appearing with regard to:  a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed by the Administrative Procedure Act, as amended, 5 U.S.C. 551 et seq.” EO sec. 2(n). Why such exclusions were necessary is something of a mystery since the Lobbying Disclosure Act, 2 USC sec. 1601, itself contains similar exclusions. Restating those exclusions may be presumed to have had some purpose other than confusion, but, again, this is not clear. In any case they exclude from the EO lobbyists who were hired to engage in activities on behalf of entities that may come before the Executive Branch, including the White House itself, on those same issues.

Moreover, the Lobbying Disclosure Act contains this exception: “The term “lobbyist” means, in English, someone retained to engage is “more than one lobbying contact” but not including “an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a 3-month period.” So, again in English, that means that a “lobbyist” is not subject to the EO at all if work for a particular client represented less than 20 percent of the total time devoted to that client’s interests during any quarterly reporting period, a test that could easily be met by a multitude of true full-time lobbyists with many clients. And, obviously, if one is not a “lobbyist,” there is no need to register as one under the Disclosure Act and there is no bar to working for the White House or one of the Executive Departments on any issue. This seems to leave a gaping hole for conflicts of interest in appearance if not in reality.

On top of those loopholes, the EO itself contains a formal waiver provision enabling “The President or his designee” to “grant to any person a waiver of any restrictions” otherwise contained in the EO. It was those waivers that the GEO wanted to see and that for some time the White House refused to disclose. After exchanges of challenging letters between the White House and GEO, the White House relented.

The Obama administration routinely released waiver information for similar actions from a restrictive policy on hiring of former lobbyists for Executive Branch work, but, for reasons that defy understanding, the Trump administration initially declined to follow suit. The objection to the jurisdiction of GEO seems absurd on its face and a needless resistance to transparency, another self-inflicted wound, in keeping with a general tendency of this administration to work in the shadows. And another reason for the electorate to distrust the motives of Trump and his enablers.

The Black Hole of Trump Politics

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Since the 2016 campaigns, when CNN and other mainstream media began to cover every move and utterance by Donald Trump, his role in American politics has served as a black hole in the national and global space. “Black Hole” is a term of science referring to an area in space with such large gravitational power that nothing, not even light, can escape.

Looking at Trump’s influence, no matter how much information goes in, the truth does not come out. Trump repeatedly demonstrates his lack of finesse, , incoherence, ignorance of history, ego run wild, failure to grasp science and lack of empathy for anyone other than the very, very rich. His silence about the attack by Erdogan’s Turkish guards on peaceful American protesters in the nation’s capital, filmed and analyzed in detail by the New York Times, speaks volumes. The amount of smoke surrounding the relationship between the Trump campaign, and possibly Trump himself, and the Russian government has been met not with disclosure, but with further dissembling and resistance of open inquiry. If, indeed, Trump or his campaign with his acquiescence colluded with the Russian government to influence the 2016 election, he will go down in history as a traitor to his country.

Still, the brightness of the Trump star continues to overshadow everything around him. And his political base for the most part continues to see him as they see themselves, victims of some vague conspiratorial forces that have ignored them too long. So far, at least, they appear to be immune to his demonstrated record of hundreds of lies, gaffes and bungled policy initiatives that will adversely affect those very same voters. They say, “pay no attention to what he says, only what he does,” but when he fails to do anything, they say “it’s not his fault; it’s the Democrats/liberals/other offensive names” or “they had it coming” in the case of provoked violence against protesters. His base seems to have accepted his condemnation of the free press whom he decried as “enemies of the people.”

Trump’s base appears to reject out of hand multiply verified reporting by the likes of the Washington Post, New York Times, and, yes, the Wall Street Journal. They scoff at the critiques of notable, thoughtful conservative writers like Bill Kristol and, yes, sometimes even George Will, among others. They prefer to get their information from wacko right-wing websites spewing daily conspiracy theories and Fox News which just makes stuff up to suit its unhinged narrative. The cult-like worship that this implies is a dangerous sign in an environment in which the president, along with the current majority party, aspires to authoritarian approaches to governance.

So, as we approach the midpoint of Trump’s first year in office, his substantive political agenda has largely failed: in courts finding his actions unconstitutional or in Congress unwilling to swallow, so far, his attempts to destroy the health insurance system. Neither of those major fights is settled, however, and there remains the so-called “tax reform” plan to confer more tax breaks on the very wealthy at the expense of everyone else. And his budget contains, among other offenses, a $2 trillion error that the administration says was either (1) intentional (?!?) or (2) offset by economic stimulation that most respectable economists have labeled “magical thinking.”

To use a horse-racing metaphor, we are not yet in the home stretch to the 2018 mid-term elections, but the political landscape over which the battle will be fought is taking shape. The Democratic Party has joined the rest of us, bellowing at Trump’s outrages which come virtually every day, sometimes every few hours, but with no overt strategy, or evident process to create a strategy, for retaking control of the House of Representatives in 2018. The party is in danger of just becoming the Party of No, displacing the role that the Republicans occupied during the Obama years. There is a lot of name-calling in places like Twitter and Facebook, but name-calling is not a winning strategy. Nor, I suggest, is a winning strategy to put forth a politically-inexperienced folk singer with personal/financial issues against a millionaire (I refer to the recently lost election for a vacant House seat in Montana). If that is the best the Democratic Party can do, we are in for rough times ahead.

Judging from my remote outpost, there appears to be a general consensus, loosely speaking, that the Democratic Party should focus on getting the vote out from its traditional base, what unperformed in 2016, rather than trying to persuade the Trump base to accept the mistake they made and return to voting Democratic. This may indeed be the right approach, though I would like to see more studious and sophisticated thought and analysis of how it might be possible to reverse the mindset of Trump’s base. It is most troubling to think that a huge part of the electorate is to be largely ignored because it is believed they are too ignorant to be reached.

There is a lot of talking and “issue analysis” going on in the multitude of advocacy groups that have surfaced in the wake of the 2016 debacle. It feels good to know that thousands of people participate in these calls, which are no doubt monitored by the Republicans, but while talking about what we agree on and on “issue positions” serves a purpose, the Democratic Party leadership needs to stop obsessing about every crazy move or statement from Donald Trump and create a longer-term strategy for defeating the Republicans in 2018. In the meantime, if Trump is as venal and craven as many of us believe, and we get a bit lucky, the Russia investigation will lead inexorably to his impeachment and removal from office. But that is a long-term proposition and far from certain.

Right now, and for the foreseeable future, the Democratic Party must create a vote-generating machine of historical proportions and unprecedented power and focus. It must learn to communicate with the various audiences it must induce to action, not just in protests, though they must continue, but at the ballot box. I do not suggest that Democrats communicate like Trump did but they must incorporate modern theories of communication in messaging and add them to the usual ten-point programs frequently dominate Democratic discourse.

The supporters of Bernie Sanders and fringe candidates who have no chance to win anything must awaken to the reality that politics doesn’t always give us the choices we want, but it does give us the choices we have to make. Not voting for the Democratic Party candidates in 2018 will be tantamount to abandoning your country in its greatest hour of need. You wouldn’t do that if the country were under physical attack from an adversary like Russia, but there is little difference between shying from that fight and failing to vote for candidates committed by experience and qualifications to meet the nation’s challenges with regard to all of our citizens. The time to get woke, to borrow from popular vernacular, is now.

4th Circuit Decision on Muslim Ban — Excerpts

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Since most of my readers will not suffer the ordeal of reading the entire 205 pages of the 10 to 3 decision issued by the 4th Circuit Court of Appeals in International Refugee Assistance Project v. Donald J. Trump, I have decided to make things easy for you by setting out my favorite quotations from the majority opinion and a portion of one concurring opinion. Obviously, I have been highly selective. The majority opinion is remarkably detailed and thorough, hard slogging even for a lawyer. Unlike the government, I freely admit that I am discriminating in favor of the plaintiff-winners in the case.

For context, the case was heard by the Chief Judge, and 12 of the remaining 15 judges on the court. The three dissenting judges were George H.W. Bush or George W. Bush appointees, but one of the majority on the decision was a George W. Bush appointee as well.

Here you go:

“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

….

“The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”

….

“… when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures Plaintiffs and in the process permeates and ripples across entire religious groups, communities, and society at large. When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with religion “tends to destroy government and to degrade religion,” id., encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group.”

….

WYNN, Circuit Judge, concurring:

“Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination. We have matured from the lessons learned by past experiences documented, for example, in Dred Scott and Korematsu. But we again encounter the affront of invidious discrimination—this time layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their nation of origin. Laid bare, this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims. Such discrimination contravenes the authority Congress delegated to the President in the Immigration and Nationality Act (the “Immigration Act”), 8 U.S.C. § 1101 et seq., and it is unconstitutional under the Establishment Clause.”

 

Trump Presidency in Emergency Room

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“Doctors” are not sure of survival. According to attending “physicians,” “The Trump presidency is on life support due to numerous self-inflicted wounds, compounded by an unrelenting history of lying that has left the President and his enablers lacking essential credibility to repair the damage. The most serious recent damage includes (1) the firing of FBI Director Comey, (2) the release of code-level intelligence to the Russians, (3) the effort to intimidate the fired FBI Director by mentioning, but refusing to prove, the existence of “tapes” of Trump-Comey conversations in the White House and now (4) the report that Comey prepared a contemporaneous memo reciting an overt attempt by Trump to ask Comey to drop the FBI investigation of Michael Flynn.”

A “doctor,” who asked not to be named so he could avoid being attacked by Trump’s bodyguard, noted, “This all reminds me of another patient we had here, many years ago. He kept saying “I am not a crook” and he too had a large family of supporters that eventually abandoned him as the evidence that he was a crook mounted.  He had no insurance because his credibility was also in the tank by then. Trump has exhausted his insurance by lying remorselessly throughout his campaign and since being inaugurated. Trumpcare will be no help. The president is in the high-risk pool now and even he can’t afford the premiums. The body politic can only withstand so much lying before it begins to fail. We may have reached the point of irreversible decline here.”

The hospital’s resident chaplain reportedly went to the hospital chapel and found Trump’s enablers on their knees praying for divine guidance and salvation. He said, “I heard a voice from the heavens whispering softly, “Here is the answer to your prayers: impeach him.”

EPA Docket on Re-Evaluating Regulations Is Open Through Monday

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The Environmental Protection Agency docket in which the agency will carry out Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” is open through the end of Monday, May 15. To file comments, go to: https://www.regulations.gov/document?D=EPA-HQ-OA-2017-0190-0042. It is a simple process. As of this writing, 50,557 comments have been filed. You can see them by clicking on the Open Docket Folder link. Most are very short and filed anonymously. One of the reasons for the anonymity is that the online comment forms do not expressly ask for identification. They used to do this routinely but not in this case.

In any event, I have not read all of the comments, obviously, but it’s a fair guess that the vast majority are from individuals arguing that the environmental regulations were adopted for good and sufficient reasons to protect the air we breathe and the water we drink and the ecosystem on which life on the Earth depends for its diversity and survival. Whether these comments will have any influence remains to be seen, but it is certain that if the people do not speak up, the Trump administration is simply going to roll over us.

Here is the comment I filed, shorter than I’d like but time constraints being what they are, this is all I could do. If you are inclined to file, feel free to echo my thoughts. It would be best not to simple repeat them, however, as EPA will ignore anything it believes is a “mass mailing” input. Or just read a few of the other public comments and say what you believe. Let’s not let the administration eviscerate the environment without putting up some resistance. Here is what I filed:

“This process is designed to fulfill a political agenda rather than being a science-based re-evaluation of regulations that have had some demonstrable unintended effects. It is therefore a misguided exercise. Undoing environmental regulations that were adopted after notice and hearing under the Administrative Procedure Act requires similar procedural processes and safeguards, including cost benefit analyses published for public evaluation and input before action is proposed and again after specific actions are proposed with stated rationales and science-based evidence. Any program designed to change regulations that is based on denial of the reality of climate change is inherently defective and may not serve as a lawful basis for altering existing environmental regulations.”

Who Is Lying — Donald Trump or Donald Trump?

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Who Is Lying — Donald Trump or Donald Trump?

One of the screaming issues of our time is whether and to what extent Donald Trump has had or now has business dealings with Russia.

To understand the answer to that question, it would be helpful to have a look at Trump’s personal and corporate tax returns, but, of course, during the campaign, he lied about his intention to disclose them, then used the bogus excuse of audits as a justification, then argued, illogically, that since he won the election, no one cared any longer about seeing his tax returns. There is no current likelihood that his tax returns will be revealed unless the Republicans in Congress improbably decide it is time to put the country about Republican Party interests.

There is a hint, however, about the Trump-Russia business connection in two videos in which Trump speaks about his business interests in Russia. The first one was recorded in an appearance on the David Letterman show in 2013: http://bit.ly/2qeKJyg. Fast forward to about 14:45 and watch for 15 seconds.

More recently, Trump was interviewed by Lester Holt on NBC Nightly News: http://www.cnn.com/2017/05/11/politics/transcript-donald-trump-nbc-news/

Page 7 of the interview transcript contains this from Trump:

I have no investments in Russia, none whatsoever. Uh I don’t have property in Russia. A lot of people thought I owned office buildings in Moscow. I don’t have property in Russia, and I am uh in very I, I mean it in total compliance in every way. Now I have to tell you uh I file documents, hundreds of pages worth of documents with the Federal Elections Bureau, everybody’s seen them. I built a great company, but I’m not involved with Russia uh I have had dealings over the years where I sold a house to a very wealthy Russian uh many years ago uh I had the Miss Universe pageant which I owned for quite a while, I had it in Moscow long time ago, but other than that I have nothing to do with Russia.

Then decide for yourself whether the liar is Donald Trump or Donald Trump.