Category Archives: Uncategorized

United Airlines Does Something Right

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

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

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

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

 The NCPPR was set up in 1982:

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

https://nationalcenter.org/about/

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

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

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

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

At least two observations are warranted.

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

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

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

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

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

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

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

How Things Were Back Then

I have no idea why the memories I am about to relate have emerged from the fog of the past. I get these moments of clarity often when shaving, as in this case. Perhaps it’s something about having a super-sharp blade scraping down my throat. In any case I want to set down some memories and thoughts about an episode from my youth, long since passed into the rearview mirror of time. And, no, they are not closer than they appear.

In high school, late 1950s,I was elected by the student body to the “student government.” The student government had no real role to play, but we were selected to visit with a member of the Memphis city government. In my case it was the Commissioner of Public Works, or something similar. The essence of my “job” was to follow the Commissioner around for a day, do photo ops with him and try to learn something while staying out of the way. I did. I learned that I did not want to be the Commissioner of Public Works.

However, of greater importance at the time was the connection I made. I needed a summer job badly and, at that time in Memphis, they were hard to come by. So, the Commissioner gave me a job on one of the survey crews that laid out the elevations for streets being built at a furious pace in those days.

The crew consisted of the chief, whom I’ll call Bill, and two others, a young white boy whom I’ll call Jack and another, possibly Cajun but likely white, man whom I’ll call Dax. Truthfully, the other crew member is lost to memory. I do not remember their real names. Dax was a person of very limited intellect, likely suffering a mental disability, but was always kind to me. He would pick up screws, bolts, anything of a salvageable nature on the streets and handle them like they were lost gem stones. I asked him why he kept such things but he just said they might be useful to him some day. I better understood when we stopped by Dax’s “house” one day and I was told to go in with him to pick up something. Dax lived in what amounted to a hut, a single room house, with a single bed, single chair, small table and a small black and white TV.  He literally had nothing. Yet he showed up for work every day and went about his job without complaint.

Bill was a good ole’ boy in many ways, but also had a degree of native intelligence about things. He did the math calculations in a notebook and seemed skilled with trigonometry. How he acquired that skill was never revealed and it wasn’t something you asked about. Overall, Bill was a pretty decent guy. He always did the driving, in a beat-up station wagon (remember those?) into which the three of the working crew and the surveying equipment were crammed. There was no car air conditioning in those days and Memphis was a humid baking oven in the summer.

The day always began the same way. All the crews convened in a single room in downtown Memphis, where they mingled, smoked and just hung around waiting for the crew chiefs to come in with the day’s assignments. I was the odd man out in this group, a high school student bound for college, and not a person to whom anyone was drawn. Mostly, I just watched and stayed out of the way as much as possible. The chiefs always met with the top guy in a separate room to discuss, and argue about, which crews would go where during the day.

The crew’s assignment generally was to drive to wherever surveying was needed. Bill would park the wagon in the shade if he could find it. The work always began by finding, often with difficulty, a “marker,” consisting of the top, or what remained of the top, of a large nail or spike that had been driven in the pavement somewhere near an intersection. The altitude of that point was known from prior survey work, so it became the reference point for staking out the altitude and direction of the street that was to be laid down. Finding that initial point sometimes took a half hour or more of crawling around on the hot pavement in the open sun, brushing aside gravel with our bare hands, until someone yelled “got it.” If Bill confirmed the location, we were able to use an adjustable level and a long stick with marks on it, like a long yardstick, to determine the various levels for the giant road graders and dirt haulers to go by.

Many of our jobs entailed redoing the stakes that had been driven under or simply destroyed by the road graders that were far from fine-tuned instruments and were driven by what I believed to be ex-rodeo riders. Bill shared something in common with them, as his favorite diversion during the long days was to drive the wagon at high speed between, for example, two parked road graders with literally an inch of two to spare on either side. This led to much hooting and hollering among the crew, who thought we were going to die each time. But Bill never hit anything.

The other diversion was, I thought then and now, remarkable. The crew loved to play chess. Every day when we weren’t on immediate call, which was often, Bill would drive the wagon to one of his favorite cheap sandwich shops, where we’d order lunch meat and cheese on white bread and soft drinks, then drive to a shady spot somewhere, decamp from the truck and set up the chess board. On a good day, that is, one with little or no actual work to do, the chess games would go on for hours. Bill thought nothing of driving for an hour across the city to find a sandwich place and a nice park, even when the next job almost certainly would be where we had just been.

So what, you may say. The city was paying for men to play chess and occasionally do some necessary but largely unpredictable work under poor working conditions. No surprise there.

The real point of telling this long tale is this that one day we were working in downtown Memphis. In those days Main Street was actually a busy thoroughfare with department stores and other active businesses. The area was the center of commerce in Memphis. It was sometime in July, I believe, when the heat and humidity were almost unbearable and we were out on the pavement finding our marks, moving from spot to spot, probably for a repaving that was due. Jack, Dax and I removed our shirts to try to get such relief from the sun as we could. In those days we believed this was the proper approach. Later we learned otherwise. In any case, it felt better at the time.

During the next morning’s preparation meetings, we were informed that removal of our shirts when working in the sun was no longer permitted. Some citizens had complained that it was unseemly to have city government workers outside without their shirts. Of course, we weren’t told who had complained or how many complaints there were, but we did learn that the complaints were from members of the gentler sex, and that was sufficient. It was irrelevant that we did not have government uniforms. Jack, Dax and I worked in our own blue jeans. No matter. The sight of young men without shirts was offensive to Memphis womanhood and henceforth we would wear shirts regardless of the weather conditions.

And so that’s how it was back then. Opinions may differ about whether the city’s action was justified. I can only recall the events as helping form my view, later realized, that I had to leave Memphis.

Cox Farms Stands Up For Social Tolerance

I am posting, with permission, the entirety of a Facebook blog post by Cox Farms, a roadside fresh foods market of the type that used to dot the rural landscape but are now a rarity. Cox Farms is set up on Route 620 (Braddock Road) in what was once rural Virginia, between Flat Lick Stream Valley Park and Gilbert’s Corner. Details here: www.coxfarms.com.

I report, with profound sadness, that some people chose to attack the owners for their actions and words in favor of an inclusive society. This led to the usual rancorous exchanges on Facebook as the hate-mongers were drawn, like moths to the flame, by a public statement encouraging people to treat each other  with respect. There is nothing meaningful I can add to what Cox Farms had said and done, so I will just leave their statement here. I urge you to read it, all of it, and share it with someone you care about:

“Our little roadside signs have power. Most of the time, they let folks know that our hanging baskets are on sale, that today’s sweet corn is the best ever, that Santa will be at the market this weekend, or that the Fall Festival will be closed due to rain. During the off-season, sometimes we utilize them differently. Sometimes, we try to offer a smile on a daily commute. Sometimes, a message of support and inclusion to a community that is struggling makes someone’s day. Sometimes the messages on our signs make people think… and sometimes, they make some people angry.

Last week, some of our customers and neighbors asked us to clarify the sentiment behind our sign that said “Rise & Resist.” So, we changed it to read “Rise Up Against Injustice” and “Resist White Supremacy.” We sincerely believe that fighting injustice and white supremacy is a responsibility that can- and should- unite us all. We struggle to see how anyone other than self-identified white supremacists would take this as a personal attack.

Some have asked why we feel called to have such a message on our signs at all. Here is why:

Cox Farms is a small family-owned and family-operated business. The five of us are not just business-owners; we are human beings, members of the community, and concerned citizens of this country. We are also a family, and our shared values and principles are central to our business.

We’re not seeking to alienate folks who have different perspectives on tax reform or infrastructure spending. But when it comes to speaking out against systems of oppression and injustice, we see it as our moral responsibility to use our position of privilege and power, along with the tools of our trade and the platforms available to us, to engage visibly and actively in the fight for justice. Our roadside sign messages are one small way we do this.

Some folks have expressed that they would prefer not to know where we stand. We appreciate that being an informed consumer can sometimes be exhausting, disappointing, and frustrating. It can involve making hard choices about values and priorities. We respect that some have decided to no longer patronize our business as a result. We also know that there are some who may see our signs, roll their eyes, and still choose to come back for the kettle corn. We get it.

Desmond Tutu said, “If you are neutral in situations of injustice, you have chosen the side of the oppressor.” We consider the present state of our country to be far beyond partisan bickering or politics as usual. We see our nation in crisis, and peoples’ lives and safety and humanity are hanging in the balance. We are gravely concerned about the hateful words, destructive actions, and detrimental policies coming from this administration. We are not neutral, and we will not feign neutrality to appease our customers. We are committed to speaking out for love and justice, even if it costs us some business.

Almost twenty years ago, some visitors started a boycott because we fly rainbow flags over our hay tunnel, and they were concerned that Cox Farms was “promoting the homosexual agenda.” A few years ago, some folks got very angry about the Black Lives Matter sign hanging in a window of an owner’s home on the farm. Last year, some locals took offense at our “We love our Muslim neighbors” and “Immigrants make America great!” sign messages. What do all of the messages have in common? They are statements of inclusion. They attempt to tell members of our community, people that might feel discriminated against or alienated in a particular moment, “Hey, you are welcome here, too.” To our customers and neighbors that feel that this is somehow a divisive stance, we ask you to reflect on the possibility that your lived experience may be one that hasn’t necessitated a message of inclusion to make you feel welcome.

We’re not strangers to controversy or hard conversations. When we take a stand, we do so knowing that it could hurt our bottom line, and we are comfortable taking that risk. As a family, we know that when you’re on the right side of history, love wins. Right now, it means that some people in our community no longer feel comfortable supporting our business, and we respect that. While our intention was not to make anyone feel unwelcome, we certainly respect every consumer’s right to decide which businesses to support in our community.”

Most Disturbing Statements Since Trump Was Elected

According to a recent report in Axios, cited by CNN’s Chris Cillizza, Donald Trump’s personal attorney, John Dowd, recently said the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” http://cnn.it/2AUcpAw  That extraordinary claim has now been repeated in even more stark terms by the President (not mine) himself: ““I have absolute right to do what I want to do with the Justice Department,” Trump asserted in a widely reported interview with the New York Times. My emphasis on “absolute right,” because this is the type of claim made by dictators and kings. Under the Constitution there are few, if any, absolute rights and the right to break the law is certainly not one of them.

By extension, Trump’s principle leads to this: since every governor is likely the chief law enforcement officer in a state, the governor cannot obstruct justice under state law by interfering with the independence of the state office of attorney general.  And, since the police chief is the chief law enforcement officer in a city, he cannot obstruct justice either, no matter what he does or no matter what inspires him to act (e.g., here’s $100,000 to stop my friend (or me) from being prosecuted)? Or is it the mayor? Or both? Does Trump really believe that all these people are above the law and may interfere in investigations and prosecutions that could lead to themselves as targets? If that is the state of things, and you add up how many powerful people that involves, with command over the military, National Guard and police, you have the makings of tyranny and dictatorship.

Most likely, Trump never thought about the implications of his statement which he probably sees as applicable only to himself in his capacity as the supreme being.

Mr. Dowd, in his capacity as Trump’s lawyer, is entitled, of course, to make what are sometimes called “extension of law” arguments to support his client’s position, even if, as I believe is true here, the argument is pure poppycock. It is fundamental that a statement (read “expression of view”) made in one context may be harmless but pure poison if said to the wrong person or in a different context. Is the President merely expressing his opinion when he says to the head of the FBI “I sure wish you would let the Flynn thing slide,” and then fires the Director when he does not comply?

One might have pause over this in light of the supporting statements of Harvard Law Professor Alan Dershowitz (disclosure: I studied First Year Criminal Law under him). Dershowitz, however, as smart as he is, is not infallible. His position reminds me of some of the ultra-fine point-making for which law school classes were notoriously famous and are fine in an academic setting. In the real world we inhabit now, it proves way too much to say that the President of the United States is essentially immune from the law against obstruction of justice.

Dershowitz seems to be saying the President is “merely” exercising his Constitutional authority when he, for example, countermands a potential criminal prosecution or, for another, pardons himself or pardons targeted members of his staff even before they are charged with anything. He argues that no president has ever been charged for doing so. So what? Perhaps Special Prosecutor Mueller will be the first. There is always a first time and Trump seems primed to be it.

Obstruction seems just the kind of “high crime” that the Constitution’s impeachment provision was intended to expose to sanction by Congress and by law enforcement after impeachment succeeds.

This “I am the law” approach to governance is precisely what the Founders of the country were trying to overcome in fashioning a constitutional republic of laws, not of men. It was the essential lawlessness of the King of England, whose decrees were final and not subject to question, that the Founders intended to prevent when the office of the President of the United States was created with a provision for impeachment of the President for “high crimes and misdemeanors.” For a short, but incisive, treatment of this subject, read Impeachment, A Citizen’s Guide, by Cass Sunstein. [Note: I expect to discuss that, and some related books, in a forthcoming post.]

Mr. Dowd’s/Trump’s view that the President is both “the law” and “above the law” poses a threat to every American, including those who still think, if that word can be used here, that Trump is infallible. In this country, no one is immune from the reach of the law for crimes committed, including obstruction of justice.

No doubt an impeachment action based on obstruction of justice, collusion with enemies of the country, would end up in the Supreme Court pretty fast because Trump will never yield no matter how compelling the evidence. So, Mr. Mueller, the world turns its eyes to you. Whenever you’re ready. Bring it.

And Happy New Year.

The End of Life as We Know It

As an innately curious person, I read a lot: the Washington Post (all of it), excerpts from the New York Times and other news publications (courtesy of Apple iPhone) and, of course, many books. The books include much fiction, history and science. The history informs my understanding of the world in general, the fiction moves me in mysterious ways and the science … the science stuns and often frightens me.

I am currently plowing through Dark Matter and the Dinosaurs, subtitled The Astounding Interconnectedness of the Universe, by Lisa Randall, the Baird Professor of Science at Harvard, a member of the National Academy of Sciences, and on and on. She studies “theoretical particle physics and cosmology.” Professor Randall has a PhD from Harvard University and has held professorships at MIT and Princeton University. She has received honorary degrees from Brown University, Duke University, Bard College, and the University of Antwerp.

So, you might say, what’s this obscenely smart woman got to do with me or the “end of life as we know it?” Here is what.

Chapter 11 of Dark Matter is entitled “Extinctions;” it explains the five major mass extinctions that have been documented through the Earth’s roughly 4.5 billion-year existence, following the emergence of the first life (as revealed by fossils aged 3.5 billion years old). Chapter 11 has a subsection called “A Sixth Extinction?” I will not go on and on about this; rather, I will just set out some of the facts supporting Prof. Randall’s “very disturbing speculation” about what is happening right now to our planet, the only home humans will likely ever have.

During the past 500 years, 80 species of mammals, out of less than 6,000, have gone extinct.

That rate of mammal extinction is 16 times normal – in the last century the rate has increased by 32 times.

In the past century, amphibians have become extinct at a rate almost 100 times higher than before – 41 percent more are threatened now.

Extinction of bird species in the last century are higher than average by 20 times.

Changes in environmental factors now are similar to those that occurred during the Permian-Triassic Extinction some 250 million years ago.

Prof. Randall believes, as do almost all knowledgeable and qualified scientists around the world, that “Human influence is almost certainly largely to blame for the recent diversity loss.” Dark Matter (PB ed. 186)

80 percent of North American large animals were driven to extinction when Europeans arrived here.

These dramatic effects occur from a combination of pollution, land clearing that destroys habitat, overfishing, ocean acidification, species invasion and homogenization of animal populations.

Prof. Randall concludes the chapter with these observations:

Even if new species do emerge or conditions ultimately improve, a dramatically altered world is unlikely to be good for us as a species…. Life has evolved with delicate balancing mechanisms. It is not clear how many of these can be altered without dramatically changing the ecosystem and life on the planet. You would think we would have considerably more selfish concern for our fate – especially when so many such losses can most likely be prevented. After all, unlike the creatures 66 million years ago whose fate was determined by an errant meteoroid, humans today should have the capacity to see what is coming. [Dark Matter, PB ed. 188]

Sessions’ Testimony Evaluated – Part 3

In the previous post, I began reviewing the questioning by the Committee following Sessions’ opening statement. While this is “old news” in one sense, I believe Sessions will yet come to play an important role in the Trump-Russia saga; it is, therefore, appropriate to fully consider the issues raised by his testimony under oath before the Senate Intelligence Committee.

We left off the last post with a brief discussion of the inexplicable reality that Sessions claimed to have agreed with Deputy Attorney General Rosenstein in discussions prior to Sessions’ confirmation as Attorney General that Comey’s conduct as FBI Director was unacceptable, yet he never discussed the issue with Comey. Instead he, allegedly, waited until President Trump asked for recommendations from Rosenstein and Sessions regarding Comey’s status.

Of course, Trump subsequently stated in the Lester Holt interview that he had already decided to fire Comey because of the Russia investigation. One interpretation of this is that Trump set up Rosenstein and Sessions by asking for their recommendation when he didn’t need it, then used it as a cover which he subsequently blew due to his obsession with being seen as the all-powerful leader who needs no help from underlings in making important decisions.

Returning to the hearing, Senator Warner asked whether Sessions ever discussed with Comey what happened in the Comey-Trump meeting from which all others were asked to leave the room. Sessions never answered the question but did confirm that Comey was concerned about the meeting and that Comey’s recall of what he, Comey, said to Sessions about the meeting was consistent with Sessions’ recall.

This episode is concerning because it illustrates that these Senators, who have a critically important role to play as investigators, are perhaps not being properly supported by staff who should be passing them notes or whispering in their ear to assure that complete follow-up questions are pursued. Not all Senators are equally equipped to engage in effective cross-examination of evasive witnesses and should have some professional and timely legal help when it matters most.

One of the most interesting parts of the questioning related to Sessions’ justification for having recused himself from the Russia investigation but nevertheless participating in the firing of Comey. Sessions said the Russia investigation was just one of thousands underway and that he had a responsibility to manage the leadership of the Department of Justice and thus could, in effect, disregard the Russia investigation when making the leadership call.

There was considerable sparring between Senator Heinrich and Sessions regarding the latter’s refusal to answer questions about conversations with President Trump, to the point at which Heinrich flatly accused Sessions of impeding the Committee’s investigation:

you are obstructing that congressional investigation by not answering these questions, and I think your silence, like the silence of Director Coats, like the silence of Admiral Rogers speaks volumes.

Sessions then sought refuge in advice he claimed to have received from DOJ lawyers that Sessions’ preservation of Trump’s later ability to assert Executive Privilege was proper. Heinrich accepted that claim at face value without further exploration, wondering aloud why Sessions had not said that initially. Heinrich ended his examination with this statement:

I find it strange that neither you nor deputy attorney general Rod Rosenstein brought up performance issues with director Comey, and, in fact, deputy FBI director McCabe has directly refuted any assertion that there were performance issues.

It is worth noting that after Heinrich implicated Coats and Rogers, Chairman Burr came to their defense, pointing out that Rogers had testified in closed session for two hours and that all questions could then have been asked of him. It appears that political kinship counts for more than truth seeking in these proceedings.

I am going to close this post with a long quotation of the Q&A between Senator King and Sessions, interspersed with my “English translation” of Sessions’ responses. The quote mainly speaks for itself.

SESSIONS: What we try to do, I think most cabinet officials, others that you questioned recently, officials before the committee, protect the president’s right to do so [assert Executive Privilege]. If it comes to a point where the issue is clear and there’s a dispute about it, at some point the president will either assert the privilege or not or some other privilege would be asserted, but at this point I believe it’s premature. [emphasis added]

KING: You’re asserting a privilege.

SESSIONS: It would be premature for me to deny the president a full and intelligent choice about executive privilege. That’s not necessary at this point.

In English, Sessions is saying that he is not going to answer, now or in the future, questions that might reveal anything about the President’s statements or statement made to the President unless and until two conditions are met: (1) “the issue is clear and there’s a dispute about it,” and (2) the President asserts some privilege related to it. Until then, Sessions rather than the Intelligence Committee will decide whether it is necessary to take the questions to the President and right now it’s “not necessary” so let’s move on.” And he gets away with it again.

King then asked Sessions for his view about Russian interference in the 2016 elections. Sessions’ answer is astounding for someone who had previously claimed he was responsible for managing the Department of Justice:

KING: Do you believe the Russians interfered with the 2016 elections?

SESSIONS: It appears so. The intelligence community seems to be united in that, but I have to tell you, senator king, I know nothing but what I’ve read in the paper. I’ve never received any details, briefing on how hacking occurred or how information was alleged to have influenced the campaigns.

KING: Between the election, there was a memorandum from the intelligence community on October 9th, that detailed what the Russians were doing after the election, before the inauguration. You never sought any information about this rather dramatic attack on our country?

SESSIONS: No.

KING: You never asked for a briefing or attended a briefing or ruled are the intelligence reports?

SESSIONS: You might have been very critical if I as an active part of the campaign was seeking intelligence related to something that might be relevant to the campaign. I’m not sure —

KING: I’m not talking about the campaign. I’m talking about what the Russians did. You received no briefing on the Russian active measures in connection with the 2016 election.

SESSIONS: No, I don’t believe I ever did.

4th Circuit Decision on Muslim Ban — Excerpts

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.”