Month: September 2018

Why Kavanaugh?

After last week’s hearings, it’s difficult to understand:  why did President Trump pick Brett Kavanaugh for the Supreme Court?  And, now that there is an FBI investigation going on, why is President Trump (despite his public statements) limiting the investigation to four witnesses, and perhaps even restricting what questions those witnesses can be asked?

Clearly, Brett Kavanaugh has staked his entire career on this nomination.  If he fails here; if corroborating evidence shows that he committed perjury in front of the Committee, and even worse, an attempted rape as a teenager:  his current judgeship on the Appellate Court, his license to practice law, and perhaps his freedom is in jeopardy.

Judging from the reactions of the Republican Majority, there must have been some warning that Kavanaugh had problems with his background.  When the letter from Dr. Ford became public, in only twenty-four hours a letter was produced with sixty-five female high school friends (not classmates – he went to an all-boys private school) attesting to Kavanaugh’s good behavior as a teenager.

And Senate Majority Leader Mitch McConnell was well known for saying he didn’t want Kavanaugh as the nominee.  Perhaps McConnell was concerned backlash from Kavanaugh’s work on the Starr Investigation into President Clinton (resulting in Clinton’s impeachment,) but he might well have heard some rumors of “life as a Georgetown Prep Boy.”

Why does Kavanaugh appeal to President Trump?

Let’s get the ugly ones out of the way.  Kavanaugh has problems with accusations of sexual assault and impropriety; certainly a situation the President shares.  And Kavanaugh is tied into the “Clinton Conspiracy World:” he spent millions of taxpayer dollars re-investigating again and again Clinton staff member Vince Foster’s suicide, trying to tie the Clinton’s to his tragic death.  He played “hard ball” with President Clinton, demanding that he be questioned about the intimate details of his relationship with Monica Lewinsky.  (No wonder Kavanaugh thinks that the Clintons were trying to get “paybacks” – he’s earned them.)

All of these are attractions for a President who continues to use Hillary Clinton as his bête noire. And Trump is antagonistic to Bill Clinton as well; seeing him as “getting away” with same things he did.

Above that, Kavanaugh is a disciple of the Federalist Society, and represents the culmination of a forty year program to overtake the Supreme Court.  The Federalist Society views themselves as “originalists” in interpreting the Constitution:  taking the original meaning of the authors as the only meaning for the document.  That the authors didn’t envision the problems of the current era can be solved only through legislation passed by Congress, not be expanding the interpretation of the authors words.

This view puts a premium on the property rights of individuals, and tight restrictions on the powers of both the legislature and the judiciary.  A good example is the Supreme Court decision in Citizen’s United, where the Court viewed corporations as having free speech rights under the First Amendment, and therefore able to donate money directly to political campaigns.  Further Court decisions have removed limits on much of campaign funding, calling dollar donations as an exercise in unlimited free speech.

The “right to privacy” integral to the Roe v Wade decision is another area of law that the Federalist Society would like to restrict.  That expansion of the Due Process clause of the 14^th Amendment is seen as far beyond the original scope of the authors.

Essentially then, the “originalists” would require that to expand the Constitution to meet the needs and views of a modern era, the Constitution would need to be constantly amended, a process that has only been done seventeen times in since 1791.  This onerous exercise would prevent any kind of more rapid adaptation.

And Kavanaugh has espoused a view of the Presidency centralizing all authority of the Executive Branch in one office.  President Trump, in Kavanaugh’s view, should be immune from not just indictment, but subpoena and any “questioning” by Executive branch departments (particularly Justice) as he has ultimate and total authority over them.

Kavanaugh sees the only check on the President as legislation passed by Congress and impeachment and removal from office.  That view particularly must make him very popular with the current President.

Mitch McConnell has pledged to “ram Kavanaugh through.”  Trump even last night called Kavanaugh a man of; “…really quality character, one of the most accomplished legal minds of our time, who has suffered…”

Regardless of the results of the FBI investigation, the Senate will vote on the fate of Judge Kavanaugh.  Trump and McConnell are “all in;” there’s more for them to gain even in defeat (by the “Democrat conspiracy” Kavanaugh ranted about) then by withdrawal.  Buckle up for this week!

The Ring of Truth

It felt a little bit like getting ready for the “big game.”  I was up early, getting everything else that needed to be done, done. I made a big breakfast, got the right TV stations up, and at 10:00 am I sat down to watch history.  Gavel to gavel, taking breaks only when Chairman Grassley did, I watched the Kavanaugh hearing from Grassley’s first statement to Kamala Harris’s last question.  It was an inflection point in America, both about our current crisis in politics and the Supreme Court, and in culture.

In full disclosure, I am a “liberal Democrat,” and I would prefer Judge Kavanaugh not get on the Court. And I do think the Democrats on the Committee have pulled off the political “play” that Lindsey Graham threw his “hissy fit” about.  Democrats, operating from a two-vote deficit, have done everything they could do to try to stop Kavanaugh’s confirmation.  And before anybody cries “foul,” they better look at Merrick Garland just a couple of years ago.  There are no rules in a “knife fight.”

The Republicans picked the wrong man, and they know it.  There was a reason that Mitch McConnell, the master Republican Senate strategist, wanted anyone on the Federalist Society list besides Kavanaugh.  Whether they had whiffs of the teenage scandal I don’t know, but they knew that Kavanaugh was the most controversial of their choices. But President Trump chose Kavanaugh, no doubt because of his views on Presidential power and immunity from prosecution, and, to quote the judge himself, they are “reaping the whirlwind.”

But yesterday wasn’t about the politics of Brett Kavanaugh’s nomination.  Yesterday was about whether a man should be accountable for his actions as a boy.  It was about whether we should allow a man to lie to the Senate, and the country, about his past for political expediency, or whether we should hold him accountable.  It was about truth.

The Judiciary Committee determined that the process of deciding about Judge Kavanaugh would be made only by hearing Dr. Ford and the Judge; making a decision using just what they had to say.  They chose not to have other witnesses, including the one eye-witness to what happened. They chose to decide just on the statements of the two principals, and we too, as a nation, are forced to decide on those terms.

My last job before retiring, was “judging” the actions of teenagers.  As a Dean of Students in a 1200 kid high school, I dealt with everything from spitballs to rape.  When a “real” victim told their story, you could hear truth in the details, in the feelings, in the “out-of-body” view, and the clear emotional terror.  Truth has a finality, and a clarity, and a simplicity that all of the fiction a Dean of Students hears the rest of the day is lacking.

Truth:  when Dr. Christine Blasey Ford stepped up to the table, shaking, and raised her hand to be sworn in, it was clear we were hearing truth. She answered questions carefully, effectively, and without evasion.  She told what she knew, and clearly acknowledged what she did not know.  She was an “unimpeachable” witness:  and it was clear when she was done that the harsh laughter of teenage boys echoed not just in her memory, but throughout the national conscious.

And as Dean of Students I dealt with “entitled” students:  those who felt that due to their parents, or their connections, or their membership on a team or in a social group; they were entitled to do whatever they wanted. When that entitlement was questioned; the result was often disbelief and anger; outrage that their “standing” was questioned.  It was called the “good kid” defense:  “I’m a good kid, I couldn’t do anything wrong, and if I did, I should be excused.”

Outrage:  when Brett Kavanaugh walked into the hearing room, shaking with rage, choking with tears; he was demanding his “anointed place.” His insolence and disrespect towards the Senators, his evasiveness answering questions, and his clear terror of an FBI investigation that would include his teenage friend Mark Judge:  this did not have the ring of truth.

The Republicans on the Judiciary Committee have set the terms.  We can only decide by listening to these two, Dr. Ford and Judge Kavanaugh. We are not allowed to search further, hear testimony, or investigate what happened.

On that basis the answer was clear:  truth versus entitlement.  Truth should win out, and Judge Kavanaugh should not be on the Supreme Court.  But this is not a high school, it is the highest stakes political “game” in the United States; so I don’t really expect that truth will win.  What I do expect is that America will see truth denied; and vote accordingly.

 

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White Male Privilege

It was 1974.  I was a high school senior with just above average grades, high test scores, and even higher aspirations.  My college choices included Harvard, Dartmouth and Williams, as well as Washington, Miami and Denison.  1974 was the end of the era where a white male high school student was automatically given a “leg-up” in the admission process.  It was also a time when high school guidance counselors had an “inside track” with some schools.

Harvard called my guidance counselor – and told her I was in.  She ran down to let me know, in class, and for twenty-four hours I was in another world.  Then the very thin letter arrived, embossed in Crimson, saying that I would not be going to Cambridge, Massachusetts in the fall.  Williams also sent a letter, still thin, but letting me know that I was on the “waiting list.”

My counselor came back down and explained that this was a result of “affirmative action,” that a similarly qualified minority student was admitted, where I was left on hold. I was OK with that.  I recognized that the benefits the generations before me received were unfair to everyone else.  In 1974 we were trying to straighten out the world, and I was a part of that process.

In the end, I went to Denison University in Granville, Ohio, and loved it.  Denison challenged my mind, and gave me the flexibility to pursue all of my interests:  politics and teaching (and ultimately coaching.)  The choices of life plot a course, and the course that was set with the Denison decision is one that has been incredibly satisfying and fulfilling.

But let’s get back to 1974 and the supposed end of white, male privilege.  While the more regulated processes, college admissions and such, were being altered, the cultural aspects took a lot longer to change.  The culture said, “boys will be boys” to excuse incredibly poor behavior.  Whether it was hazing on athletic teams, or drunken sexual assaults in quiet suburban neighborhoods; that “privilege” continued for decades, and  in some places, goes on today.  Those drunken “rites of passage” were the way it was supposed to be, no matter who got hurt.

It wasn’t everyone. The movie Dazed and Confused was about brutal hazing in 1976, but that was in Texas and the rest of the world wasn’t quite so crazy.  Generally though, the white male privilege continued in one form or another, as does the tradition of alcohol, drugs and sex, both consensual and forced.

So it’s not a huge surprise that Brett Kavanaugh, class of 1983, might well have participated in some of these actions.  It’s also not a surprise that a lot of folks, particularly white males, are defending him. This may be the “last bastion” of privilege, what happened behind wealthy suburban doors when the “adults” weren’t around.

There has been a great deal of discussion that the “Trump Era” is a throwback, a response to all of the dramatic social and cultural changes of the last two decades.  One of the original essays in this “Trump World” series, Trump World and the Beaver, outlined many of those changes.

Mr. and Mrs. Cleaver never dealt with Wally and the Beav going to a drunken party; but it certainly happened.  We can see this Kavanaugh nomination debacle as another battle in changing our world; not just because of what Kavanaugh represents as a future vote on the Supreme Court, but because of the symbolism of his past.

It will play out today, probably in excruciating and embarrassing detail.  We will know far more about Brett Kavanaugh as a youth then we want to, even if there remains a question about what he did.  Judging from what evidence is available, Kavanaugh was more likely “Dazed and Confused” then “the Beaver.”  But what we will see, for sure, is a stand; a stand for white, male, privilege, led by Senators who gained every benefit of that bias.

 

 

 

 

 

 

The Integrity of the Court

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority – US Constitution, Article III, § 1

John Marshall was the fourth Chief Justice of the Supreme Court.  He was a Federalist, appointed by President John Adams.  After the election of 1800, the Democratic Republicans were in power, with Thomas Jefferson as the new President. While the Supreme Court was a theoretically a co-equal branch of the Constitution, its position as the third branch (Article III) symbolized its standing – third in line.

Every branch of government determined what the new Constitution meant, and they did it with every action they took.  The Congress ultimately had the power of the purse, the ability to pay or withhold payment for government actions.  The President had the “trappings” of government power; the military and the Federal law enforcement agencies.  But what did the Supreme Court have?

They didn’t have prosecutors, those were in the Executive Branch.  The Court could only hear cases brought to them; it could not make an independent determination of law without a case.  They had no enforcement mechanism; the Court could make a ruling, but another branch had to enforce it (thirty years later President Andrew Jackson would supposedly say about the Cherokee removal:  “… Marshall made his decision, let him enforce it”.)

They had no control over their membership:  the President appointed Justices and the Senate confirmed them.  They had no control over their number; it started as five, then seven, then nine, then ten, back to seven, and finally in 1869, seemed set at nine.  But Congress can still determine that number, and it can be changed by their will (with the current controversy the Court membership should keep that in mind.)

The power of the Supreme Court was shrewdly established by the decisions of Chief Justice Marshall, with the most famous being Marbury v Madison.  In that decision, Marshall established that the Court could determine the Constitutionality of the acts of Congress.

While we think “our time” is the most political and controversial ever, the election of 1800 was just as ugly, and just as divided as we are today.  On losing office, President Adams tried to “pack” the judiciary with Federalists (including Marshall himself.)  The “last minute” nature of this action (they were called “Midnight Judges”) meant that not all of the legal paperwork appointing these judges was delivered before Adams left and Jefferson took charge.  Jefferson instructed his Secretary of State, James Madison, not to deliver them.

Marbury went to Court to get his appointment, legally signed and sealed by the former President.  Marshall wrote that Jefferson was wrong in not delivering the document, a statement that could have led to a crisis if Jefferson defied the Court.

But Marshall went onto say that the law under which Marbury was suing in Court, passed by Congress, unconstitutionally expanded the power of the Court.  He then declared that act of Congress unconstitutional, gaining the power of judicial review, determining the meaning of the Constitution, for the Court.

Marshall got his “shot” at Jefferson, and he also got his “shot” at the now Democratic-Republican Congress.  But most significantly he established the role of the Supreme Court in our three-branch system, in a most highly charged political atmosphere.  He did it without an Army, and through the power of his decision. And, like it or not, his decision, and the many others he wrote in his thirty-four years at the helm, established the third branch of government.

Politics and the Supreme Court are old friends.  The controversy over the Kavanaugh nomination may seem unprecedented, but the Court was born in political turmoil, and its power forged in the first peaceful democratic transfer of power in 1800.

Today’s controversy, combined with the long brewing battle over the makeup of the Court, is not much different from the “Midnight Judges” of John Adams.  There has been a long-term strategy of the “right,” represented by the aptly named Federalist Society, to gain control of the Court. They are on the cusp of success, Kavanaugh’s confirmation represents that fifth and decisive vote on this nine member court (the left has done their best as well, with four “liberal” justices already seated.)  Just as our Congress and our politics have lost a “middle ground;” so has the Court.

What Kavanaugh did as a younger man is important.  But, if he committed those alleged actions, what is so much more important is what he is doing now.  His denying that these actions even occurred, if they actually did occur, is perjury.  Integrity means accepting responsibility for past actions:  and integrity is what the Supreme Court stands upon.  Kavanaugh’s integrity is in question, either he is being falsely accused, or he is lying now.

But politics matter too, just as they did in 1800.  If Kavanaugh lies tomorrow to the Judiciary Committee, don’t be surprised if a future Congress doesn’t reopen the case, and potentially remove Kavanaugh from the bench. And that’s the risk that the Republicans are taking, as this nomination no longer is about Roe v Wade or the influence of the Federalist Society. It’s now about the honesty of the nominee:  and if he is dishonest, that opens a future door to his removal, and a change in the balance of the Court once again. Democrats know that too, which is what makes tomorrow’s testimony, on the record, so important.

 

 

The McCabe Memo

Last Friday, the New York Times ran a story. The Times,quoting memos written by then Deputy FBI Director Andrew McCabe, claimed that Deputy Attorney General Rod Rosenstein spoke about wearing a “wire” when talking to the President, and mentioned using the 25^thAmendment process for removing Mr. Trump from office.

The Times article stated that McCabe wrote the memos to “memorialize” events at the time, which was immediately after the firing of Director James Comey and before the appointment of Special Counsel Robert Mueller.  Rosenstein at first denied the article, then claimed that the “wire” comment was sarcasm.

The facts of the article raise the questions:  was the Deputy Attorney General of the United States looking to remove the President of the United States?  Was he also trying to get evidence from the President to use in some kind of legal proceeding against him?  If that was the case, was he acting to protect the country, or was he acting as part of a “deepstate” conspiracy to stop the Trump Presidency?

At the time, a Rosenstein “joke” about a wire might have made sense. Right after the firing of Comey, Trump blamed Rosenstein’s memo for the firing.  Rosenstein was “betrayed” by the claim, and supposedly considered resigning at the time. In that context, a joke about “wearing a wire” might have been ironic, if not funny.

And Rosenstein, a career attorney with the Justice Department, was well aware that the 25^th Amendment is a burdensome and technical process, and also one in which Deputy’s had no place.  The 25^th requires the Vice President and half of the Cabinet members, something that Rosenstein had no control or say about. In addition, he certainly knew that “wearing a wire” would make him a witness against the President, and force him to recuse himself from the investigation.  It seems unlikely that he would even bring it up.

So what were the reasons for the New York Times getting the story?  Who were the anonymous sources that gave them the McCabe memos?

The memos were controlled by three entities.  The FBI and the Department of Justice of course had possession of the memos, as did McCabe himself.  The Mueller investigation team also was given copies of the memos when McCabe was fired from the FBI.  Other than that, the memos were held “in secret.”

The memos were part of the information subpoenaed by the House Intelligence Committee Republicans, led by the Freedom Caucus members.  This has been a “bone of contention” between the Committee members and Rosenstein, who has withheld the memos and other information as part of an ongoing investigation.  Supposedly then, the House members didn’t have access to the memos, yet.

That leads back to the three entities that did have access.  There have been NO leaks from the Mueller Team, and it is unlikely they would have broken precedent in this case. Rosenstein has been the “air cover” for the Mueller investigation; taking the heat from Congress and the President.  There is no value for the Mueller team to put Rosenstein in jeopardy.

McCabe himself has the memos, and knows what “he knows.” McCabe may also be bitter about what happened to him at the FBI; fired just twenty-four hours before earning a full retirement.  Rosenstein as Deputy Attorney General was ultimately in charge of the Department and therefore the firing.  The problem with this scenario, is that McCabe himself was a fierce advocate for the Russian investigation of the Trump campaign.  Attacking Rosenstein is likely to result in compromise in the investigation, presumably a result McCabe wouldn’t want.

This leaves us with the FBI and the Justice Department itself. If the memos were leaked by them, who would they have given them to, forces for or against?

Forces in the Department against the President, might have used the memos to further the narrative that the President was erratic and out of control.  This was in the Times anonymous letter from inside the White House, and the  Bob Woodward book, Fear.  The memos might add to the pressure to “invoke the 25^th.”

The problem with that theory is that the removal of Rosenstein, a foreseeable result of the memos publication, removes protection from the Special Counsel and puts the entire investigation in jeopardy.

The President’s allies, particularly his advisors on Fox News, have urged him NOT to fire Rosenstein.  They believe that removal will precipitate a crisis in Congress, ultimately resulting in a more protected Special Counsel investigation.  They argue that the memos must have been leaked by those opposed to the President.

On the other hand, the Freedom Caucus has made it clear that they want to see Rosenstein removed; in fact, they have filed a motion of impeachment in the House of Representatives.  The memos further their conspiracy theory that the “deep state” Department of Justice was working to remove the President.   The Freedom Caucus also act as if “…blowing everything up” is to their advantage, and starting this crisis might be there way to light the fuse. So if they got their hands on the memos, it might make sense for them to leak it to the press.

It is likely that someone in the Department of Justice accessed and leaked the memos to one side or the other.  Either side might have fed them to the Times, (though I’d bet on the Freedom Caucus.)

What happens next?  Trump now has some cover to fire Rosenstein; those Republicans who called for Rosenstein’s protection will be placed in the “deepstate” conspiracy. But if Trump fires Rosenstein, the Federal Vacancies Act will not apply.  That Act allows the President to temporarily (ten months) fill a vacant position with any executive branch member who was approved by the Senate (see Mick Mulvaney’s appointment to the Consumer Protection Board after Rich Cordray resigned.)  Trump could pick someone who would restrict or even end the Mueller investigation. But to do that, Rosenstein needs to resign, not be fired.

On Thursday the President and Rosenstein will meet (in part a distraction from the Kavanaugh hearings.)  The result of that meeting will determine what happens next.  In all likelihood, Rosenstein won’t resign even if asked, and Trump won’t add to obstruction of justice by firing him.

And the games go on.

 

 

 

 

 

 

Notes after a weekend off:

Last night another victim of a young Bret Kavanaugh came forward to tell her story. It’s four days out from the Judiciary Committee Hearing.  It’s difficult to judge how far the Republican members of the Committee will go to try to push the nomination through, but it’s hard to imagine too many more “…shoes can drop” before Mr. Kavanaugh will be forced to withdraw.

And now Michael Avanatti is stepping into the Kavanaugh fray, saying he has evidence about Dr. Ford’s allegations and the behavior of Kavanaugh’s high school chums in the early 1980’s.  Avanatti may have found an even bigger “ambulance” to chase than Trump and a Porn Star; but he also knows how to work a story.

Also this weekend memos from former Deputy FBI Director McCabe were revealed to the New York Times.  In them, he discusses how the new Deputy Attorney General Rod Rosenstein was worried about the state of the President, and talked about “wearing a wire” when with him.  Was it a joke, or serious?  Should Rosenstein be fired or admired for his concerns?  And politically, who leaked this, and who gained an advantage from Rosenstein being “outted.”  For those who further the “Deepstate” conspiracy, this is “red meat.”  For those who think Trump is unfit, it is further evidence of his failings. Or maybe this is McCabe’s “paybacks” for being fired.  But for those who are whispering in the President’s ear to “fire them all,” it’s just what they needed.

A Universal Solution

The greatest failing of today’s American politics is the inability to get much of substance done.  The great achievement of the Obama Administration, the Affordable Care Act, was left totally vulnerable to succeeding governments, because it did not draw on a consensus.  It was solely a Democratic vote, and plan, and Republicans were left in the cold.

It’s not the Democrats fault.  Both Democrats and Republicans have become so polarized, so wedded to the extremes of their own political base, that they are unwilling and unable to work together.  When politicians talk about “working across the aisle” they do so at the peril of their own re-election.  They will be “primaried;” faced with an opponent from their own party who can “flank” them to the right (Republican) or left (Democrat.)

This division has been structurally built into our political process.  It’s been done through the re-drawing districts by computer from the state to the federal level.  In the far past (twenty years ago) districts had some rough geographic integrity, and while there has been manipulation of District boundaries for political gain since Governor Gerry did it in Massachusetts in 1812, the advent of the modern computer has taken manipulation to an extreme.

Districts are drawn statewide to maximize the power of the party in control, and minimize the party in the minority.  Regardless of the actual percentages, through boundary manipulation the majority can gain enormous power.  For example, here in Ohio in 2016, Donald Trump earned 52% of the vote, will Hillary Clinton gained 44%.

Yet out of the sixteen Congressional Districts in Ohio, twelve are Republican for 75%, and four Democrat for 25%.

This was all done in a hotel room in Columbus in 2011.  The Republican Party controlled the entire re-apportionment process, elected to all of the state-wide offices.  They used a highly developed computer program, carefully dividing the state to maximize their political clout.  Two of the results of this process were Ohio’s 4^thand 9^thDistricts.

The 4^thDistrict was careful to skirt Democrats, running from the suburban Columbus to suburban Toledo.  It is rated in the top ten Republican districts in the United States.

The 9^thDistrict was designed to “dump Democrats” into, so that their political influence would be lessened.  Two generally Democratic districts were stretched into one, pushing two incumbent Democrats into a single district.  It stretches over 100 miles long, but no more than 15 miles wide, stringing along the Lake Erie coast from Toledo to Cleveland.

The effect of this is to minimize the impact of the general election.  No matter how good or bad a Republican in the 4^thor a Democrat in the 9^th, they are very likely to get elected in those districts.  The actual contest is in the primaries.  So when a Republican runs in the 4^thDistrict primary, they are running to the most likely and motivated Republican voters, who tend to be the most conservative.  It’s no surprise then, that the Congressman from the 4^th, Jim Jordan, is one of the most conservative members of the House, leading the “Freedom Caucus.”

Marcy Kaptur, the Democrat representing the 9^th, has been in office for thirty-six years, the longest serving woman in the Congress.  And while she is not as outspoken as Jordan, she has a strong progressive voting record. She won her last election by 68% of the vote.

While it’s easy to blame the Republicans for the structural changes in our government that have created this polarization, what they did was legal, and seemed reasonable to them at the time.  They had the power, and they used it.

But what has happened due to this apportionment process, is that there is no room for “the middle” or for political compromise.  The candidates are unable to risk “crossing the aisle,” as they will be attacked from their base in the next primary. It’s hard to imagine anyone could get to the right of Jim Jordan, but by positioning himself there he guarantees his political future.  He has no political incentive to do otherwise.

Polarization is built into the structure of the process. Until that structure is changed, there’s no point in arguing for cooperation or compromise.  It is the structure of our political apportionment process that determined our current state and must be changed.

To change the world, change the process.  There are varying groups, from both sides of the aisle, who recognize the unintended consequences we are now living, and are working for change. While some on both sides are trying to “get at all,” whether it’s from the far left or far right, America will need to bring everyone along to reach a “better place.”  Everyone includes most of those who you politically disagree with; without them, nothing can be permanent.

As “the Resistance” looks to wind back the damage of the Trump Administration, it would be easy to take the position that “…they did it, so should we.” But that path will simply maintain a cycle of division that prevents real change.  The opposite of Republican division should not be Democratic division:  if it is, nothing gets done.

 

 

 

 

 

Due Process Matters

The Kavanaugh Supreme Court nomination has reached a new low.  The Committee hearings on his confirmation were a political process; not so much a “finding of information” than a sales (or hatchet) job.  And now the Ford accusation makes that process even more political.

For the purposes of this discussion, let’s assume that the timing of the Ford accusation, after the close of hearings immediately before the Committee vote, was on purpose.  It was a Democratic tactic to disrupt the “steamroller” to confirmation.  It was purely political.

Does that matter?  The fact that the Ford letter was leaked, probably by a Democratic staffer, for a political end; does it change what is required of the Committee and the full Senate?  It shouldn’t.

Bret Kavanaugh, the darling of the Republican political establishment, has been accused of committing what would have been a felony sex crime when he was seventeen years old.  Maryland does not have a statute of limitations, so in theory he could still be prosecuted for such an act.  And while there are many that would give Mr. Kavanaugh some kind of “pass,” the “boys will be boys (and drunk boys worse)” exception, it doesn’t change the possibility that Mr. Kavanaugh may now be lying to the Congress and the American people about his actions.

It deserves “due process;” a thorough investigation into the charges.  Mr. Kavanaugh should be welcoming such a search if he is telling the truth, it would serve to exonerate him.  He deserves more than just a few “old men” questioning, and then reaching a pre-arranged conclusion.  But he is silent, not asking for an investigation, and his Republican backers are clearly avoiding it.

Who else deserves “due process?”  Dr. Blasey-Ford, who is the victim in the case.  She is almost certainly a victim regardless of whether Bret Kavanaugh committed these acts, because it is most likely that the acts did occur.  The number of sexual assault victims who “make it up” is less than ten percent.  And there seems little reason for Dr. Ford to enter this maelstrom of negative attacks other than a single compelling one:  she believes she’s telling the truth.

The victim should have some presumptions too.  She should have the presumption that her story may be true, and deserves more than just a “grilling” in front of a Senate Committee.  She deserves an investigation, one that the FBI could do in relatively short order.  She deserves her “due process,” and so do the American people, regardless of the political nature of the timing of the charge.

We currently have one Supreme Court Justice who we reasonably believe sexually harassed his staff. Justice Thomas, here twenty-seven years later, has never come out of the cloud Anita Hill placed on his term in office. And there WAS an FBI investigation, even though the hearings on Ms. Hill’s charges were still cut short. Should the Republican majority ram-rod Judge Kavanaugh through without “due process,” he too will be under a cloud. While I expect he wouldn’t say an investigation is “for his own good,” it might be.

What shouldn’t happen? Mr. Kavanaugh’s good friend Ed Whelan, former Scalia Clerk and President of the Ethics and Policy Center (a conservative think-tank) put forward another suspect, a high school friend of Kavanaugh’s, with diagrams of the house that match up to Dr. Ford’s story.  Mr. Whelan is allowed to investigate and reach conclusions accusing someone, but the FBI isn’t:  that’s not “due process.”

So the maneuvering continues.  Dr. Ford’s lawyers are negotiating with the Republican leadership, and it’s less than likely that there will be a “real” investigation of what actually happened. Mr. Kavanaugh will likely be confirmed, and the Republicans will pay a heavy price at the polls in November. Perhaps this will be the “last gasp” of the “old boys club.”  “#MeToo” is strong in this nation, the “old boys” are old and losing control. Dr. Ford will become one more symbol of their unwillingness to find the truth, of their “ends” of controlling the Supreme Court,  “justifying the means.”

They are willing to do almost anything to control the Court majority:  even a charade that the whole nation will see as faked.  Sure it’s politics; it’s everything that we hate about politics.  The price for it will be heavy, at the polls and someday in the Court itself.

 

 

 

 

 

Old White Men

The Senate Judiciary Committee will meet once again on Monday to determine the fate of Bret Kavanaugh’s nomination to the Supreme Court. At least that’s what the schedule is today.   It’s an eerily familiar scene:  the brilliant jurist, literally days away from a lifetime appointment to the highest court in the land, dragged back in front of the Committee.  A woman, highly educated and successful, brought into the harsh limelight to tell a humiliating and degrading story.  And on the dais overlooking the public airing of their lives are the “old white men.”

A scene familiar for those old enough to remember 1991 and President George HW Bush’s nomination of Clarence Thomas to replace retiring  Thurgood Marshall.  Four years earlier Ted Kennedy led the successful attack on conservative ideologue Robert Bork’s nomination, keeping him off the Court.  This time, Thomas was sailing through the process:  Senators had returned to the view that a President should be able to have a nominee of his own choosing.  Though Thomas shared much of Bork’s ideology, Kennedy did not attack him in the same way – perhaps because he was African-American.

After the committee concluded their questioning, Anita Hill came forward with charges of sexual harassment against Thomas.  The committee brought Hill and Thomas back, and the Senators humiliatingly pushed Hill through the “exact words” of her harassment. Republican Senators Arlen Spector, Orrin Hatch, and Chuck Grassley were inquisitors, eliciting terms like “pubic hair on Coke cans” and “long dong silver” that entered the American political vocabulary.  Hill courageously withstood outrageous claims from the “old white men” who sat in judgment; leaving America with a vision of their attacks.  And Ted Kennedy, silenced by his own sexual history, sat in obvious discomfort.

Joe Biden, then chairman of the committee, was also clearly uncomfortable with the nature of the testimony. He cut off further witnesses and other information, abandoning Hill and  leaving Thomas damaged but able to survive the confirmation vote, 52-48.  Thomas is still on the Court.

Twenty-seven years later, Dr. Christine Blasey Ford has come forward to accuse Kavanaugh of more than just harassment.  She states that he sexually assaulted her when they were both in high school.  And, at least on the Republican side of the committee, it will seem like history revisited: the same old white men, even older.  Orrin Hatch and Chuck Grassley are still there, now in charge, and while other Republican members are younger, they are faced with a modern quandary.  If they attack Ford like Anita Hill, will they face a different backlash in this “#MeToo era” than politicians of the 1990’s? And the President, like Kennedy before, is quieted by his own history.

And unlike Anita Hill, Dr. Blasey Ford is taking steps to protect herself from an inquisition.  She has stated that she is willing to testify, but she believes that the incident should be investigated before her appearance, a standard practice using the FBI.  Reasonably, she wants the Committee to have some facts before they try to pass judgment.

The Republican Party is already in trouble for the November elections.  Should the members of the committee be seen as “old white men” attacking a victim, the result could be even greater political losses.  The “younger” Republicans like Ben Sasse and Mike Lee can’t be seen as “sitting by” while their older colleagues attack.  And the Democrats on the Committee should let the women Senators take the lead, with former prosecutors Amy Klobuchar and Kamala Harris defending.  Senior Senator Pat Leahy, also at the Anita Hill hearing, should lay low.

If the Kavanaugh nomination is stopped it will be seen as a strong Democratic victory, despite the fact that a new nominee with the same ideology will be back in front of the Committee within weeks.   If it goes through, then the Republicans will be forced to live with the political consequences, perhaps making November’s expected “blue wave” more of a “blue tsunami.”

For Republican Senate Majority Leader Mitch McConnell, it must seem a lose-lose situation.  He will determine Kavanaugh’s fate, regardless of the committee’s decision.  McConnell is known for his ability to count votes:  the Kavanaugh nomination won’t go to the floor in the Senate if he can’t win. In fact, if the votes aren’t there, Kavanaugh won’t even get to Monday’s hearing.

There is an old movie called “War Games,” about a rogue computer in charge of national defense that almost begins a nuclear war.  The computer is taught to play out every nuclear scenario out – and reaches a startling conclusion:  the only winning move is not to play.

Perhaps McConnell will decide the same.

Plans Come Together

 

“I love it when a plan comes together” – Hannibal Smith, The A Team 

The Russian Intelligence agencies weren’t much different after the fall of the Soviet Union.  Yes, the KGB was split in two to become the FSB (Foreign Security Service – counter- intelligence and internal security, sort of like an evil FBI) and the SVR (Foreign Intelligence Service – more like the CIA) but while the administration changed, the mission remained the same.  And military intelligence, the GRU continued on serving the state.  The intelligence network laid low through the Yeltsin era, but with the ascendancy of Vladimir Putin, one of the KGB’s own, they were back in full action again.

In Putin’s new era of Russian expansion, each agency searched for a way to maintain relevance, and to further his goal of rebuilding the Soviet empire. The GRU, recognizing that the armed might of Russia was far less, searched for alternative means of influencing the burgeoning democracies of the newly independent  former Soviet states. Attacking computer networks, including voting computers, became one of their specialties, as well as using false accounts and “trolls” on social media to influence neighboring populations. Their actions started in Estonia, but expanded to Ukraine, and ultimately to France, the United Kingdom, and Germany.

The SVR continued much of the KGB era operations.  This included the sleeper agents place throughout the world even before the fall of the Soviet Union, and assassination actions towards enemies both at home and abroad.  It also included a longtime Soviet program of finding ways to influence foreign leaders. The old KGB tactic of gathering “kompromat” or compromising information for blackmail, accelerated as Russia became a center for cheap money as a result of the sale of “Soviet” assets. Billions of dollars were to be made, and any and all fetishes could be fulfilled, accompanied by a hidden camera.

But it wasn’t just the old-fashioned blackmail material that made Russian intelligence influential.  There was an even more powerful influence:  money.  The billionaires around Putin maintained their role and their bankrolls by following his orders. They “freely” invested their monies throughout the world.  Whether it was loans to Deutsche Bank in Germany or the Bank of Cyprus, or real estate in Miami, New York, London, or Singapore; the tentacles of the Russian “oligarchs” spread throughout the world.  And if an influential person in a target country, say, the United States, needed funds, then the oligarchs were directed to finance them.  It was always for a profit, and always had Russian strings attached.

None of these actions were initially targeted at the United States Presidency.  Each of the prongs:  the GRU’s internet attacks, the SVR and FSB grooming of influential individuals, and the Oligarch’s financial influence; were originally designed the push the former Soviet States back into the Russian empire.

There was no original “plot” to make Donald Trump President of the United States.  He was a broke, high profile real estate marketer, fresh from the failures of his casinos in Atlantic City and multiple bankruptcies.  He needed money to get back on his feet, and US Banks weren’t lending to a clear real estate failure.  But he was a TV character, the image of success in “The Apprentice,” and the oligarchs extended the Trump Organization financing.  Soft loans from Deutsche Bank, high market purchase of Trump condos, and wildly over-valued purchases of Florida property all opened a money and influence flow.

Why would they pick Trump?  He already was outspoken on a variety of issues, and he had a national audience.  If his statements were slowly biased towards Russian interests, then perhaps it would influence US policy towards Russia.   But more importantly, Trump was a “loud mouth,” historically divisive and disruptive, Russian money and influence could amplify his national voice.

Trump was not an “only” target.  Russian money was infiltrated into US interest groups, from the National Rifle Association to the Green Party.  Mainstream candidates for office would accept “dark money” support, not necessarily even knowing its Russian origin.  The tentacles of Russian money spread into American political life.

Vladimir Putin’s goal was not to elect Donald Trump. His goal was to disrupt America’s democracy.  Who won wasn’t the primary goal, it was an attack on the legitimacy of the democratic process itself.  Russia no longer could compete as an economic or even a military power; his only alternative was to try increase his influence by reducing American influence.

So a multi-prong plan emerged from the intelligence agencies.  A brilliant mind in the Kremlin saw all of the  pieces and pulled them together into a coherent strategy:  support Donald Trump as a disruptive candidate for President, and make sure he gets support from the US interest groups already under Russian influence.  The goal was not “to win” but to sow disorder.

Backing the plan was the GRU with their new-found power in social media.  With the cooperation (unknowing?) of Facebook and Twitter and Google, and perhaps the targeting information provided by their contact at the “psycho-profiling” firm Cambridge Analytica, they were able to exacerbate the divisions already present in American political life.  The subconscious resentment of some Americans of an African-American President, the racial divisions seen in Ferguson and in the multiple shootings of unarmed black men, the drumbeat of hate for Muslims (radical Islamic Terrorists) and the inherent fear of changes from gay marriage to transsexual restrooms all could be inflamed online.

When Donald Trump decided to run for President, it may have been with subtle Russian encouragement, but when he began to have success in the primaries, the Russian intelligence network was brought into full support.  And when he won Republican nomination, to run against Putin’s hated rival Hillary Clinton, Russia was “all-in.”

It was a confluence of different Russian intelligence programs.  Years of work on different levels came together to produce a single Russian Intelligence goal – the candidacy of Donald Trump.  They saw it as the single most disruptive action they could take towards the US.  Win or lose, he “main-streamed” the fringe ideas that Russia had been pushing to divide America.

Abraham Lincoln famously said:

“You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.”

It was the Russian goal to fool as many as possible, as least for some of the time.

It took Americans to get Donald Trump elected to the United States.  From the millions of dollars worth of free television time that MSNBC’s Morning Joe gave him early in the campaign, to the 54.4 million followers Donald Trump has on Twitter, Americans bought into his candidacy.  The Russian manipulations helped, and the Russian attacks on Hillary Clinton and the Democratic Party helped even more, but it was Americans who made the Russian plan a success beyond their wildest dreams.

Whether it’s through money or “kompromat,” or choice, the Russians have an asset in the White House.  As Hannibal Smith, the renegade Colonel who led the A Team of 1980’s television fame would say as he lit up his victory cigar; “I love it when a plan comes together.”

I bet Putin smokes Cubans.

Dirty Pool

President Trump’s candidate for the United States Supreme Court spent three days as a witness in front of the Senate Judiciary Committee.  Judge Kavanaugh skillfully did the modern “dance” we now expect of a current nominee for the Court; successfully avoiding taking a stand on any issue, using the terms “long standing precedent,”  “historic decision,” and a new one (at least to me) a “double precedent” to cover for his own views.  He never let on how he would decide as a Justice on the Court, following the “double precedent” and more of recent appointees.

And, with only a scratch or two, he made it through.  Maybe Senator Harris tripped him up a bit with the question about his private conversations on Presidential privilege, and Senator Hirono revealed his views about Native Americans; but they were only pinpricks. Democrats made a valiant stand, giving stirring speeches about Republicans hiding information, and violating Senate rules by releasing some of it deemed confidential by the majority. Whether the Democrats really thought they could de-rail the nomination, or whether it was more of a “show” for the base, we didn’t know.   Kavanaugh was on his way to a lifetime appointment by a narrow confirmation vote, perhaps fifty-four in favor to forty-six opposed.

Then came “the letter.” Senator Feinstein had a letter accusing Kavanaugh of sexual assault as a teenager; a drunken attack on a girl in a bedroom.  The accuser asked that the letter be kept confidential, but wanted the Senator to know. Feinstein kept it secret for months, not even letting her Democratic colleagues see it.  But, after the hearings, the word somehow leaked out, and Democrats demanded to see.  Soon there was a public “whiff” of scandal, the reporters went to work, and the accuser realized that she could come forward herself, or be “outted” by the ravenous media.  She chose to control her destiny, and entered the public spotlight.

Dr. Christine Blasey Ford, a professor of Psychology at Palo Alto University, has now publicly told her story.  She has offered to testify to the Senate about what happened, and has even “vetted” her own report, taking a lie detector test and offering the notes of her therapist from 2012.

It won’t take long for the smear campaign to begin.  We will soon hear every negative aspect of Dr. Ford’s life; we will know every mistake, misplaced comma in her doctoral thesis, and donation to a political cause. She stands in the shoes of Anita Hill, the law professor that accused then Court nominee Clarence Thomas of sexual harassment.  In 1991 the Democrats, led by then Senator Joe Biden, ultimately abandoned her testimony and proceeded to confirm Thomas.  Now twenty-seven years later in the “#MeToo” era, both they and the majority Republicans are faced with a similar problem.

The Republicans face a “lose-lose” situation.  Mitch McConnell seems determined to proceed with the vote, knowing that a Kavanaugh confirmation would create the Federalist Society’s “Dream Court.”  But the process, particularly if there are no hearings, or if the smear gets too ugly, will turn off the suburban white women vote that the Republican Party candidates desperately need to survive the upcoming midterm elections.  Win the Court,  but lose the House and Senate as well, may be the ultimate result.

But to allow hearings, and more, to withdraw or lose the Kavanaugh nomination, means to lose the Court, perhaps forever.  Regardless of the nomination outcome, the Republicans are now looking at possibly losing the Senate, and with it their opportunity to control the appointment process. The traditional Republican base, and more particularly the traditional Republican financers, are more than willing to give up the legislature today for decades of conservative majority on the Court.

Republicans claim the Democrats are playing “dirty pool.”  They have a point, as Democrats, at least Senator Feinstein, held the letter through the entire vetting process without bringing it out.  While Feinstein says she was respecting Dr. Ford’s privacy, in the end it does look like a last minute ambush attack.

And Democrats will soon be claiming “dirty pool” as well, when the smear campaign against Dr. Ford begins.  The Republicans have already found sixty-five women who knew Kavanaugh in high school and vouch for his “sterling” reputation.  Hard to imagine how they remember so well back from the early 1980’s; even harder to imagine that the Republicans found them over the weekend. They must have known about the Feinstein letter, and prepped a response.

So we are now at the ultimate battle for the control of the Supreme Court.  Unlike the historic debates of the Senate that decided the great issues of their time, this one won’t end with flowery speeches and careful compromises.  This will be determined by all the pressures of modern politics, from dark money donors to demanding interest groups.  It’s a “street fight” with no rules and we can expect even more “dirty pool” to come.

The Room Where It Happens

No one really knows how the game is played
The art of the trade
How the sausage gets made
We just assume that it happens
But no one else is in
The room where it happens

Lyrics from the song – The Room Where It Happens – from Hamilton, once again creating the themes for our era

  

Paul Manafort, Manager of the Trump Campaign during a critical time, yesterday pled guilty to a series of charges under the following headings:

• Conspiracy against the US
  • Money Laundering
  • Tax fraud
  • Failing to file Foreign Bank Account Reports
  • Failing to file as a Foreign Agent
  • Lying to the Department of Justice
• Conspiracy to Obstruct Justice (Witness tampering.)

He reached an agreement with the Special Counsel’s office, avoiding an upcoming trial in Washington DC.  This happened after he was found guilty last month on eight federal charges in Virginia, putting him in jail for fifteen years, and faced a possible thirty-seven year sentence in the second trial. All of this would add up to a life sentence for a sixty-nine year old man.

The agreement: Manafort would fully cooperate with the Special Counsel, waiving the right to counsel during questioning and answer all questions truthfully, testifying when and where required.  If Manafort fulfills the agreement, then the Special Counsel will ask the Court for reduced sentencing on both the Virginia and District of Columbia courts.  If not – it’s the rest of his life in prison.

None of the crimes he has pled guilty to are directly connected to the Trump campaign or the 2016 elections.  So when White House Press Secretary Sarah Sanders states that the guilty pleas have nothing to do with the President or his campaign, she’s right.  But what the plea agreement does do is give the Special Counsel full access to what Manafort did and what Trump knew, during the campaign.

This agreement puts Robert Mueller’s team “…in the room where it happens” in several pivotal events in the Trump Campaign.  The best known is the June 16, 2016 meeting in Trump Tower, where Manafort, Donald Trump Jr, and Jared Kushner met with Natalia Veselnitskaya and three other Russians to talk about getting “dirt” on Hillary Clinton.  But it also gives first person access to the platform decision to drop support for arming Ukraine, and insight into the relationship between the campaign and Cambridge Analytica, the US backed, UK based, “psychographic microtargeting” firm.

Manafort was  “…in the room where it happens” from March when he joined as head of the “delegate team” for the Republican Convention, through June when he was made Chairman of the Campaign, to his resignation in August.  And recent evidence from the Virginia trial shows that he continued to have influence after leaving.  Not only was Manafort’s key aide, Rick Gates, the Deputy Campaign and Deputy Inaugural Committee Chairman, but Manafort himself was still influential, even trying to barter appointments in exchange for bank loans.

He was part of the critical developments in the Trump foreign policy team, putting him into the mix with then-Senator Jeff Sessions, Carter Page and George Papadopoulos; all of whom have been implicated with Russian connections.  And Manafort himself had major Russian connections, including owing $10 million to Putin ally Oleg Deripaska.  Manafort offered to give him private briefings during the campaign as partial repayment of the loan.

Paul Manafort has now, as a former US Attorney stated, “…switched to Team United States.”  And, should the President decide to Pardon him, Manafort would still have to testify. A Pardon would remove his Fifth Amendment right against self-incrimination (he can’t incriminate himself for a crime he already has been pardoned for) and would put him in front of a Grand Jury under penalty of perjury. And, of course, a Presidential Pardon would certainly become another block in Mueller’s building obstruction of justice case against the President.

The Agreement has forced the Trump legal team to find new Constitutional interpretations. Alan Dershowitz, Harvard Professor and unofficial Trump advisor, yesterday raised the novel theory that a President can only be impeached for actions that occur while President.  This is an extension of the political cover that Trump has used since the Access Hollywood tape: that voters in the election determined and exonerated him for actions before the election.  Once they have voted, the issue is “dead.”

The impeachment clause of the Constitution states:

 The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

A plain reading of the clause shows no time limits, such as the words “while in office.”  But Professor Dershowitz has spent his career trying to find differing interpretations of the law to support his clients, so it should be no surprise that he is advancing this one.

And Dershowitz, along with the President’s attorney Rudy Giuliani, has used the expression, “…people with plea agreements ‘sing,’ but they also ‘compose.’”  It suggests that Manafort will make up any story in order to reduce his sentence, and attempts to damage his credibility as a potential witness.  Former US prosecutors counter that, like Rick Gates’ testimony in the first Manafort trial, any statements Manafort would make in trial would be backed up with mountains of other evidence.  And of course, should Manafort lie to the Special Counsel, he faces the enormous penalty of life in prison.

While the Special Counsel will find the truth through whatever legal means necessary, the cooperation of Paul Manafort will certainly provide more information and insight into what the Trump Campaign was doing, and perhaps help answer the question:  “what did the President know and when did he know it.”

Manafort was, “…in the room where it happened.”

It’s Time

I am tired.  Tired of the betrayal of American values that is the Trump Administration.  Tired of being told that “elections have consequences.”  Tired of pretending that the Trump election was legitimate, and that we should honor the results.

There is a “rumor” floating now, that Republicans will acquiesce in a Trump impeachment or resignation, “…as soon as Kavanaugh is confirmed, the midterms are over, and another tax cut is passed.”  They will get their agenda complete, then throw Trump to the wolves.  What has become of the “honor” of the Republican Party?

They made a “deal with the Devil” in April of 2016, when the leaders, particularly Mitch McConnell and Paul Ryan, determined to allow the Trump candidacy to continue.  They decided that it was more important to keep the “Trump voter” on the Republican side, then to worry about an actual Trump Presidency.  They knew, then, that he was unfit to be the President of the United States.  But they, like everyone else, presumed he would lose, and in losing, give the benefit of his voters to elect a Republican Congress.

They continued the deal, even after the Access Hollywood tape.  They fought the Obama Administration’s attempts to warn the nation of Russian interference.  They wanted their majority in Congress, and they were willing to do anything to get it.  They made sure that there was enough pressure on James Comey that he felt it necessary to interfere in the final days of the campaign.  What they didn’t plan on, at least I hope, is the effectiveness of the Russian influence on the election.  They didn’t plan on the incredibly dangerous alliance between the “psycho-profiling” of Cambridge Analytica, the divisiveness of the Russian social media campaign, and the still untold story of Russian hacking into the election system.

We don’t know that Trump really “won,” we weren’t allowed to recount the votes in Detroit, and we aren’t allowed to consider the possibility that other states were hacked.  It has “been determined” that it didn’t happen, yet drip-by-drip we hear of more digital incursions into voting systems.  It was 77,744 votes out of 130,000,000 that determined the outcome – and we just don’t know.

We do know that there is growing evidence of the influence of Russian intelligence on the Trump Campaign. We do know that the President has “bowed down” to Putin, and has espoused a foreign policy that could have been written in the Kremlin.  We saw that policy again yesterday, when National Security Advisor John Bolton attacked the World Court, denigrating their authority.   We know that the future of Syria is being decided without our involvement, even as our troops remain at risk.  And we know that the Trump Presidency has done everything it can to weaken the Western Alliance.  We suspect that we have a President who is somehow compromised (kompromat) by the Russians.

Mark Hanna, the political boss of Republican Ohio in the 1890’s and backer of President William McKinley made his “deal” by putting Teddy Roosevelt on the ticket as Vice President in 1900.  WhenMcKinley was assassinated by anarchist Leon Czolgosz in September of 1901, Roosevelt ascended to the Presidency.  Hanna is famously quoted as saying, “Now look!! That damned cowboy is President of the United States.”

Perhaps Ryan and McConnell said something similar. And perhaps they were hoping that, like Teddy Roosevelt, Donald Trump would surprise them and become a strong President.  Or perhaps they thought they could surround him with “adults in the room” who would lift up his Presidency, or at least protect the United States from the excesses of his actions.  It didn’t happen.

They were the leaders of their party, and they didn’t have the RIGHT to risk our nation on such an unsound bargain.  They were supposed to be PATRIOTS and instead chose this dangerous path to get the partisan benefits.  And WE are the ones now paying the price for their bargain.  But they are not.

I am tired of pretending that it’s OK. It’s not, and out nation is suffering. Paul Ryan, the “Hamlet-like” figure in this drama, will leave the action and return to Janesville, Wisconsin (probably to increase his fortune through lobbying.)  McConnell will continue in the Senate, though it wouldn’t surprise me, should the Democrats gain a Senate majority, if he too left to increase his bank accounts.  They will “dip out” and take their money with them.  And we Americans are stuck with the mess.

They, and the rest of the Republican Party, including the “good” members who have acquiesced in their leadership decisions, are to blame (“Hear-Hear” for John Kasich!!)  They should stop lining their pockets with tax cuts.  They should stop their long-term plan to distort America by turning the Supreme Court over to the Federalist Society.  They should recognize their fault, and help clean up the mess. And if they don’t, then the Republican Party needs to follow the historic path into oblivion of the Know-Nothings and the Whigs.   It’s time.

 

How Impeachment

Impeachment is the process of Congress attempting to remove members of the Judiciary or Executive Branches. It has two-parts,  the bringing of charges; the actual “impeachment” by the House of Representatives and the “trial” in the Senate. Impeachment is similar to an indictment in the court system; laying out the reasons why the individual should be removed from office, “the charges.”

The Senate is the deciding force in the process.  They take the “charges” from the House, and they hold a trial to determine the outcome. In the case of Presidential trials, the whole Senate sits as the “jury,” hearing all of the evidence.  The House “managers” are  the Prosecutors, and the President’s lawyers the defense.  The Chief Justice of the Supreme Court serves as the “judge.”  In “lesser” impeachments, such as a Supreme Court Justice, a Senator serves as “the judge,” and a committee may hear the evidence and report back to the Senate.

It requires a majority vote of the House to impeach, and two-thirds vote of the Senate to convict. Removal from office and banning from future office are the only punishments the Senate may exact.

Members of the Executive Branch can be impeached for “…treason, bribery, or other high crimes and misdemeanors.”  An additional “good behavior” factor is added for the removal of judges.  The impeachment process has been used a great deal more than is commonly known:  nineteen trials have been held with seven guilty verdicts, nine acquittals or dismissals, and three resignations (ending the process.)

In fact, within the last decade two Federal Judges have been impeached and removed from office, Samuel Kent for sexual assault and obstruction who resigned before the trial was completed, and Thomas Porteous, convicted of accepting bribes and perjury, removed from office and banned from future offices.

Three Presidents have been threatened with impeachment. The first was Andrew Johnson, who became President after the death of Abraham Lincoln.  Johnson’s impeachment was primarily political in nature; Johnson was a Unionist added to the Republican ticket in 1864 to help re-elect Lincoln. The radical Republicans controlling the Congress found him to be a huge impediment to their plan of Reconstruction, and ultimately tried to control his administration by altering Presidential power to fire cabinet members.

The Tenure of Office Act extended Senate power to advise and consent for Presidential appointments to removing those appointments as well.  Johnson vetoed the Act, but the Congress overrode his action, and it became law.  Johnson refused to accept it as Constitutional, and removed Secretary of War Edwin Stanton from office, who barricaded himself in the War Department. Johnson countered by appointing war hero Ulysses Grant as Secretary, and the House voted to impeach on that and associated charges.

The trial of Johnson in the Senate was the “hottest ticket” of the time.  And while the Radical Republicans made up two-thirds of the Senate and seemed to have a pre-ordained conclusion, a single Senator, Edmund Ross of Kansas, determined that while Johnson was an incompetent President, his actions did not rise to the Constitutional standards, and by that one vote Johnson remained in office.

Richard Nixon avoided impeachment by resigning in the face of a nearly united Congress threatening removal.  Nixon’s impeachment charges included obstruction of justice, abuse of power, and contempt of Congress.  A bipartisan group of Senators advised him that the Senate would in fact convict, allowing Nixon to resign before the full House voted on the charges.

Bill Clinton was impeached as a result of the multi-year, millions of dollars Whitewater Investigation. While the originations of the probe were questionable land deals in Arkansas, Clinton himself was ensnared due to his sexual affair with a White House intern, Monica Lewinsky.  Clinton was charged with committing perjury in a deposition regarding his relationship with Lewinsky and others, and with a series of actions to obstruct justice.  The impeachment resolution passed on a near party-line vote, and went to trial in the Senate.  The Senate, after a month long trial, also voted near party-line, with the perjury count failing 55-45 and the obstruction count failing  50-50 (67 votes required to convict.)

The current crisis with President Trump involves some of the same issues as Nixon and Clinton. Obstruction of justice, hindering investigations, and encouraging others to hinder, all seem to be on the table. This probably would not be enough to convict (see Clinton) but a Mueller report that includes conspiracy with a foreign power to influence the election might well change the balance.  It would be at that point that influential Republican Senators who have supported the President like Lyndsey Graham and John Cornyn, may well have the same “talk” that the Senate had with Nixon.  A Trump resignation would avoid the turmoil of impeachment and conviction.

This is not a Constitutional crisis.  The Constitution provides a clear path to resolving the issue, either through Congressional action or popular elections.  It would not become a Constitutional crisis until the problems cannot be resolved by Constitutional means, for example,  should a five-four Supreme Court inappropriately intervene.  Then, with the process failing to resolve the issue, the real crisis in our Constitution would begin.

The President Is Not the United States

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.– US Constitution, Article III, § 3

“unelected deep state operatives” are a “threat to democracy itself.”  “(the person who wrote the op-ed) may not be a Republican, it may not be a conservative, it may be a deep state person who has been there for a long time” – President Donald Trump – 9/6/18

 “Number one, the Times should never have done that, because really what they’ve done is virtually, you know, it’s treason, you could call it a lot of things.” – President Donald Trump – 9/6/18

“The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) is not my enemy, it is the enemy of the American people. SICK!” Twitter – President Donald Trump – 2/17/17

 

Donald Trump, among his many other flaws, is confused.  He has conflated the United States, our nation, with himself.  While the President of the United States may be the head of state, representing our nation both at home and overseas, the holder of that office is NOT the United States.  Trump needs to figure that out.

In the past year or so, he has accused the media of treason and as being an enemy of the American people. He has also accused the “anonymous” (or ‘annimus’) author of this week’s cry for help in the New York Times of treason, and has asked the Department of Justice to investigate and find out who the writer was.

Criticizing the President is not a crime, at least since the Sedition Act expired in 1801. (A brief history lesson, President John Adams and the Federalist Party of Hamilton’s fame, wrote a series of laws restricting immigration and criticism.  One, in 1798, was called the Sedition Act, making criticizing the Administration a crime punishable by imprisonment.  Jefferson’s Democratic-Republican Party made opposition to these laws a prime issue in their winning election of 1800, and most, including the Sedition Act, were allowed to expire at the beginning of the Jefferson Administration.)  And even in the brief three years when it was a crime, it wasn’t treason.   John Adams knew the difference between infuriating criticism that he wanted to end and actual treason against the United States.

In fact, despite the wishes of most “Resistance” fans, even if Trump was a direct agent of Russia who achieved the Presidency with knowing aid of Russian intelligence, he probably still hasn’t committed treason.  Russia has not been defined as an “enemy,” and while trying to subvert our electoral process may be considered a “bad” act, it probably doesn’t rise to the legal definition of an “act of war.”  Treason is an ultimate crime, one of the few defined in the Constitution itself; it probably does not fit even the worst imagined extremes of the Trump Campaign.

This doesn’t mean that in the most extreme case, the Trump Campaign and the President himself haven’t committed serious legal offenses.  Violation of Federal Election Laws, conspiracy to commit fraud on the United States, conspiracy of theft in the Clinton emails, and acting as an unregistered agent of foreign nations are just a few of the possible charges.  These possible acts don’t meet the Constitutional definition of treason, but do definitely reach the definition of “high crimes and misdemeanors” as written in the impeachment clause.

“Treason” and “Enemy of the People” are phrases used to fire up crowds at campaign style rallies, but they shouldn’t apply to what’s going on today.  These are dangerous phrases:  Americans would “take up arms” against treason, they would try to eliminate “enemies of the people.”  These terms are incitements to violence, and in an era where there are weapons of war (1.5 million assault weapons sold each year in US) stored throughout the nation, and an expanding division in race and ideology, they are “flame to gasoline” dangerous.  It feeds into an American “dream” of the Minuteman (common man) standing on the green at Lexington, fighting against tyranny.  This “treason” needs to be “put down” and if the Justice Department, or the military, won’t do it, well, maybe we will.  There’s a reason the American Eagle is on the symbol of the National Rifle Association.

But the President does have one thing right, though not in the way he means it.  There is a “threat to democracy” by the “steadystate” theory put forth in the New York Times opinion article.  That the un-elected staffers of the executive branch are trying to steady the government from the whims of an out of control President has little to do with democracy.  Our system has Constitutional alternatives for this situation; that the “steadystaters” are gaining the tax cuts or regulatory reform they want is far outweighed by the needs of protecting  our democracy by using the system.  Subverting it by an “administrative coup” does our nation no good.

America needs to “right the ship.”  It will take some time, and, unfortunately, during that time more damage will be done. But the Constitution charts a course to fix this, and going outside of its structure threatens permanent damage to our democracy.  It starts in November:  as former President Obama said once again yesterday:  “don’t boo – vote!”

 

 

 

 

 

 

 

 

The Beat Goes On

(a sixth graders “band” with a chord organ playing Sonny – we needed a Cher!)

I spent much of yesterday watching the Kavanaugh hearings.  The Judge has proven to be adept at avoiding the landmines in confirmation:  he never says what he believes, nor what he would do, he only quotes what the precedents are now.  When given the opportunity to discuss what his own precedents might be on the high court, he refuses to give an inch.  The only insight we have is his past, and that seems pretty clear.

Yesterday also was the less than tremendous fallout from the New York Times “cry for help” message from inside the Trump Administration.  While the President was threatening the expected lie detector tests and purges; the reaction from the one body that could actually do anything about this, Congress, was almost nil.

But as we all again are distracted, on the border the Department of Homeland Security continues their draconian efforts to stop “brown people” from entering the country.  After the epic disaster of the “child separation” program, they are quietly moving to a program of building internment camps and holding migrants indefinitely.

The “child separation” disaster was triggered by a series of badly considered decisions. The first: that those crossing the border with children should be held in custody for the misdemeanor crime of the actual crossing until claims for asylum were adjudicated.  They immediately ran afoul of the “Flores Settlement,” a legal agreement that controlled what happened to minor children at the border.  The Settlement required that ICE release children within twenty days, forcing the agency to turn them over to the Department of Health and Human Services presumably to go into foster care.  The kids were shipped all over the country, and many were left behind when the parents were finally judged and returned to their home countries.  More than 500 are held today, still separated from their parents (Washington Post.)

In the past, the parents were placed on probation to await their legally guaranteed hearings into claims for asylum.  As the parents were free from custody, the children were able to stay with them and not a problem for the ill suited ICE, or the highly paid contractors they employed. Since those parents were not held, the children weren’t an issue.

At the height of the crisis, the focus was rightly on what happened to the children.  But even at that time, it was announced that billions of dollars were to be spent building detention centers to hold whole families. Much of this money was going to companies that were already used to feeding at the government trough, such as defense giant General Dynamics.  Sites were being developed, including one perilously close to an historic internment camp from World War II (those who do not learn from history are doomed to repeat it.)

But the outrage over the children put the government on hold.  Now, when “only” five hundred children remain in custody, and the hyperactive focus of American life has moved onto other issues, ICE has issued a “new” policy.  There will be no more child separation.  Whole families will now be placed in “detention centers” and held until their cases are settled.  The US is back in the internment camp business.

The government argues that by keeping the children with their parents, the Federal courts won’t have a problem.  The immigrant advocates counter that children are still being held in custody even with their parents, therefore keeping innocents in custody without charge.  Certainly the Federal Court, currently the District Court in San Diego, will have its say.

The issue really is the relentless determination of the Trump Administration to incarcerate those who cross the border.  In the past those folks have been set free while awaiting adjudication, free to live and care for their children, and free to work and pay their own way.  Now they will become a financial burden on the US, and the fate of their children will rest again with the courts.

The Trump Administration has determined that internment camps will serve as a deterrent to prevent further migrants from Central America.  They are ignoring the facts, that conditions are so bad in some Central American countries that even the possibility of internment is better than the risks of staying home.  If tearing children away from their mothers didn’t do it, incarceration certainly won’t. But the Stephen Miller led policy continues to try to make “America White Again.”   And the beat goes on.

 

 

 

 

 

 

 

Call the Fire Department

There was a joke in the old Soviet Union under Premier Nikita Khrushchev:

“A man was running down the corridor of the Kremlin, shouting ‘Khrushchev is a fool, Khrushchev is a fool!!’  He was captured tried and sentenced to six months for insulting the Premier; and ten years for revealing a state secret.”

 On the evening of September 5^th, Trump Tweeted:

Does the so-called “Senior Administration Official” really exist, or is it just the Failing New York Times with another phony source?  If the GUTLESS anonymous person does indeed exist, the Times must, for National Security purposes, turn him/her over to government at once.

 It’s not particularly funny. An unnamed senior member of the White House Staff feels the President himself is a threat to the nation, and responded by publishing an anonymous article in the New York Times.  The article outlined a White House where the staff is trying to protect the nation from the President’s erratic and dangerous behavior.  They are doing so by ignoring the President’s directives, and re-directing his actions. In part the article states:

“(But) we believe our first duty is to this country, and the president continues to act in a manner that is detrimental to the health of our republic.  That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.”

It all sounds noble; standing in the line against an amoral man, with responsibilities far over his head, with impulses that are anti-trade and anti-democratic.  But these individuals have already made a decision that is detrimental to our nation.  They have abandoned all of the Constitutional means of controlling an “out of control” President, and instead determined that THEY are the only ones to save the nation: the very definition of hubris.

Michael Steele, former Chairman of the Republican Party, said something that made a lot of sense yesterday:  “…if your house is on fire, call the fire department.” These anonymous “resistors” are trying to control the fire themselves, and it clearly isn’t working.  Maybe this anonymous plea is a cry for help, but like calling the fire department and not telling them where the fire is; it’s not very useful.

There has been an ongoing debate in the government since the day Trump was elected.  Do you stay on with the government, and try to “protect” the nation, or do you quit.  This debate has been titled “the adults in the room,” and we have taken some solace in the fact that Secretary Mattis, General Kelly and Director Coats are there. Maybe one of them wrote this piece, though I highly doubt it.  But if it is one of these leaders, they need to do more than just make an anonymous call for help.

I’m not particularly interested in “outing” the source, but I am deeply interested in those in the White House who truly feel this way.  They need to do more to precipitate action.  If our nation is at risk, as they clearly think, and all of the circumstantial evidence supports, then it is up to the “adults in the room” to take the ultimate risk and speak out, publicly, for our nation.

Bob Woodward’s new book will provide even more evidence of the “chaos Presidency.”  Woodward’s impeccable research style, backing most quotes with actual tapes of the conversations, provides a foundation for the New York Times article claims.  So what is the next step, who is the “fire department?”

There has been a great deal of conversation about the 25^th Amendment, that provides that a President “unable” to perform his duties, can be temporarily replaced by the Vice President.  It takes the Vice President and a majority of the cabinet to replace him, but this would only provide a thirty-day respite.

The Constitution provides for several layers of agreement for government action.  The lowest is a majority of both Houses of Congress, the standard for passing a law.  The highest is for a change in the Constitution itself, with two-thirds of both Houses plus three-fourths of the states needing to be in agreement.

The standard for the 25^thAmendment is that two-thirds of both the House and Senate must agree to permanently replace the President with the Vice President.  This is higher than the standard for impeachment and removal; a simple majority of the House and two-thirds of the Senate.

So if the White House is on fire, the fire department is the House of Representatives.  The anonymous “protectors” of the United States need to take their plea to the House, even though it is the most Trump-supportive part of the government.  They need to make their case to them, and to the public whose pressure will impact them. It’s sixty days before the entire House will be up for election, there is no better time to gain public influence.  If they are going to “…call the fire department;” it’s now.

A Unitary Executive

“The Executive power shall be vested in a President of the United States of America…”  – US Constitution, Article II, §1

“The President of the United States shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices…” – US Constitution, Article II, §2

 

The Constitution of the United States was written in 1787, in a long hot summer in Philadelphia. The Founding Fathers were trying to solve the problem of governing the thirteen states, founded in rebellion against a single authority, the King of England.  They were extremely wary of a single executive, so much so, that the original founding document, the Articles of Confederation, vested what executive authority it claimed into committees, rather than a single individual.

For that and other reasons, governing under the Articles was virtually impossible, so, in secret, they met in Philadelphia to try again.  The same fears of a too powerful executive were represented; and even though George Washington was their model for a benevolent President, they were well aware that he would not be the only one to hold the job.

To quote Nebraska’s Senator Ben Sasse, the “School House Rock” version of American Government has the Congress passing laws, the President enforcing the laws Congress has passed, and the Supreme Court determining the Constitutionality of the laws and actions of both.  This simple version is what WE all learned in school, and it is what the Founding Fathers envisioned.

It hasn’t been that way for a long time.  The complexity of governing a nation the geographic size, population, and diversity of the United States has led the executive branch to gain a great deal of “operational” power.  The expansion came particularly with the Civil War, with President Lincoln often acting “extra-Constitutionally” in order to preserve the Union.  He used his authority as Commander-in-Chief to wage war, and do all those other things, like suspending the writ of habeas corpus, installing military governments in the South, and instituting a national draft; expanding Presidential power well beyond what the writers of Philadelphia conceived.

Our Nation then has adapted to the needs of history.  The Founding Fathers saw this adapting process right from the beginning of their writings, setting as the first goal for the Constitution to “…form a more perfect union.” And while the Preamble setting out those goals are not considered “law,” they are a clear insight into the writers’ minds.

So we have continued to adapt.  One of the major adaptations was after the national crisis of Watergate, when Richard Nixon as President, tried to use the Departments of the executive branch to cover-up his own criminal actions.  After that was finally resolved in 1974 by the only Presidential resignation in history, internal rules were established in the executive branch creating barriers between the political White House and the law enforcement branches.  The Department of Justice, while still a part of the Executive Branch, was given more independence to protect it from Presidential interference.

The backlash to this started early, with a trend in legal thought that called for adherence to the “original intent” of the Founding Fathers.  By 1982 the Federalist Society was formed throughout the law schools in the United States.  One of the tenets of this group, was that as the Constitution was written, the President is the absolute authority in the Executive Branch.  The development of independence either through internal rules such as with the Justice Department, or through the establishment of even more detached agencies, like the Consumer Finance Protection Bureau; denies their “clear reading” of the Article II, §1.  The President cannot “grant” independence, he is ultimately fully in charge.

This may all sound like legalistic trivia.  But its application to the current crisis in the Trump Administration is quite serious.  According to the theory, Donald Trump is effectively investigating himself by the Mueller probe.  If the logic is valid, then of course he could end the investigation, fire the investigators, and conceal the investigatory results.  There are “his.”

The “original intent” theorists point to the impeachment process of Congress, Article 1, §2 and 3,as the “check” on Presidential misdeeds. In addition they point to the legislative supremacy of the Congress who can grant and restrain Presidential powers. This of course, requires that Congress could act in a decisive manner, something that seems unlikely in our current crisis.

So, as Brett Kavanaugh, Judge of the United States Federal Appellate Court for the District of Columbia, testifies in the next few days to the nation, we must recognize that this is his ideology.  He clearly is a “good man;” if the only test was character then he seems to be a stellar example.  He also is a “bright man;” his intelligence and legal acumen is unquestioned.  What is in question is the impact, intended or unintended, that this “good man” may have as the deciding vote on the Supreme Court. It can be guaranteed that he will not “change his spots” when reaching the highest Court, he has been a man of clear ideology from his earliest legal days.

So it is not really about Kavanaugh:  this Supreme Court pick is about ideology.  He is a “young man” at fifty-three, we can expect his impact on the Court to last many decades.  With this decision, we are deciding the “arc of history” for  the next half-century.

 

 

 

 

 

 

What We’ve Lost

In the early 1990’s I was involved in a ugly and bitter dispute in my little corner of the world; Pataskala, Ohio.  It involved the school coaches, a lawyer who had a gripe against them, and the school board. In the midst of this, I got some advice from a friend.

This friend was an “old school” coach.  While he hadn’t been a high school coach for all that long, he had been coaching kids for thirty years (that was “old” for me back then.)   He was a “bear of a man,” a coach who cared about kids, and who had a lot of the best values of his time.

I was struggling to understand how the dispute had gotten so ugly:  lawsuits threatened, public claims of corruption.  I didn’t get it:  we disagreed; but instead of arguing with the means, but agreeing on the ends that all sides wanted to help kids, it was a “newer” way to disagree.  It was “agree with me or you are a bad person who needs to be destroyed.”

My old coach friend told me a story about his union (his day job.)  He said in the union meetings there would be incredibly loud and intense arguments, both sides trying to get their point across to the membership. The members would vote, a decision made, and the meeting would end.  Then all sides would head out to a bar and drink beer.

“This is the way men argue,” the old coach would say, “Argue until it was done, then shake hands and go drink beer.”  “Women,” he said “would argue and then hold a grudge forever.  They would plot and scheme to ‘get back’ at the other side. No hand shake, no beer, just fighting forever.”  My friend would then make the ultimate insult to the other side, “…they fight like women, not men.”

This was far before the “Me Too” era; but even then I recognized that this was a “sexist” way of viewing the world.  I knew women who fought just as hard as men, and shook hands and drank just as much beer as well.  But, with the gender identities taken out, my friend was making a greater point.  Why can’t we recognize that we can fight and argue about the means but still agree on the ends?

President Obama, in his eulogy to John McCain made a similar point.  He recognized that there were many areas where he and McCain disagreed quite publicly.  But President Obama knew that at the end of the day, they were both on the “same team.” They differed widely on the means to achieve it, but they both believed in making the United States a better place. I’m betting the quiet drinks they had at the White House afterwards weren’t beers, but Scotch still makes the point.

Perhaps the era of being “on the same team” has passed.  We are now in a time when anyone we disagree with must be “locked up,” or completely destroyed.  Our “Reality TV” version of politics doesn’t allow for respect, or fairness, or a beer at the end of the day.

We are seeing it today with the total disrespect of the Trump Administration towards the Democrats in Congress.  Last night, the White House dumped 42,000 documents about their Supreme Court Appointee Brett Kavanaugh on the Judiciary Committee.  The hearings begin today; it’s impossible that Democrats could review those documents, but the Republicans don’t care.  Instead the hearings will roll on; Chairman Grassley and the Republicans will get their nominee on the Court, “by hook or crook.”

And there is little Democrats can do.

Kavanaugh in another time would have been vetted and questioned, and probably approved by wide margin of US Senators.  While Democrats (and me) certainly disagree with his views, he is the “…model of a modern Supreme Court Justice.”  If he didn’t represent the pivotal deciding vote, he would be a “walk-through” like Justice Gorsuch was.

But he is that critical vote.  Upon this appointment may stand the fate of the civil rights reforms of the past forty years. Kavanaugh’s writings on the Court of Appeals in cases relating to Roe v Wade are more than scary.  So it’s going to be an ugly debate, and there will be recriminations on all sides, towards  “enemy” and “friend” both.  However this turns out (and it’s difficult to see any other outcome besides Kavanaugh’s approval) there will be no shared beer, or Scotch, after it’s over.  It’s another sign of our times, and what we’ve lost.

Better Ten Go Free

“It is better that ten guilty persons escape than that one innocent suffer”

– William Blackstone, English Jurist, 1769

The government of the United States is taking its next step in the “cleansing” of America.  The newest twist:  revoking the citizenship status of some born along the Texas/Mexico border.  These are “natural born” American citizens, having citizenship from birth.  They were born in the Rio Grande Valley; their births attended by a mid-wife rather than a doctor or at a hospital.  And now, decades later, the US State Department is refusing to accept their birth certificates as proof of citizenship, denying them passports, and the Immigration service is going so far as detaining and trying to deport them.

The problem:  there were some mid-wives who lied about exactly which side of the border the child was born on.  Not every child delivered was born in Mexico, but not every one was born on the US side either.  This is not a new issue:  these “births” are now in their thirties; the concern has been around for a while.

So, these thirty-some year olds, whose sole possible crime was to have been born on the wrong side of an artificial geographic line, are now being forced to prove the location of their birth.  Their birth certificates won’t work:  can they get a utility bill from their mother’s home, or some other external paperwork that shows their birth residence was on the right side of the line?  And, of course, their mothers were not wealthy: they were using mid-wives rather than hospitals, and, given the present Administration, they were all Hispanic. Here’s a challenge: prove the residence of your birth, thirty years later.  Go find the utility bills from the 1980’s, or the rental bills since these mothers weren’t likely to own their homes:  Good Luck.

It then becomes a “guilty until proven innocent” issue, with some of these Americans held in detention, and forced to search unavailable records.  And many of them don’t know for sure whether they were born a US citizen or Mexican. The Immigration service (good old ICE) has even gone so far as to deny some of them access to the regular Federal Court system, instead putting them into the Homeland Security run Immigration Courts.

This isn’t the first time the US government has tried to do this; it’s not just the Trump Administration.  But unlike earlier efforts, when officials quickly realized the inequity of their actions and stopped, the Trump “ICE Troopers” are moving on, sweeping up the innocent with the guilty.  The “guilty” here are guilty of being born in the wrong place; the “fraud” they have committed is one that they don’t even know they’ve done.  And the innocent aren’t necessarily sure either.

Clearly the validity of the birth certificate is a failure of the Texas state issuing authority.  They didn’t do their job thirty-some years ago.  The current enforcement actions have a better than even chance of denying Americans their American citizenship.  And unlike the rights we expect for anyone facing court action, these Americans are being found guilty, then forced to prove their own innocence.

We are a nation of laws and beliefs.  We believe that to be guilty, one must have the intent to commit an act. And one of our most sacred legal precepts is that we must protect the innocent, even at the risk of freeing some of the guilty.  There is no government action more heinous than the punishment of an innocent, our legislatures pay hundred of thousands of dollars to those we inadvertently jail.  And we are a nation that claims to be unbiased; but in this action “blind justice” is clearly peeking out to see the color of the accused.

This must stop.   None of these individuals are responsible for this “crime,” and even if some of the “guilty” remain American citizens, so be it.  This “birth fraud” cannot be undone by the government sweeping up those who have done nothing wrong.  But, of course, it won’t stop, at least not until the last bastion of civil rights, the Federal Courts, step in.  Meanwhile, America, the home of the free, continues to act out the racists views of its President.