Tuesday, July 31, 2018

Another thug mob at Trump Tampa Rally

At tonight's Trump rally in Tampa the (almost all white) crowd indulged itself in a few rounds of intimidation of the press.  Surrounding CNN reporter Jim Acosta they chanted CNN sucks.  I'm sure that was later followed by "Lock her up" and other fascist favorites.  Reporters like Acosta who brave this thuggery deserve our thanks. - gwc

As China’s Woes Mount, Xi Jinping Faces Rare Rebuke at Home - The New York Times

As China’s Woes Mount, Xi Jinping Faces Rare Rebuke at Home - The New York Times
by Chris Buckley

BEIJING — China’s top leader, Xi Jinping, seemed indomitable when lawmakers abolished a term limit on his power early this year. But months later, China has been struck by economic headwinds, a vaccine scandal and trade battles with Washington, emboldening critics in Beijing who are questioning Mr. Xi’s sweeping control.
Censorship and punishment have muted dissent in China since Mr. Xi came to power. So Xu Zhangrun, a law professor at Tsinghua University in Beijing, took a big risk last week when he delivered the fiercest denunciation yet from a Chinese academic of Mr. Xi’s hard-line policies, revival of Communist orthodoxies and adulatory propaganda image.
“People nationwide, including the entire bureaucratic elite, feel once more lost in uncertainty about the direction of the country and about their own personal security, and the rising anxiety has spread into a degree of panic throughout society,” Professor Xu wrote in an essay that appeared on the website of Unirule Institute of Economics, an independent think tank in Beijing that was recently forced out of its office.
Other less damning criticisms, petitions and jibes about Mr. Xi’s policies have also spread, often shared through WeChat, a popular social media service. But this long, erudite jeremiad from a prestigious professor has carried more weight.
“Xu has written a challenge from the cultural heart of China to the political heart of the Communist Party,” said Geremie R. Barmé, an Australian scholar of China who is translating Mr. Xu’s essay. “Its content and culturally powerful style will resonate deeply throughout the Chinese party-state system, as well as in the society more broadly.”

Sunday, July 29, 2018

If Trump Knew About the Russia Meeting, He Could Be on the Hook for Conspiracy

If Trump Knew About the Russia Meeting, He Could Be on the Hook for Conspiracy  SLATE
by Prof. Jed Shugerman (Fordham Law School)
On Thursday, CNN reported a seemingly bombshell claim that Michael Cohen was in the room with several others when Donald Trump was told in advance of his son’s 2016 Trump Tower meeting with Russians promising dirt on Hillary Clinton. CNN, citing sources with knowledge, further reported that Trump approved of the meeting and that Cohen was willing to testify to special counsel Robert Mueller’s investigation to that effect. As stunning as this news might seem, if Cohen were to offer such testimony, it does not prove a crime on its own, and its impact depends heavily on other evidence, other witnesses, and later events. The case of obstruction against Trump is already strong without Cohen’s allegation, but Cohen could strengthen a growing case against Trump of conspiracy against the United States under 18 U.S.C Section 371.
keep reading

NY Times Publisher Rebuts Trump's Outrageous Tweet About their Meeting

Statement of A.G. Sulzberger, Publisher, The New York Times, in Response to President Trump’s Tweet About Their Meeting

Earlier this month, A.G. received a request from the White House to meet with President Trump. This was not unusual; there has been a long tradition of New York Times publishers holding such meetings with presidents and other public figures who have concerns about coverage.
On July 20th, A.G. went to the White House, accompanied by James Bennet, who oversees the editorial page of The Times. Mr. Trump’s aides requested that the meeting be off the record, which has also been the practice for such meetings in the past.
But with Mr. Trump’s tweet this morning, he has put the meeting on the record, so A.G. has decided to respond to the president’s characterization of their conversation, based on detailed notes A.G. and James took.
Statement of A.G. Sulzberger, Publisher, The New York Times:
My main purpose for accepting the meeting was to raise concerns about the president’s deeply troubling anti-press rhetoric.
I told the president directly that I thought that his language was not just divisive but increasingly dangerous.
I told him that although the phrase “fake news” is untrue and harmful, I am far more concerned about his labeling journalists “the enemy of the people.” I warned that this inflammatory language is contributing to a rise in threats against journalists and will lead to violence.
I repeatedly stressed that this is particularly true abroad, where the president’s rhetoric is being used by some regimes to justify sweeping crackdowns on journalists. I warned that it was putting lives at risk, that it was undermining the democratic ideals of our nation, and that it was eroding one of our country’s greatest exports: a commitment to free speech and a free press.
Throughout the conversation I emphasized that if President Trump, like previous presidents, was upset with coverage of his administration he was of course free to tell the world. I made clear repeatedly that I was not asking for him to soften his attacks on The Times if he felt our coverage was unfair. Instead, I implored him to reconsider his broader attacks on journalism, which I believe are dangerous and harmful to our country.  

Yes, Russian Election Sabotage Helped Trump Win Republicans want you to think that meddling didn’t figure in the 2016 election result. Don’t.

By Albert Hunt (former Washington editor, WSJ)

Saturday, July 28, 2018

Opinion | How the Suffrage Movement Betrayed Black Women - The New York Times

Opinion | How the Suffrage Movement Betrayed Black Women - The New York Times
The suffragist heroes Elizabeth Cady Stanton and Susan B. Anthony seized control of the feminist narrative of the 19th century. Their influential history of the movement stillgoverns popular understanding of the struggle for women’s rights and will no doubt serve as a touchstone for commemorations that will unfold across the United States around the centennial of the 19th Amendment in 2020.

That narrative, in the six-volume “History of Women’s Suffrage,” betrays more than a hint of vanity when it credits the Stanton-Anthony cohort with starting a movement that actually had diverse origins and many mothers. Its worst offenses may be that it rendered nearly invisible the black women who labored in the suffragist vineyard and that it looked away from the racism that tightened its grip on the fight for the women’s vote in the years after the Civil War.

Historians who are not inclined to hero worship — including Elsa Barkley Brown, Lori Ginzberg and Rosalyn Terborg-Penn — have recently provided an unsparing portrait of this once-neglected period. Stripped of her halo, Stanton, the campaign’s principal philosopher, is exposed as a classic liberal racist who embraced fairness in the abstract while publicly enunciating bigoted views of African-American men, whom she characterized as “Sambos” and incipient rapists in the period just after the war. The suffrage struggle itself took on a similar flavor, acquiescing to white supremacy — and selling out the interests of African-American women — when it became politically expedient to do so. This betrayal of trust opened a rift between black and white feminists that persists to this day.KEEP READING

150th Anniversary of 14th Amendment!

Friday, July 27, 2018

Eliot Cohen ~ Lifting security clearances is just the start


Thursday, July 26, 2018

Economics 101

Tuesday, July 24, 2018

OTHERWISE: A.G. Sessions humors Trump-jugen

OTHERWISE: A.G. Sessions humors Trump-jugen: As high school "leaders" gathered in Washington, Attorney General Jefferson Beauregard Sessions welcomed them.  Declaring &quot...

A.G. Sessions humors Trump-jugen

As high school "leaders" gathered in Washington, Attorney General Jefferson Beauregard Sessions welcomed them.  Declaring "I like this group - you're not going to back down"  he chuckled as they chanted "lock her up", repeating the phrase as one "heard a long time during the campaign".

It is a cultic ritual now to chant "lock her up" about the former United States Senator, Secretary of State, wife of a two term President, and candidate who out polled the sitting President who in his campaign and as President has welcomed such calls for vengeance against his adversary.  No longer do we hear civic virtue extolled. Instead the Attorney General refers to "snowflakes" and denounces public educators. “Rather than molding a generation of mature and well-informed adults, some schools are doing everything they can to create a generation of sanctimonious, sensitive, supercilious snowflakes. We’re not gonna have it,” he said to the Trump-jugen.
Appalling. - gwc

Sunday, July 22, 2018

Calling my fellow Republicans: Trump is clearly unfit to remain in office

Christine Todd Whitman ran an anti-tax campaign which got her elected and created New Jersey's fiscal debacle as a high tax yet debt-ridden state.  With the debt largely to government retirees whose pension contributions were shorted by a series of tricks and unrealistic investment growth projections.

But she appointed good judges - particularly Chief Justice Deborah Poritz - and the often unfairly maligned Peter Verniero.  And he cared about environmental protection.

To today's Republicans that made her a RINO.  But they, not she, are the frauds. - gwc
Calling my fellow Republicans: Trump is clearly unfit to remain in office

by Christine Todd Whitman (former Governor of New Jersey)

President Trump’s disgraceful performance in Helsinki, Finland, and in the days since is an indication that he is not fit to remain in office. Trump’s 2016 “America First” platform might be more aptly named “Russia First” after the disaster that occurred last week.

Trump’s turn toward Russia is indefensible. I am a lifelong Republican. I have campaigned and won as a member of the party, and I have served more than one Republican president. My Republican colleagues — once rightfully critical of President Obama’s engagement strategy with Russian leader Vladimir Putin — have to end their willful ignorance of the damage Trump is doing both domestically and internationally. We must put aside the GOP label, as hard as that may be, and demonstrate the leadership our country needs by calling on the president to step down.

Tomgram: John Feffer, The Jaws Presidency | TomDispatch

After sixty years of lecturing the world about human rights, setting up an America-centered international order, and invading the dissenters and deviants Barack Obama brought hope of change.  After a string of presidential "doctrines" the ridiculed Obama "don't do stupid shit" byword was a real step forward.

Nonetheless Obama, understandably saw it as impossible to just walk away from the debacle of our Iraw war of aggression, or from our initially plausible, ultimately hopeless intervention in Afghanistan.

So when Trump succeeded Obama our Afghan clients were still on the ropes, and the ISIS monster raged in the tinder dry cities of our catastrophic "Operation Iraqi Freedom".

Now we have the Flight 93 Presidency.  Headed to crash and burn in yet undetermined fields or cities.  - gwc
Tomgram: John Feffer, The Jaws Presidency | TomDispatch

***Although Trump’s approach to global affairs seems to have no particular rhyme or reason, it does have a certain rhythm. It has an insistent, urgent beat, something like the notorious two-note theme of the movie Jaws. The president not only wants you to believe that the world is a dangerous place, but that those dangers are approaching at a terrifying pace. Only Trump, he would have you believe, can save you from those sharp teeth inches from your throat.
Let’s call this approach Trump’s Flight 93 doctrine, after an infamous article, “The Flight 93 Election,” published in September 2016 in the far-right Claremont Review. According to its pseudonymous author, later revealed to be former George W. Bush administration staffer Michael Anton, liberals like Hillary Clinton were piloting America into catastrophe, aided, electorally, by “the ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty.” Only Donald Trump and his conservative backers -- like the heroes who charged the cockpit of hijacked United Flight 93 on September 11, 2001 -- could avert such a tragedy. “A Hillary Clinton presidency is Russian roulette with a semi-auto,” Anton wrote. “With Trump, at least you can spin the cylinder and take your chances.”
The analogy is, unfortunately, all too apt. Flight 93 crashed into a field in Pennsylvania, killing all aboard. It was heroism, yes, but at a very steep price. And playing Russian roulette with any kind of weapon rarely ends well.
No surprise, then, that, as the president spins the cylinder of the gun pressed to all our heads, the Trump Doctrine of non-stop risk-taking has turned out to be the most self-defeating approach ever adopted by a modern American president. In fact, it may turn out to be the last doctrine that the White House ever has the luxury to formulate.

Saturday, July 21, 2018

Israel Mocks Its Founding Ideals - Bloomberg

Israel Mocks Its Founding Ideals - Bloomberg
by Hussein Ibish

Israel’s Knesset passed a Jewish “nation-state” law this week that diminishes the rights and status of Arab citizens, about 20 percent of the country’s population. It’s a venture into the kind of ethnic nationalism that’s been gaining strength in many parts of the world and will harm Israel’s efforts to forge alliances with Arab countries and recapture the allegiance of alienated American Jews.

Obama at Mandela Day - July 2018

Thursday, July 19, 2018

Brett Kavanaugh would give Donald Trump unprecedented new powers.

Brett Kavanaugh would give Donald Trump unprecedented new powers.
by Jed Shugerman (Fordham Law School)

Does Brett Kavanaugh defer to precedent? The answer to this question could well determine the future of Roe v. Wade and reproductive rights in this country. Kavanaugh’s speeches and judicial opinions suggest that he would not defer to Roe as precedent, and that he would overturn it entirely.
Perhaps more surprisingly, he has hinted that he would essentially overturn the independence of the Federal Reserve and other vital independent agencies by handing control of them over to the president. And perhaps most disturbingly, Kavanaugh’s reverence of a Scalia dissent in a critical case about independent prosecutors—and the judge’s ideologically driven claims about that case—raises questions about how he treats precedent and whether he views the work of special counsel Robert Mueller’s office as appropriate.
It has never been a good idea to centralize the enormous power of the modern administrative state under one person. We are reminded every day how bad an idea that would be. And it is remarkable and extreme that Kavanaugh seems to think it is unconstitutional—under originalism or any theory of constitutional interpretation—to decentralize those massive executive powers, despite all the risks of self-dealing, cronyism, and partisan manipulations.*
It is important to appreciate that Judge Kavanaugh has a remarkably robust record on Roe and other major controversies. He’s not a stealth nominee. But his candid opinions and speeches played a role in getting the nomination, so it’s also fair to scrutinize them. A close reading of some of his major cases in the area of executive power shows a regular willingness to ignore precedent because he favors an ahistorical and extreme theory of presidential power. At the Supreme Court, this view could threaten the special counsel’s office and the independence of federal agencies like the Federal Reserve and the Federal Trade Commission. Independent agencies have been an important feature of the federal government for almost a century and a half, but Judge Kavanaugh has shown a willingness to jettison precedents that protect these agencies from presidential interference.
Two key features of such agencies are that 1) they are run by multimember bipartisan commissions and 2) the commissioners or officers cannot be fired at will by the president, but only for good cause. This structure is crucial for fostering expertise and long-term planning, insulated from party control and presidential meddling. Imagine if a president could meddle with the Fed to lower interest rates just in time for a re-election campaign, or pressure the Securities and Exchange Commission to benefit cronies and special interests. Independent agencies are designed to reduce presidential or partisan influence over currency and banking, Wall Street, trade policy, nuclear safety, and workplace and product safety, to name a few vital areas.
Even if Judge Kavanaugh is on the record signaling his opposition to major precedents like Roe, would he still respect precedent and set those leanings aside? Based on a reading of one of his most significant opinions and his answers in an American Enterprise Institute forum in 2016, Kavanaugh appears to not be particularly deferential to precedents, even canonical ones. For an ostensible originalist, Kavanaugh’s understanding of Anglo-American legal history is also flawed. He appears to have a further blind spot: a preference for centralized executive power and a deference to Scalia opinions, even if precedent and history do not support such conclusions.
On Wednesday, this revealing audio exchange from an AEI talk in 2016 with Judge Kavanaugh emerged:
Q: Can you think of a case that deserves to be overturned?
Judge Kavanaugh: Yes. (Laughter).
Q: Would you volunteer one?
Judge Kavanaugh: No. (More laughter, long pause). Actually, I am going to say one: Morrison v. Olson. It has been effectively overruled, but I would put the final nail in.
Morrison v. Olson was a 7–1 Supreme Court decision, written by Chief Justice William Rehnquist in 1988, upholding the Office of Independent Counsel as constitutional. In dissent, Justice AntoninScalia embraced the “unitary executive” theory, which asserts that the president has full control over the executive branch, especially in terms of the power to remove executive officers for any reason. Scalia believed the independent counsel was unconstitutional because judges selected the officer and the president did not have the power to remove that officer.
There was a reason Scalia was all alone in that dissent, though: He was wrong, and his historical assumptions were demonstrably wrong. Further, Morrison has not been “effectively overruled” as a judicial question, even if it has many critics and even if the Supreme Court has rarely relied on it since 1988.
Kavanaugh seems to go further and subscribe to a more extreme version of the unitary-executive theory, which would end the notion of independence in any government agencies. Trump defenders have used such a theory to argue that Trump could have fired FBI Director James Comey for any reason without it having constituted obstruction of justice. This version would also enable Trump to remove special counsel Robert Mueller, regardless of regulations protecting the special counsel’s office from at-will removal by the president or attorney general.
To see how far Kavanaugh might go with his unitary-executive theory, it’s important to examine his own rulings. Kavanaugh relied heavily on Justice Scalia’s lone dissent in Morrison v. Olson in a set of decisions on the Consumer Fraud Protection Bureau between 2016 and 2018. In PHH v. CFPB, Kavanaugh ruled (in my opinion, correctly) that the structure of the federal consumer watchdog violated the Constitution by saying the director could not be fired by the president, even for good cause. Even if he got the decision right, though, the breadth of his opinions is troubling. Kavanaugh questions the very existence of any job-security protections in independent agencies such as the CFPB.
In ruling against the CFPB’s structure, Kavanaugh cited Scalia’s lone dissenting opinion in Morrison v. Olson eight times in the initial panel decision and six times in his en banc dissent. As I’ve previously written, the Morrison dissent, which claimed government investigations and prosecutions were a “quintessentially” executive function, was starkly ahistorical. Among other things, it ignored the heavy role private prosecutions played in Anglo-American criminal law until the late 19th century as well as the role of Congress’ inherent contempt powers to prosecute nonmembers. As Asha Rangappa and I have pointed out, congressional Republicans have recently threatened to use subpoenas and contempt of Congress against the Department of Justice, underscoring how Scalia’s view of the unitary-executive theory in Morrison continues to be wrong.
Founding-era practices further undercut Scalia’s assumptions. Colonial prosecutors were often appointed by judges—not by executive officials—and many early state constitutions listed the prosecutors in the judiciary sections. Some of these constitutions gave legislatures or judges the power to appoint law enforcement officials. Virginia’s 1776 Constitution, drafted by James Madison, George Mason, and other founders, delegated to the legislature the power to appoint the attorney general and gave judges the power to appoint sheriffs, coroners, and constables. The Judiciary Act of 1789, meanwhile, gave federal judges the power to remove deputy marshals. Congress’ first draft of the Judiciary Act would have empowered the Supreme Court to appoint the attorney general, and district judges to appoint district attorneys. Congress deleted these provisions without explanation, but the draft showed that it wasn’t obvious to the founders that prosecution had to be an executive function.
So Scalia’s oversimplified history in Morrison was wrong. For Kavanaugh, it should be a problem that someone who claims to be an originalist has relied on demonstrably wrong historical assumptions. Even worse, Kavanaugh added this whopper in his footnotes:
Recall, moreover, that the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty.
Nearly universal consensus? There isn’t even a nearly universal consensus in the Federalist Society that Scalia was right. This is an exaggeration that further suggests Kavanaugh lives in an ideological bubble of highly motivated reasoning. Kavanaugh’s willingness to exaggerate in service of presidential power raises reasonable questions about his views of Mueller’s office, even if the special counsel’s office is more constitutionally defensible compared to the original Office of Independent Counsel.
As discussed, Kavanaugh’s indications that he’d go even further than Scalia’s dissent are even more unsettling. Critically, the judge has signaled that he’d overturn Humphrey’s Executor, an 83-year old canonical precedent that is a foundation for the modern administrative state. Overturning this precedent would mean an end to the political independence of agencies in banking, finance, trade, nuclear security, and more.
In Humphrey’s, the court ruled on President Franklin D. Roosevelt’s attempts to fire Federal Trade Commission Chairman William Humphrey because the president wanted to change course on trade and antitrust policy. But the FTC was designed as an “independent agency,” and by statute, the president could remove an FTC chair only for “inefficiency, neglect of duty, or malfeasance in office.” In other words, Roosevelt could remove Humphrey only for good cause, not because of policy differences. The Supreme Court ruled that Roosevelt could not remove Humphrey. This decision allowed Congress to protect agency officials from at-will removal if those officials have quasi-legislative or quasi-judicial roles, rather than solely executive roles.
Judge Kavanaugh is not fond of Humphrey’s, to say the least. In 2011, Kavanaugh wrote a concurrence in a D.C. Circuit ruling over a nuclear-waste controversy at Yucca Mountain. For 12 pages, Kavanaugh lambasted Humphrey’s specifically and independent agencies generally. He wrote that the Humphrey’s regime was undemocratic:
Because of Humphrey’s Executor, the President to this day lacks day-to-day control over large swaths of regulatory policy and enforcement in the Executive Branch. … Those and many other independent agencies have huge policymaking and enforcement authority and greatly affect the lives and liberties of the American people. Yet those independent agencies are democratically unaccountable—neither elected by the people nor supervised in their day-to-day activities by the elected President.
Kavanaugh went on to question the principle that agencies need independence to follow expertise “in an apolitical way.” He quoted a legal scholar trashing this critical precedent:Humphrey’s Executor, as commentators have noted, is one of the more egregious opinions to be found on pages of the United States Supreme Court Reports.” He noted that the other cases checking presidential power decided around the same time “have long since been discarded as relics of an overly activist anti-New Deal Supreme Court.” Kavanaugh then argued that Humphrey’s is in tension with more recent Supreme Court precedent.
Ultimately, Kavanaugh shifted tone at the end of this extended sweeping critique:
All of that said, Humphrey’s Executor is an entrenched Supreme Court precedent, protected by stare decisis. The point of explaining its history and continuing repercussions here is not to suggest that the case should be overturned.
Considering the previous 12-page critique, including the quote about “one of the more egregious opinions” on the books, though, one might be forgiven for inferring that Kavanaugh thinks the Supreme Court should overturn Humphrey’s directly. Of course, a circuit judge needs to back down and acknowledge stare decisis after such a scorching of a Supreme Court precedent. But a justice would be unconstrained to take the next big step.
Kavanaugh also returned to his critique of Humphrey’s in the CFPB case. In a footnote in his 2016 decision and another footnote in his 2018 dissent, Kavanaugh cited critics of Humphrey’sand cast further doubt on the validity of independent agencies. He even addressed the potential effects of overturning Humphrey’s.
If Kavanaugh was simply offering the plaintiffs a potential route to preserve an unlikely claim with these footnotes, he could have simply dropped a single sentence. But instead, Kavanaugh wrote a short essay on the plausibility of ending the long-settled and vital 130-year institution of independent agencies.*
There is ambiguity in this noncommittal footnote, but if Kavanaugh is seriously considering striking down the structure of independent agencies in the Trump era—as his writings imply—he needs to explain this position and acknowledge the dramatic consequences. It would be an unpredictable and disruptive change in the executive branch, in banking, markets, energy, and major other areas of regulation. And the effect would be suddenly to give the president—President Donald Trump—a lot more power over all of these areas of modern life. Imagine if Trump decided to start firing the Fed Reserve board members or Federal Trade commissioners, then installing his loyalists. What if he fired Mueller? Where would Kavanaugh stand?
Interestingly, Kavanaugh cited a particularly colorful passage from Scalia’s Morrison dissent a few times over the course of his Morrison-heavy opinions. Here’s that full passage:
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Kavanaugh doesn’t come as a wolf, but he puts a lot of wolves in his citations and footnotes. To mix classic Scalia metaphors, he puts wolves in mouseholes. All of these citations force the question: How much would a Justice Kavanaugh really adhere to precedent? When Kavanaugh casually entertains overturning a nearly century-old canonical case with chaotic ramifications, he’s telling us, “Not much at all.” When he gives Scalia’s dissent more weight than the Morrisonmajority and plays with the idea of uprooting Humphrey’s Executor and 130 years of independent governmental agencies, we have to ask: What does that mean for Roe v. Wade,Mueller, the Fed—and other foundations of modern American life?* 
Correction, July 19, 2018: Due to an editing error, this piece originally said that Judge Kavanaugh seems to think centralizing executive powers is unconstitutional. This article also originally described independent agencies as being 150 years old, not 130 years old, which is the correct age.

Wednesday, July 18, 2018


Not sure whether to laugh or cry.  Or pray.

I Led the F.B.I. Mueller Is Just Doing His Job - William Webster - The New York Times

Opinion | I Led the F.B.I. Mueller Is Just Doing His Job - The New York Times
by William Webster (former Director of the FBI and the CIA)
In 1978, I was asked to head the F.B.I. at a perilous time. The bureau was mired in controversy, stung by criticism over Watergate and warrantless wiretaps, beleaguered by congressional investigations. I took on the job because, as I said back then, “this institution was too important to lose.”
We worked hard to restore trust. Ronald Reagan later appointed me to do the same at the C.I.A. after the Iran-contra scandal. Having served my country through these challenging chapters in American history, I am saddened by what I see happening today to the investigation led by the special counsel, Robert Mueller. From President Trump’s tweets to broadsides from his lawyer, Rudolph Giuliani, denouncing the investigation, to calls from congressional Republicans for the ouster of Mr. Mueller’s boss, Rod Rosenstein, the deputy attorney general, it’s destructive.
I was disappointed to see Mr. Trump this week appear to express greater confidence in the word of President Vladimir Putin of Russia than in the unanimous judgment of the men and women of America’s intelligence community, whom I once led. Faith in the justice system and in our intelligence agencies cannot be collateral damage in a partisan grudge match. No matter which party wins, America loses; trust in the rule of law is always too important to lose. Sixty years ago, I was just one of many young Americans who enlisted and put on a uniform to defend America’s values in the world; today, we must defend those values here at home.
I’m a lifelong Republican. Mr. Giuliani was a fine federal prosecutor during the years I led the F.B.I. It is because he knows better that I expect him to do better than to demand that the Justice Department shut down an investigation into possible Russian interference in the 2016 election. That investigation has already led to 35 indictments — including those last week of 12 Russian intelligence officers in the hacking of the Democratic National Committee and the Hillary Clinton presidential campaign — as well as five guilty pleas and one prison sentence. To accuse Mr. Mueller of trying “to frame” Mr. Trump is wrong.

Monday, July 16, 2018

Do you believe Putin or U.S. Intelligence?

Here's the transcript of Trump's answer when he was asked whether he believes Putin or U.S. intelligence.

Sunday, July 15, 2018

Brett Kavanaugh’s record on the rule of law is much worse than his defenders contend.

Brett Kavanaugh’s record on the rule of law is much worse than his defenders contend.  // Slate
by Bob Bauer and Ryan Goodman

As Brett Kavanaugh’s Supreme Court confirmation process begins to get underway, some commentators have sought to minimize the significance of the sweep of Kavanaugh’s writings on the subject of presidential immunities. That these commentators—Noah FeldmanAsha Rangappa, and Benjamin Wittes—are distinguished and influential in the public debate make it all the more important to counter their claims.
The issue is the narrow—yet highly important—question of what Kavanaugh has to say about the conditions under which he would recuse himself from any case involving criminal investigations that implicate the president. What he concludes about his recusal obligations may turn out to be of great significance to the court and the Trump presidency.
The recent Feldman, Rangappa, and Wittes commentaries have mistakenly suggested that concerns about Kavanaugh’s views on this topic are ill-placed. They have come to focus in particular on what the judge has written about independent investigations of the executive branch and on the role of Congress in resolving the question of a president’s amenability to the legal process. On the first point, they have noted that, as Kavanaugh has stated the point, he favors “some mechanism … in some cases” for the appointment of a prosecutor outside of existing Department of Justice personnel. On the second, Kavanaugh has written that it should fall to Congress to protect the government from the disabling effects of criminal prosecution of a sitting president by passing a law prohibiting indictment while in office. It is Kavanaugh’s case for Congress’ role that, from the perspective of these commentators, should assuage concerns that as a justice he would be predisposed to find that the Constitution itself insulates the president from legal accountability while in office.
While it is true that Kavanaugh supports some special counsel investigations, he would very specifically and most profoundly exempt the president from them. Indeed, Kavanaugh would go much further in exempting the president not only from prosecution and indictment but also from Department of Justice investigations while in office—and not only investigation but also depositions or questioning in civil litigation or criminal investigations. Under Kavanaugh’s proposal for a revamped prosecutorial structure, the president could nominate a special prosecutor to investigate alleged wrongdoing in the executive branch, but the president could never be one of the investigation’s targets. He writes that a special counsel “should never be appointed to prosecute the president (because a sitting president should never be subject to criminal indictment until he leaves office or is removed by impeachment proceedings).”
So Judge Kavanaugh’s embrace of “some mechanism” for special counsel investigations, but only a mechanism that leaves out the president, will not allay concerns about his pro-executive bias on these questions. And it is incorrect to claim, as Wittes has, that Kavanaugh’s scholarship “makes a strong prudential case for independent investigations of the President and other high officials”—Kavanaugh has written very explicitly and at length that he would place a president above any such law. What’s more, Kavanaugh’s proposals for a reform of the independent counsel arrangement would leave the president with unfettered authority to protect his own administration from accountability under the law. The special counsel could be appointed only on the nomination of the president; the president would not be required to appoint a special counsel; and if the president does appoint one, the president would remain fully involved in all decisions about the prosecutor’s jurisdiction and could remove the special counsel at will without cause (for any reason or no reason). What’s to stop a president from abusing such blanket authority?
Indeed, even Kavanaugh himself admitted in his 1998 law review article that the use of “the term [independent counsel] would be inappropriate under the regime proposed here because ‘independent’ connotes a counsel appointed outside the Executive Branch.”
Then there is the central question about Kavanaugh’s views of the amenability of the president to legal process while in office as a matter of constitutional law. It seems very apparent from Kavanaugh’s writings that he has second thoughts about Clinton v.
 and the propriety of the court’s decision in that case involving civil litigation. In that regard, he is not alone. But one cannot accurately claim, as Rangappa wrote, that Kavanaugh has remained “agnostic” on these constitutional questions.
It is further striking that Kavanaugh’s assessment of the issues of criminal indictment are fully consistent with the reasoning of Office of Legal Counsel opinions holding that a sitting president cannot, as a constitutional matter, be indicted in office. It is not simply that Kavanaugh believes exposure to indictment is unwise because it would be a crippling blow to the conduct of government (on his account). He makes very clear that this policy perspective is grounded in constitutional considerations—which is precisely how the OLC came to its (mistaken) conclusion.
So Judge Kavanaugh writes:
The Constitution of the United States contemplated, at least by implication, what modern practice has shown to be the inevitable result. The Framers thus appeared to anticipate that a President who commits serious wrongdoing should be impeached by the House and removed from office by the Senate—and then prosecuted thereafter. The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.
It is hard to read this passage in any way other than to suggest that the “policy” he favors is the one that the Constitution of the United States “contemplated”—indeed “seems to dictate.” Like OLC, he is effectively reading the policy into the overall Constitution design, with the result that the best policy is, at the same time, the right constitutional outcome.
It is also not just a single passage where Kavanaugh strongly signals his constitutional leanings. The passage is followed by a lengthy discussion that includes treatment of original understandings at the constitutional convention, the Federalist Papers, and the position on the constitutional law question taken by Robert Bork as solicitor general, Leon Jaworski as Watergate’s special prosecutor, and a federal judge in the case of Nixon v. Sirica. Kavanaugh sums up one section of his analysis in saying, “Thus, as the Constitution suggests, the decision about the President while he is in office should be made where all great national political judgments in our country should be made—in the Congress of the United States.”
Notably, Rangappa’s discussion contending that Kavanaugh has remained agnostic on the constitutional law question omits the 1998 law review article in her analysis. And Feldman writes, “Although Kavanaugh didn’t expressly say that a sitting president may constitutionally be indicted, it is a plausible implication of his article.” Neither of those positions—that Kavanaugh has remained agnostic on the question or that his writing implies he believes the Constitution allows the indictment of a sitting president—is sustainable. Wittes writes, “I suppose it is possible to worry that Kavanaugh’s stated policy preferences with respect to congressional action tease his likely judicial holdings on those subjects.” That significantly minimizes and overlooks what Kavanaugh has said, directly and indirectly, about the constitutional question in these law review articles.
This history does not square with the suggestion that, because Kavanaugh has proposed that Congress enact a protection against prosecution of a president while in office, he is “implying” that there is no constitutional basis for this immunity. There is no need to look for “implications” when the judge has embraced just such a constitutional rationale. Moreover, it “implies” little to argue for a congressional enactment in the first instance. If Congress does not act—and there is absolutely no likelihood that it would ever do so—the courts would in no way be hindered in reaching the same result as a matter of constitutional interpretation. 

Further, in a judicial opinion in 2016, Judge Kavanaugh unequivocally embraced Scalia’s rejection of the independent counsel on a constitutional basis, writing, “the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty.”
What’s more, Kavanaugh also strongly indicates that his objections to indictment also lie against investigation. In his 2009 Minnesota Law Review article, the judge specifically links the problematic features of criminal process to both indictment and investigation. He writes: “The point [of deferral of prosecution] is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of out of office.” He follows shortly thereafter with a footnote again setting out as his personal judgment, “I think this temporary deferral also should excuse the President from depositions or questioning in civil litigation or criminal investigations.”
Whether Judge Kavanaugh is right or wrong in his policy or constitutional judgments is beside the point. He has quite clearly declared his position on specific issues already in play in a criminal investigation that directly affects the president. The question of his recusal from participation if those issues come before the court could hardly be more squarely, plainly presented.
This recusal question does not just arise in the normal course, as it might (and has) for many new justices. Rule-of-law controversies have virtually defined this administration as the president demands “loyalty” from senior law enforcement officials, insists on immunity from obstruction of justice charges, and boasts of the “absolute” power to pardon anyone for any reason, including himself.  He has aggressively staked out these positions, with full support from his legal team, in the context of an unprecedented investigation into a foreign power’s intervention on his behalf in the last election. It is in these extraordinary circumstances that the Senate will examine Judge Kavanaugh’s well-developed and strong views on the criminal prosecution of presidents, which are consistent with (if considerably more sophisticated than) those of the president under investigation who has nominated him. The issue of those views and whether they compel recusal will require thorough exploration.
If a Justice Kavanaugh were not to recuse on, say, the question presented by the president’s refusal to comply with a special counsel subpoena for his testimony, and he voted with the president in a close vote, it is not hard to imagine the threat to the court’s credibility.
Moreover, by court practice, he would not explain the reasons why he elected not to recuse, which would inevitably exacerbate suspicions. If, however, he did recuse, and the vote turns out to be 4–4, his absence would render the court powerless to decide a case of historic significance.
These are among the issues that the Senate would have to confront in their questioning of Judge Kavanaugh. 

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