Category Archives: Commentary

Trump Lawyers Up As Obfuscation Engulfs White House

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CNN reported on March 7 that Trump White House lawyers up. http://cnn.it/2qZYxvJ. The story was that the White House had retained 26 attorneys on the White House legal staff, an increase of four over President Obama’s legal team at the outset of his administration. There was nothing particularly striking about the report, given the breadth of Trump’s conflicts of interest and the complications encountered with his Muslim ban and other allegedly urgent needs to man up and fulfill his campaign promises. Moreover, the White House is engaged in untold complex problems that implicate serious legal issues, often at the border of known practice or precedent so having some rational thinkers close by for consultation is not a bad arrangement.

However, more recently Trump has lawyered up again. It is unclear who is paying for the new counsel, but according to Press Secretary Sean Spicer, Trump: “obviously, was aware of Senator Graham’s suggestion [that Trump’s business relationship with Russia be investigated] after he made it today and he’s fine with that. He has no business in Russia. He has no connections to Russia. So he welcomes that,” Spicer said.” In fact, he is [sic]already charged a leading law firm in Washington, D.C., to send a certified letter to Senator Graham to that point that he has no connections to Russia,” Spicer said.”

Several points of interest arise from that statement. Spicer is flatly parroting the Trump mantra that he is free of Russian entanglements of any kind. If nothing else, Spicer is a loyal soldier following orders. However, his statements of “fact” regarding Trump’s business connections with Russia are contradicted by earlier well-circulated statements by Jared Kushner, Trump’s son-in-law and alter ego in the Trump business empire.

Moreover, it is not clear why anyone should conclude that a hired law firm’s “certified” letter will settle the question of Trump’s involvement with Russia. The “certified” refers only to a service offered by the U.S. Postal Service; it does not add credibility or probative force to the contents of the communication. And the law firm’s affirmation of Trump’s Russia connections, or lack of them, cannot possibly be regarded as a substitute for an independent investigation of the question whether such connections exist. Even if the law firm were to conduct a massive and thorough “investigation,” it would necessarily be relying on Trump and his associates’ version of the truth and could not possibly have access to all the documents being reviewed by the relevant congressional investigating committees, not to mention the FBI’s independent investigation. Given Trump’s relentless history of lying about matters big and small, there is little joy to be found in a law firm’s sign off on anything he says, especially when he is paying the firm (or has misdirected public funds to pay the firm).

Oh, one other thing, the fact that the unnamed law firm is “leading,” per Spicer’s description, will impress no one. There are more “leading” law firms in Washington alone than there are Starbucks stores.

That brings us to the firing of James Comey as Director of the FBI. The facts on this sordid episode are not all in yet, but we are told that in the days before he was fired, Comey had sought subpoenas from the Eastern District Court in Virginia for documents related to now-fired Michael Flynn, thereby indicating an apparent escalation in the seriousness and breadth of the FBI investigation into election meddling by Trump and/or his associates. Moreover, Comey had reportedly just asked for more resources to carry out the investigation from the same person who supposedly recommended on his own initiative that Comey be fired. The FBI refused to comment on that point, but, according to the New York Times, “Sarah Isgur Flores, the Justice Department spokeswoman, said “the idea that he asked for more funding” for the Russia investigation was “totally false.” She did not elaborate.” http://nyti.ms/2pkwBWL.

Beyond those curious circumstances, we have the actual documents that executed the dismissal of Comey.

The opening line of the dismissal letter states that the President has “received the attached letters … recommending your dismissal,” as if the letters were a surprise that was slipped under the door of the Oval Office while the President was watching TV. The second paragraph states the President’s concurrence in the judgment of the Department of Justice, again implying that DOJ came up with all this on its own and that Trump is simply acceding to their recommendations.

But most remarkable, perhaps, is this bizarre statement:

“While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.” [emphasis added]

At the very same moment he is firing the Director for misconduct in office, Trump tries to borrow from whatever may remain of Comey’s credibility by saying, in effect, “look, he said I wasn’t guilty so I’m not guilty!” Can anyone not hallucinating believe that the insertion of the gratuitous claim that Comey had thrice absolved Trump of suspicion was inserted for any reason other than the guild the lily of Trump’s denials of involvement?

Beyond that, the inclusion of the claim that Comey in effect gave Trump a clean bill of health in the Russia investigation raises many questions that must be answered, under oath. One is, when exactly, and under what circumstances, did the Director of the FBI give such personal assurances to the President, if in fact he did? Comey is now in the position of an attorney whose client has publicly claimed the attorney gave unethical advice or otherwise violated the law in connection with his representation. The attorney must be allowed to defend himself and so must Comey. He should be called very quickly as a public witness by the relevant congressional committees to explain whether he did what Trump claims or whether Trump, in keeping with past practice, is flat out lying.

Now we come to the recommendation from Attorney General Jeffrey Beauregard Sessions III in which he recites his great dedication to “discipline, integrity, and the rule of law.” That, notwithstanding that he had previously recused himself, for lying to Congress about his own contacts with Russian operatives, from the investigation Comey was leading into the Trump-Russia connections. Apparently his having recused himself regarding the investigation was not seen as an obstacle to his participation in dismissing the leader of that investigation. This screams out for explanation. Was the recusal a head-fake to thwart an investigation into Sessions’ lies about his meetings with Russia operatives? Surely someone at the Justice Department remembered his recusal. You would think an explanation of his participation in the dismissal would have been offered by now. The total arrogance of these people is palpable.

Finally, there is the recommendation memorandum, also dated May 9, 2017, from Deputy Attorney General Rod J. Rosenstein, to whom Comey reported and who had been on the job about two weeks. It must have been a busy day at the White House and DOJ for all these letters bearing the same date, May 9, 2017, to have been produced.

The document begins by praising Comey’s skills as a speaker and that “he deserves our appreciation for his public service.” The letter then acknowledges that Rosenstein and Sessions have discussed Comey’s handling of the “conclusion of the investigation of Secretary Clinton’s emails” and states Rosenstein’s inability to understand Comey’s refusal to “accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.”

The Memorandum then recites the errors made by Comey that in Rosenstein’s view usurped the authority of the Attorney General (then Loretta Lynch): (1) announcing Comey’s conclusion that the case against Clinton was being closed without prosecution, and (2) holding a press conference to “gratuitously” release “derogatory information about the subject of a declined criminal investigation,” and (3) using inappropriate words, like “conceal” in a subsequent letter to Congress.

The press conference to which Rosenstein objects occurred on July 5, 2016, just over nine months before Comey’s dismissal without notice or opportunity to address the charges against him. The letter to Congress was sent on October 28, 2016, before the 2016 election and just under three months before Trump’s inauguration. And until May 9, 2017, Comey’s handling of the Clinton email investigation and his public disclosures met with Trump’s enthusiastic approval. Perhaps in an attempt to counter the effect of those facts, Rosenstein’s memorandum recites excerpts of letters from seven former Attorneys General, Deputy Attorneys General and other unnamed Justice Department officials who concur in the condemnation of Comey’s actions, leading to the conclusion that “Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”

More questions arise. When were these letters from former DOJ leaders written? No dates are given. How were they solicited? By whom? Are we to believe they were just lying around waiting for some enterprising Attorney General to cite them as authority for dismissing Comey? White House Deputy Press Secretary Sanders has stated that Trump was considering firing Comey as early as January 21 but her explanation for the delay is a mish-mash of incoherent blather.

To be clear, and in conclusion, I am not arguing that Comey’s conduct in 2016 was correct. I strongly believe he inappropriately influenced the 2016 election and helped elect Donald Trump. Trump rewarded that help by firing him because Comey was showing a frightening (to Trump) independence in pursuing the Trump-Russia connection, an independence for which Comey had a reputation. Trump views loyalty as the most important trait and Comey, in Trump’s eyes, now looked like a traitor. So, “you’re fired!”

But this is not reality TV. Trump has doubled down on thwarting the Russia investigation. He is so arrogant that today, less than 24 hours after firing Comey, Trump met at the White House with Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the US Sergey Kislyak while excluding U.S. press.

The firing of Comey is, in my judgment, a non-survivable mistake that should, by itself, lead to Trump’s impeachment. It may take a while, but there is no way this interference can be tolerated in a democratic society. The issue is not whether Comey handled the Clinton investigation correctly or who objected or applauded at the time. The question is whether a sitting president can be permitted to directly interfere with an investigation of serious impropriety through the intervention of a hostile foreign power in the manner of his election. The answer must be ‘NO.’

Trump better get some more lawyers. He’s going to need them.

Visiting the Holocaust Museum

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For years, I have resisted visiting this museum, in part because I had read many books detailing the history of the Nazi takeover of Germany and its aftermath and, in part, because I knew how jarring it would be. When my wife announced Sunday morning that she had acquired time-entry tickets for that afternoon, I relented.

The museum is indeed a jarring experience. The faces of the visitors, many quite young and many very old, tell the tale. Seeing the photographs and films while hearing the voices of the men and women who perpetrated the most monstrous genocide in world history is not for the light-of-heart. The cruelty of it cannot be described; it has to be seen. Even then, it sometimes does not register because it is so alien to how normal human beings see other human beings.

There are many lessons to be taken away from the experience of the Nazis in Germany. I won’t pretend to be competent to state them all. Others have done so in words more memorable than anything I can offer. But I can, I think, draw one observation that, for me, was the dominant idea and the dominant sensation that impressed itself on me as I passed through the origins, the implementation and the end results of the Nazi worldview. This sensation does not diminish the horror and the outrage of the Holocaust in any way, but aside from profound revulsion at what was done in the name of racial purity, there is a practical lesson that has immediate relevance to the United States and indeed the entire world.

I am speaking of complicity. Understated somewhat in the museum displays is the historical reality that much of the world, and in particular and notably the United States, turned its back on the Jewish refugees who were trying to escape the Holocaust spreading across Europe in the 1930s. And there is the historical reality of appeasement, the belief that by giving Hitler some of what he wanted, he would stop the ruthless expansion toward world domination that he so clearly stated was his ultimate desire. Intelligent people concluded that another war with Germany was to be avoided no matter what, that Hitler could be sated with a few more pieces of territory, a few more subjugated populations. The world largely stood by and watched Germany roll over much of Europe. Citizens of some of the victim countries actually welcomed the Nazi invasion. By the time the United States actively intervened, it was almost too late. Millions died, millions, while governments around the world failed to act.

Now let us turn to the present. I have written about this before. See http://bit.ly/2qoDaYE. Visiting the museum brings the message into sharp focus. Many of the same tactics used by Adolf Hitler and the Nazi Party are routinely employed by the President Trump, his acolytes in the White House and his appointees in the major Executive Department agencies. Trump’s attempts to delegitimize the independent media, calling them the “enemies of the people” are right out of Hitler’s playbook. That may seem harsh or over-wrought but the history is there to be seen. Holocaust-deniers are just like climate science-deniers in their capacity to block the truth in favor of more satisfying mythologies.

I won’t belabor this. I don’t know that Trump plans to replace the Constitution, but then again, we have seen him refer to it as “archaic” and “really bad for the country.” He has railed at the courts for decisions he opposed and generally appears to see the Constitution as an unjustified obstacle to his political agenda. He has many apologists who are quick to respond that “he really didn’t mean that” or “he is just frustrated; pay attention to his actions, not his words.”

But his words are his actions. Many people said the same things about Adolf Hitler’s words. Then they saw his actions and remained silent or joined the Nazi bandwagon.

The real point is that people of good will who value their freedom must not be complicit in Trump’s undermining of American institutions such as the free press. Silence is complicity as much as active cooperation. Both silence and active cooperation made Hitler’s rise to power possible. They have the same effect in our time. It is the moral responsibility of every person who believes in the ideals of the American way of life as enshrined in the Declaration of Independence, the Constitution and the invitation inscribed on the Statue of Liberty to actively resist the Trump administration’s cynical effort to undermine those ideals.

You can do this by subscribing to the information sources at MoveOn.org, ACLU.org, Indivisible.US, PeoplePower.org, Dailykos.com, TakeCareBlog.com or any of the other major authenticated sources of real information about what the Trump administration is doing to undermine the quality of the air you breathe, the water you drink, and the freedoms you enjoy as an American. Sign the petitions, participate in the marches, stand up and fight back! If you know someone who voted for Trump, reach out to them and politely, without judgment or acrimony, try to reason with them using the facts and truths that are readily available. And then VOTE in 2018. There is no other way. Do not be complicit by your silence and your inaction.

As you leave the Holocaust Museum, you pass a wall inscribed with these words of Martin Niemöller, a Protestant pastor who openly opposed Hitler and spent seven years in Nazi concentration camps:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Nothing more to say.

Indictment of Donald J. Trump, President of the United States

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BEFORE THE SUPREME COURT OF PUBLIC OPINION
& EQUAL JUSTICE FOR ALL

THE PEOPLE OF THE UNITED STATES
                        v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES

INDICTMENT FOR HIGH CRIMES & MISDEMEANORS & ARTICLES OF IMPEACHMENT

COMES NOW, THE PEOPLE OF THE UNITED STATES,

Who have declared that all men are created equal in the eyes of the law and entitled to life, liberty and the pursuit of happiness, and

Who have adopted a Constitution and amendments in the belief that thereby a more perfect union could exist with a government of the people, by the people, for the people, and

Who, having considered the manifest and mounting evidence of incompetence and dishonesty repeatedly demonstrated by the sitting President and his appointed officials (hereafter sometimes referred to as “Trump”),

DO HEREBY DECLARE that Trump has violated his oath office by consistently failing to faithfully execute the office of president of the United States and failing to preserve, protect and defend the Constitution of the United States by engaging in the acts set forth below, among many others:

  1. Knowingly violated Article I, Clause 8 of the Constitution forbidding receipt of foreign-sourced emoluments by failing to separate himself from management of, and financial rewards from, his many private business interests which he and his family regularly promote to and receive from, at least indirectly, financial benefits originating with foreign business and government interests;
  2. Repeatedly signed Executive Orders found to be blatant violations of the Constitution (a) regarding immigrants/refugees from Muslim-majority countries without evidence that they would accomplish any meaningful security purpose and (b) threatening the withholding of federal funds from Sanctuary Cities;
  3. Repeatedly signed Executive Orders designed to permit uncontrolled air and water pollution while denying the validity of scientific method and rejecting without basis in fact or reason the multiply authenticated findings of climate scientists around the world;
  4. Lied repeatedly about important matters bearing on his credibility, including, but not limited to, his claim that former President Obama wiretapped Trump Tower in New York;
  5. Repeatedly lied about his intention to release his tax returns for public scrutiny and refused in fact to release them;
  6. Lied about his intention to appoint highly qualified people to his Cabinet, instead awarding Department Head positions to manifestly unqualified persons such as Betsy Devos at Education, Ben Carson at HUD, Scott Pruitt at EPA, Rick Perry at Energy and Jefferson Beauregard Sessions as Attorney General;
  7. Attempted to undermine the independent news media by attacking professional journalists, and the media companies that employ them, as purveyors of “fake news” and labeling them as “enemies of the people;”
  8. Wasted millions of dollars of taxpayer funds on unnecessary trips to his Mar-a-Lago resort in Florida where he plays golf almost every weekend and conducts serious public business in non-secure facilities;
  9. Personally visited on a frequent basis hotel/resort properties bearing his name, thereby continuing to promote his business interests and encouraging private firms to use such properties for their business and his and his family’s ultimate enrichment;
  10. Falsely claimed that Department of Justice data proves that the majority of domestic terrorist attacks after 9/11 were committed by those from abroad, thereby facilitating hostility of Americans toward Muslims and toward foreign countries with significant Muslim populations to the detriment of American foreign policy and relations with those countries and their people;
  11. Repeatedly falsely asserted responsibility for private company decisions in matters such as the price of the Lockheed Martin F-35 and the Toyota investment in Kentucky;
  12. Falsely asserted that he has accomplished more in his first 100 days in office than any president in history, thereby undermining the trust of the people in the office of the president;
  13. Lied about his knowledge of the operations of WikiLeaks and repeatedly lied about his knowledge of the attempts by Russia to influence the 2016 election, including Russians collaborating with members of Trump’s campaign staff;
  14. Covertly interfered with the congressional investigations of the connections between the Trump election campaign and Russia;
  15. Misrepresented statements by political leaders, such as Democratic Rep. Elijah Cummings, whom Trump claimed had said Trump “will be the greatest president in the history of this country.”
  16. Repeatedly lied about the size of attendance at his inaugural ceremony;
  17. Repeatedly misrepresented the share of the Electoral College vote he received and falsely claimed that he would have won the popular vote but for 3 million “illegal” votes cast;
  18. Demonstrated a thorough-going failure to understand history or geography, making such claims as that “Korea actually used to be a part of China;”
  19. Falsely attributed NATO’s anti-terrorism activities to his personal criticism of NATO for not fighting terrorism;
  20. Lied about the length and extent of his pre-election relationship with Steve Bannon;
  21. Demonstrated a serious lack of knowledge about international trade, falsely claiming, for example, that the trade deficit with China was more than $150 billion larger than in reality;
  22. Gave aid and comfort to authoritarian leaders around the world, including Vladimir Putin and Rodrigo Duterte;
  23. Repeatedly supported changes in law and federal policy to deprive elderly, infirm, disabled, poor and foreign-born persons of equal protection of the laws and due process of law, in violation of the Constitution of the United States.
  24. Threatened to shut down the federal government to get his way on budget cuts that will endanger the lives of Americans.

WHEREFORE, for good cause shown, proceedings for impeachment of Donald J. Trump should be commenced forthwith in accordance with the Constitutional provisions pertinent thereto, or in the alternative, removal proceedings should be commenced forthwith in accordance with Amendment 25 to the Constitution.

So it is written, so let it be done.

This Indictment and Articles of Impeachment are subject to amendment as additional facts are forthcoming.

 

Is Unpredictability a Strategy or Merely Incompetence?

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A fair and important question arises when observing the almost 100 days of the Trump administration: is the unpredictable behavior of the President, and resulting chaos among his top team members, a smart strategy in international affairs or simply proof that Trump is unhinged and incompetent in understanding one of the most critical parts of his job?

Trump has never been shy in self-promoting his skills as a negotiator, assuring his infatuants that “I always make the best deals, believe me.” He allegedly wrote a book about deal-making which claim is also cited as proof of skill. And, of course, he has made a lot of money developing real estate. Still, it’s a fair question whether those skills, if they exist, translate well to international affairs where there are usually only three options: yield, negotiate or fight.

There are many theories of negotiation. Some hold fast to the trash-and-burn zero-sum approach that says, in essence, ‘what I win, you lose’ and vice-versa. Proponents of that style often negotiate by threats, bluffs and other forms of intimidation. They believe you can win more by being difficult and unpredictable, with one foot always out the door in an effort to convince the other side that you are the dominant party whose needs must be met or the negotiation ends. This approach often leads to litigation, the “peaceful equivalent of war,” in which often both sides lose.

Another major theory of negotiation is “mutual gains,” in which each party evaluates his own and the other party’s interests and seeks to find a way for both sides to gain something from the negotiation. They see the discussion as an opportunity for each side to ‘win’ by recognizing the legitimate interests of the other side and finding ways to compromise conflicts. This approach requires a measure of mutual trust by the parties, defined as the ability to believe what the other side says and what it promises to do.

In international affairs there is no stasis, no situation in which the positions of the parties are fixed over time. If reasonable and mutually acceptable methods of getting along cannot be negotiated, there is a significantly greater risk that the stalemate will lead to violent conflict because the parties, lacking trust, will continue to try to improve their respective positions through unilateral action that may be seen as overtly hostile by the other ‘side.’ For example, if one side believes it has a commanding advantage, it may then act to solidify that position by acquiring new territory or some other hostile act.

If you have ever had the unpleasant and unsettling experience of trying to negotiate with someone that you did not trust and whose words were frequently in conflict with his actions or the words and actions of his support team, you understand how central trust can be to an effective negotiated outcome to any dispute.

The sitting President of the United States is most decidedly not a man of his word. On the campaign trail, he often declared that his policy in office would be one of “unpredictability,” as if this would be a huge advantage. In reality, the opposite is more likely true. It is not plausible to believe that acceptable relationships can be maintained with adversaries, and friends as well, when no one can depend on what you say and when your statements conflict with those of your team leaders. Similarly, when it appears that there is no settled policy, or no policy at all, and that positions are being made up on the fly, uncertainty results and leads to defensive positioning by those who feel threatened.

And that is precisely what the Trump administration has brought to the table.

The evidence is in plain view. There are frequent instances in which the United States representative to the United Nations says things that appear to be in conflict with statements from the President. Even members of his cabinet, including the Secretary of State, sometimes appear to be in conflict with the Commander-in-Chief and either have to withdraw or qualify what they have said. Or they become “explainers” who reinterpret what Trump has said to align it more closely with what they have said or done.

One of the most disturbing incidents of conflict among the President and his team occurred in connection with the claim that the President had ordered a naval task force to a position near North Korea as a kind of warning. Such shows of force are not uncommon in international diplomacy, but in this case the President and his men were wrong about where the aircraft carrier and escort were located and where they were headed. One can only imagine how the North Koreans evaluated that situation once it was exposed.

One day Trump believes that NATO is obsolete and the next day he suddenly appreciates the role NATO plays in maintaining world peace. He often appears to act in response to the last voice he heard. One day that last voice may get the United States into a world of hurt. Trump will then say, as he has before when caught out in a big lie, “I heard it from someone with great credentials. It wasn’t me.” Except that it will be him. He is, as he often reminds us, the President.

This serious deficiency is also having an impact domestically. One would have thought that the time between the election and the inauguration would have been spent studying the government and the governing environment, resulting in at least a rough outline of a plan of action once in command of the Executive Branch resources. Instead, the Trump administration has been so obsessively focused on making a big splash for Trump’s ego that it evidently has no plan. It has only ideology and is making up its governing strategy as it goes along. One of the results of this is the President’s budget plan that proposes to eliminate entirely the small but highly beneficial U.S. Trade & Development Agency. This group reportedly returns $85 in exports for every $1 spent. See “Trump wants to kill an agency that is accomplishing one of his biggest goals” at http://wapo.st/2o9zSrl.

Defunding this agency is plainly a self-destructive act that shows the administration has not studied and has no coherent plan for addressing its own stated goals. Instead it is shooting itself, and the country, in the head. Similarly, Trump’s interference with the Environmental Protection Agency’s regulations reflects a lack of study and a total lack of understanding of the work of the agency to protect the air and water. Similarly, there is no evidence that the Trump administration has studied rationally the relationship between environmental protection and job creation. The administration’s policy appears to be arising from inputs by favored industries who want a free hand to act as they please, with no actual evidence that enabling such behavior will have meaningful job-creating outcomes.

Mr. Trump appears still to believe that being “unpredictable” is a positive quality. He seems incapable of learning from mistakes, partly because he won’t recognize any mistakes, and thus continues to manage his position with chaos and failure as the principal results. The new and seemingly desperate rush to post a victory of some kind before the 100-day mark arrives is likely to result in more failures, as illustrated by the federal court opinion enjoining the Executive Order on Sanctuary Cities. Once again, Trump and his team are at odds with each other. Read here, in conclusion, an excerpt from the court’s opinion (italics added):

“The Government does not respond to the Counties’ constitutional challenges but … explained for the first time at oral argument that the Order is merely an exercise of the President’s “bully pulpit” to highlight a changed approach to immigration enforcement. Under this interpretation, Section 9(a) [the enforcement section of the Executive Order] applies only to three federal grants in the Departments of Justice and Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This interpretation renders the Order toothless; the Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law. Counsel disavowed any right through the Order for the Government to affect any other part of the billions of dollars in federal funds the Counties receive every year. 

It is heartening that the Government’s lawyers recognize that the Order cannot do more constitutionally than enforce existing law. But Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is broader still, addressing all federal funding. And if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments. The President has called it “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply with Section 1373 would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered at the hearing.

Although the Government’s new interpretation of the Order is not legally plausible, in effect it appears to put the parties in general agreement regarding the Order’s constitutional limitations. The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

It seems the President and his attorneys have entirely different strategies regarding the meaning and defense of the Executive Order that Trump signed. Given the public statements of the President and the Attorney General, the administration cannot get away with “I didn’t mean it” as a defense to constitutional challenges.

I conclude that the chaos of the administration is the result of incompetence and that incompetence is not a good strategy for any purpose. Where exactly the source of all this internal conflict resides is, until the memoirs are written years hence, only a matter of speculation. But it is still a fair assessment that many serious thinkers saw this coming. Would that the voters had listened.

They Are Coming for Your Health Insurance

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Well, not actually yours. Readers of this blog probably get their health insurance through employers. But millions of other Americans are at risk. I warned about this on March 26 in a post entitled “When You Rest on Your Laurels, You Become a Stationary Target.” Now a major Washington Post story by Robert Costa and Paige Cunningham, who usually get this stuff right, states that “Freedom Caucus leaders near deal on health-care plan.” http://wapo.st/2q5zRlF

It appears that the essence of the deal being negotiated will make it appear that the Affordable Health Care provisions on essential benefits will remain intact, while permitting any state to seek individual waivers to enable them to eliminate those benefits for insured people in that state. Moreover, while insurers would still be required to cover people with preexisting conditions, the insurers would be empowered to charge those people higher premiums.

One of the more telling observations reported in this story is this:

“Top GOP aides said that text of the new bill probably won’t be posted until House Republicans feel confident that they have enough votes to pass the bill.”

You couldn’t make this stuff up. The apparent plan is to negotiate the terms in secret, subject to the inevitable leaks by negotiators who love seeing their names in print, and then bring the bill to the floor for a quickie vote.

In another post, on March 24, I asked the question: “What is the Democratic Alternative to the American Health Care Act?” Still waiting. If the Republicans are successful in this latest maneuver, it will, of course, be up to the Senate, where, one hopes, something resembling a superior alternative will be put up by the Democratic leadership. Otherwise, the Democrats play the role of the Party of No and likely lose the fight.

One final, for now, observation. There should be no mistaking what the Republicans are up to with this new scheme. Turning over the question of benefits coverage to the states and letting the insurers charge higher premiums to people with pre-existing conditions will have several virtually certain effects:

  • Republican-dominated states will rush to screw over consumers by reducing the mandatory benefits coverages (why else are they so anxious to turn this issue over to the states?)
  • In many states, patients with the worst medical problems will be priced out of the insurance market altogether
  • Because of the effects of gerrymandering, the realization of populations in Red states that they have been “had” by the Republican-dominated Congress and their choice of President will have little effect
  • Contributions from insurance companies to Republican politicians supporting this emasculation of the medically-suffering population will reflect the companies’ gratitude

There is, of course, still the possibility that the malodorous negotiations will fail to satisfy the far-right or the “moderates” and no bill will be brought to the floor. But little is being heard from the opposition to these moves. Time will shortly tell. I continue to ask: where is the Democratic alternative?

P.S. It has also been reported that the Republicans like an amendment to their new version of health care insurance that exempts Congressmen and their staffs from being subjected to a state waiver of essential benefits! http://bit.ly/2q3pONP  Nice. Always watching out for the little guy. Makes your heart swell with patriotic pride.

 

March for Science 2017

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It was a wet and gloomy day in Washington DC yesterday, the appointed time for the mothership of the global March for Science, but it had little, if any, effect on the size or enthusiasm of the crowd which had to be in the tens of thousands in DC alone. By the latest count, more than 500 satellite marches were scheduled in all 50 states and around the world. A report and some pictures of the DC march can be found here: http://bit.ly/2pLoSgV

The march will be followed by the Climate March in Washington DC on April 29. Satellite marches will be held around the country and in Canada (and perhaps elsewhere). See https://peoplesclimate.org/

In keeping with his unbroken history, Not-My-President Donald Trump issued a tweet demonstrating his total cluelessness and venality regarding science and the environment:

“Today on Earth Day, we celebrate our beautiful forests, lakes and land. We stand committed to preserving the natural beauty of our nation.”

That statement must be intended solely for his infatuant base since all informed people will recognize that Trump’s actions as President are directly contrary to the interests of science and the environment that sustains us. More on that another time. The turnout for this march shows pretty clearly that the people are not going to stand by idly while the administration wrecks the planet.

For now, I have set out below a few photos I took. It was hard to see much because of the umbrellas and the absence of high ground but these will convey the general gist.

 

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I Am Amazed That Top Government Lawyer in an Office in Washington Doesn’t Understand the Federal Judicial System

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By now you have likely seen the remarkable statement from the Attorney General of the United States, the self-declared unbiased non-racist Jefferson Beauregard Sessions III, who was educated at Huntingdon College in Montgomery, AL and the University of Alabama School of Law in Tuscaloosa. If not, here it is:

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.” http://n.pr/2pLWTxZ

Since UASL is accredited by the American Bar Association, it reasonable to expect that it teaches courses on the federal court system and one would hope that AG Sessions took at least one such course. Constitutional Law is in fact a required first-year course that presumably covered at least some core elements of the structure and function of the judicial system.

Now, to be “fair,” I understand that Sessions has — to use the popular “walking it back” theme of current political discourse (“walk back” means “uh oh, I said something really stupid that reflects what I really think but that is going to be really unpopular so I will “walk it back” – imagine a dog, having pooped on the carpet, slinking out of the room backwards) – walked this back. Here’s what he said:

“I wasn’t criticizing the judge or the island. I think it’s a fabulous place and had a granddaughter born there,” he said. “But I got to tell you, it is a point worth making — that a single sitting district judge out of 600, 700 district judges can issue an order stopping a presidential executive order that I believe is fully constitutional, designed to protect the United States of America from terrorist attack.”

Even in “walking back” his first statement, Sessions still refers to Hawaii, as much a state of the United States as Alabama, as “the island,” as if being an island is somehow a lesser status. When asked if he would like to rephrase his statement, the “walking back” ended: “I don’t know that I said anything I would want to phrase differently.” http://cnn.it/2pLBTXN

In fact, of course, the judge in question holds a law degree from Harvard, so, no, rest assured, Jefferson Beauregard Sessions III wasn’t criticizing him. Furthest thing from his mind. He was instead just criticizing the entire setup of the judicial system, which in his mind is apparently just a fine thing to do. He typifies the lawyer who can never accept that he lost the case, that his arguments were simply wrong. Or badly presented. No, it must be “that judge” who did me wrong, who sits on an island somewhere. Who does he think he is, anyway?

This might be amusing if it were not a central element in the mind-set of Not-My-President Donald Trump who is never wrong and who is always being mistreated by those Mexican judges or someone else with dubious credentials. Jefferson Beauregard Sessions III is the lead attorney in the United States government, the head of the Department of Justice! And he apparently doesn’t accept the structure of the federal judiciary.

The literature on authoritarianism is replete with discussions of the dangers to freedom and democracy that arise when the powerful attempt to delegitimize the core institutions that enable democracy to work. We therefore must not simply write Sessions’ remarks off as more buffoonery from the Trump administration. These types of statements are dangerous indicators of the ideology that drives the administration’s agenda. They must be called out for what they are at every opportunity and resisted in every responsible way possible.

I rest my case, Your Honor. At least for a while.

Science – Who Needs It? Everybody

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The attached video by Neil deGrasse Tyson, one of our contemporary geniuses and a true polymath, should be seen by everyone. It is especially appropriate since the March for Science is happening this Saturday. In addition to the main march in Washington DC, there are now 517 “satellite marches” around the world. See https://www.marchforscience.com/ People who believe in science are about to make a powerful statement.

There is nothing meaningful I can add to the video, so, uncharacteristically, I’m going to just put the Facebook link in here and urge everyone to view it. It’s only four minutes long.

https://www.facebook.com/neildegrassetyson/videos/10155195888806613/

March for Science on Earth Day – April 22 & Write the EPA

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Having just come off the Tax March this past Saturday, my aching back is preparing for another long walk on Earth Day, April 22. While it is likely that Not-My-President Trump will be vacationing and golfing yet again at his Mar-a-Lago palace in Florida, the event will surely attract media attention and, like the Tax March, Trump will be watching. This was his tweet about the Tax March:

Donald J. Trump‏Verified account @realDonaldTrump  Apr 16

Someone should look into who paid for the small organized rallies yesterday. The election is over!

And my response:

ShiningSeaUSA‏ @ShiningSeaUSA  Replying to @realDonaldTrump

Not small. I was there. U were playing king in FL castle. Paid my own way. U didn’t. One election over. Next one not.

He will likely lie about the size and intensity of the March for Science just as he did about the Tax March. But the people will keep marching and he will keep lying until maybe, just maybe, the Russia connection will be uncovered and he will face the unpleasant music that grows louder with each revelation. The drumbeat grows stronger every week and Trump can hear it even through the walls of the White House, Trump Tower and his palace in Florida.

Meanwhile, we’re stuck with him and everyone … and I mean everyone … has a decision to make. Trump and his team of corporate insiders are rapidly dismantling critical environmental protections established from as far back as the Clinton administration. Trump and his gang of thieves appear to believe that they and their ultra-privileged heirs can afford to buy all the clean water they want and that by some magic trick, they will be able to avoid breathing the polluted air their friends will spew into the atmosphere once freed of the EPA’s controls. The Washington Post reports that the overwhelming majority of comments to the Commerce Department regarding the Trump “regulatory rollback” relate, directly or indirectly, to the EPA and the environmental restraints on the polluting industries.  http://wapo.st/2onrSyr. The polluters are demanding the freedom to wreak havoc on the world and we are all that stands in the way.

Meanwhile, the EPA itself is soliciting comments on the Trump regulatory rollback. See https://www.regulations.gov/docket?D=EPA-HQ-OA-2017-0190. As of this writing there were already 723 comments filed. The comment deadline is May 15, 2017. You can file anonymously if you must, but you will be joining hundreds of Americans who are objecting to the slash-and-burn policies of the Trump administration. Filing is easy. Read just a few of the other comments and then just say what you believe. Your life and the lives of your descendants may depend on thwarting the administration in its campaign to sell out America to the polluters.

This is what democracy looks like. It takes some work but it can do the job if we support it. Don’t let Trump’s people get away with saying “we asked for input and didn’t get much, therefore we conclude that the public is on board with our program to eliminate meaningful environmental regulations.” If you can’t join the marches for whatever reason, let your fingers do the walking for you by objecting to the end of responsible environmental regulation. Do it now. Please.

Tax March DC 2017

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Yesterday tens of thousands of Americans gathered in cities across the country to demand that the sitting President of the United States release his tax returns so that the country can decide for itself whether there are concerning ties to Russia, whether and where lie his continuing conflicts of interest resulting from failure to divorce himself fully from his business interests and how he and his family may benefit from changes in the federal tax code now being considered.

There are also many questions whether he has lied about his charitable giving, the scale of his earnings and others. Trump first said he would release his returns when the audits were finished. That excuse fails on multiple grounds. He signed the returns when they were filed and, as we all do, vouched for their accuracy and completeness. The audit may reveal issues with those criteria, or other failings, but the audit, which Trump could and likely would contest for years, is no excuse for withholding the returns from public scrutiny. As many of the signs at yesterday’s march stated: what is Trump hiding? T

he same question arises due to the Trump decision to withhold from public view the visitor logs to the White House. The proposed excuses for this latest example of secret government are security and privacy. The security question can easily be handled by time delaying the release or by masking names where there is a legitimate security reason for not disclosing a visitor to the White House. In an open democracy those should be few and far between. The privacy rationale is ludicrous coming from an administration that supports letting Internet providers sell the browsing records of their users.

For those interested but couldn’t attend a march personally, I have attached 116 images from the march in the District of Columbia which was massive. The photos from ground level do not fully reveal the size of the event nor, of course, the sounds.

Next up is the March for Science on Earth Day, Saturday, April 22. I urge you to join this march to convey to the administration that the people of this country are not going to accept the dismantling of the environmental protections that have been put in place to protect our life-essential air, water, bio-diversity and other natural elements critical to life on the one planet on which we can live. See this site for information:  https://www.marchforscience.com/