Haiku for Virginia Beach

Twelve dead, four wounded

Another day of mayhem

Something must be done

Playing the 2020 Field

Maybe the Democrats think that having 24 declared candidates is seven better than the GOP’s 17  in 2016. Or perhaps the lunatics are running the asylum. Nancy Pelosi can’t do everything, you know.

Either way, the party of Andrew Johnson has a problem  There are so many aspirants, it’s as if there were none.  Perhaps it’s better to think of the double dozen, not as viable contestants, but rather as a think tank, and the primary contests an extended brainstorming session.

The most prominent candidates, professional pols like current frontrunner Joe Biden, Cory Booker, Kamala Harris, Amy Klobuchar, and Bernie Sanders, do not have a single, signature issue. However, there are talented prospects on the taxi squad; people who possess experience in particular disciplines. For example:

  • Jay Inslee on climate issues
  • Elizabeth Warren on public education and family economics
  • Pete Buttigieg on homeland security and counterterrorism
  • Andrew Yang on automation and workforce
  • Tulsi Gabbard on armed services
  • Michael Bennett and Julian Castro on immigration
  • John Hickenlooper on gun control
  • Seth Moulton on national security
  • Tim Ryan on the economy and international trade    

How about locking them into a free-wheeling Internet-aired discussion, two or three at a time; forcing them to grapple with a single issue; challenging one another to propose a plan and then defend it. Require a proponent to explain how a program would be funded. Americans love new ideas, but we hate paying for them.

 These forums would provide the second-tier candidates with a way of distinguishing themselves, and at the same time giving the issues some Oxygen. The discussions could be posted on Youtube. They would be a stimulating sideshow to the Debates, an insufferable circus. 

Mr. Mueller’s Valedictory

Special Counsel Robert Mueller tendered his resignation to the Department of Justice, and he read a statement about the report bearing his name. A transcript of his statement, unredacted, appears at https://www.nytimes.com/2019/05/29/us/politics/mueller-transcript.html.
Mueller asked that the Report be allowed to speak for itself. Mueller restated that the first volume “details numerous efforts emanating from Russia to influence the election.” However, in the report the Mueller team found that there was “insufficient evidence to charge a broader conspiracy.”

Under the DOJ guidelines, the investigation of a sitting president is permitted to preserve evidence. However, because a sitting president cannot be charged with a crime,  Mueller concluded that it would be unfair to render a negative opinion in the Report.  Mueller referred to Congress’ separate process – impeachment – to formally accuse a president of wrongdoing.  It would be unfair to charge the president with a crime when there can be no court resolution on the subject. He  added nevertheless that “if we had had confidence that the president clearly did not commit a crime, we would have said so.”  Mueller is saying that they were not convinced that the president had not committed a crime.

Before closing the book on his Report, the outgoing Special Counsel took a moment to explain why in his judgment the investigation was no witch hunt.

“The indictments allege, and the other activities in our report describe, efforts to interfere in our political system. They needed to be investigated and understood. And that is among the reasons why the Department of Justice established our office. That is also a reason we investigated efforts to obstruct the investigation. The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.”

The fact that the president was not charged with election interference did not negate the need for the investigation. In addition, it does not render meaningless efforts to impede the investigation.

Revolted Colonies began in 2010 as an outlet for its lawyer/author to comment on America’s cultural and political divisions, rather than opine on the law. However, the Trump presidency has been a lawyer’s goldmine in so many ways. It has become nearly impossible to talk about the politics without talking about Trump,  or talking about Trump without mentioning lawyers and the law. For that reason, it is reassuring that, at the heart of the Mueller report, there is Mueller, doing the work of a lawyer: clearheadedly ascertaining facts and applying the law. There is something satisfying, to this lawyer at least, that Mueller did not become politicized or allow his work to be affected by the political tempest buffeting him.

Bless America

Family and friends aside, America is the best thing ever to happen to many of us. This is why I get emotional over the travesty of Trump’s government. He gets wrong so many things that I love about this country.

Foremost, the Constitution has been an incredibly ingenious document. Not perfect for sure, but resilient;  so far unbreakable.  Through the Constitution, the people of America have steered the nation through crises which threatened the continued existence of the republic.  Fundamentally, the Constitution is nothing without the people who interpret, study and honor it. It will never replace the King James version for some or the Torah and the Qaran for others. For me, the Constitution shares top billing with all of them.

The Constitution was conceived as a compact between and among states.  Alabama reminded us just last week that states are sovereign, making their own laws, even if they are out of sync with the Constitution.  The three branches each have an establishing article: Congress is set forth in the first part; the executive the second;  and judiciary the third. Congress makes laws, the Executive carries them out and Judiciary rules on conflicts between the two branches.

The judiciary has a busy season ahead of it, if the White House continues its siege against the Congressional hordes. Yesterday, Rep. Elijah Cummings’ House Oversight Committee prevailed in its onslaught against the obstructive administration. See The Sun Poked Through, 9/20/2019. Aaron Schiff and Jerry Nadler are teeing a few up as we speak.

This case and some others likely will reach the Supreme Court; a few no doubt will be consolidated for a decision. Trump calls it “his Court.”  He may be in for a surprise.  The judges don’t even think it is their Court. They are its caretakers only.

Even the most extreme members of the bench have lived in the law for decades. Its precept of stare decisis (let the decision stand) is the cornerstone of our laws.  Judges tend to follow precedent.  A court would rather create an exception to a strongly-held law, such as Roe v. Wadethe 1973 decision the right of a woman to decide whether or not to abort an unwanted pregnancy and in passing decriminalizing the performance of abortions by doctors, rather than overturn it.

When the new wave of anti-abortion laws reaches the high court, the media’s noise will be about overturning Roe v. Wade.  In Planned Parenthood v. Casey, the Court had an opportunity to recall the Roe decision but refused to do it.  Some of the qualifiers and restrictions under the Pennsylvania law were adopted; others stricken. Thus began the death of Roe by a thousand cuts.  The pro-life movement has attacked abortion practice using Planned Parenthood‘s lower standards to show to justify a restriction.    Most likely, Roe will be so eviscerated as to remove any semblance of control from the woman undergoing the procedure, assuming she can find a doctor willing to give perform one.  Trump will say that Roe’s been overturned, and the pro-choice movement will deny it. It  will depend on the state, because ( improbably) it is a state by state decision.

The Court will hear many other cases, some likely to rest on the meaning of the Constitution. The prospect does not promise judicial consensus.  In some cases, though, the Judges should see the Constitutional situation for what it is.  Nixon’s tape case (1974)  was argued before the same court as Roe v. Wade.  The bench split 7-2 on Roe with a dissent and a number of concurring decisions.  Nixon was unanimous 8-0, Justice Rehnquist having recused himself.

Even when the Constitutional issue is difficult (Nixon’s was not, nor will Trump’s be) the Justices tend to put forth a united front.  The Court was the final backstop for the conflict between Nixon and Congress.

Trump has restocked the  current Court with right leaners. The Chief has flirted with the center to maintain the Court’s credibility.  At least five judges will condemn Trump’s efforts to stonewall Congress.  Even Thomas, Alito, Gorsuch and Kavanaugh may recognize that setting a good precedent is more important than the expedient alternative.  Even if the Court votes to quash Congress’s investigative authority, Congress may nevertheless claim victory as long as the case is honestly fought, and the arguments are sincere and well-considered.

 

The Sun Poked Through

US District Judge Amit Mehta knocked down Trump’s application to quash the subpoena of his accountants’ records. Judge Mehta wrote a 41-page opinion. The gist of it is this:

“It is simply not fathomable that a Constitution that grants Congress the power to remove a sitting President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.”

In a nutshell, the Judge ruled that if Congress expresses a legitimate purpose for its investigation, it is not for the court – or the President – to second-guess it.

The same reasoning applies to other subpoenas issued by the House and Senate committees.  It remains to be seen if Trump will continue to resist the House’s investigations. If Mehta’s ruling stands, and it probably will, Trump’s continued refusal itself is a reason for impeachment, which the House will be constrained to undertake.

Darkness at the Center of Town

Congress is bearing down on Donald Trump and his administration of looters, opportunists and enablers.

The House Judiciary Committee has voted to cite Attorney General William Barr for contempt, for his refusal to share the Mueller Report in its complete and non-redacted form.  For Congress, this is the first step in a journey of thousands up to the November 2020 election, unless something occurs or is uncovered that will short-circuit the secrecies of the Trump administration.

I agree with most people who believe that impeachment is the correct action to go against a renegade executive, whether or not acquittal in the Senate is guaranteed.  Congress cannot allow unprincipled refusal to cooperate to be the norm.  Secrecy enables self-dealing and other corrupt practices.

Journalists, purveyors of the alleged fake news, are enjoying a golden age of investigative reporting.  Dogged persistence, in the face of White House recrimination and intimidation, has produced material revelations almost daily. The leaking of information, even if done for the wrong reason, casts light on the clandestine operation of Trump’s Washington. Without journalists, the government would be as dark as Dante’s Inferno.

Entire departments of the government are understaffed and opaque. Voters need to know about the government’s policies when they are affected by them. Voters need to know if elected officials are carrying out the laws in the direction promised.  They need to know if the officials themselves are complying with law.

Whether or not Trump’s obstructions were criminal, surely they were acts of misconduct. The Mueller Report at its root is a compendium of the administration’s  bad conduct, a subject with which our Congress in the first instance must be concerned. The Judiciary and Intelligence committees are charged with that duty. They should be allowed to know all of the facts and sources in order to maintain the integrity and effectiveness of government.

The Special Prosecutor’s Office was concerned with criminality. Congress must address the non-criminal aspects of the administration.  CASE CLOSED, Senator Mitch McConnell’s latest declaration, is intended to shut down Congress in its work. The Majority Leader is so wrong-headed as to warrant censure himself. Those of us who survived the Nixon presidency and the Watergate investigation know how close Nixon actually came to getting away with it.  A bipartisan Congress and an incorruptible independent counsel forced his hand.

The founders understood the principles of divided government, but they did not envision or provide for a government so split that it is polarized on the necessity of government.  The reason for the administration’s failure to fill posts and to keep policy under wraps is a distaste for governmental initiative. The administration governs by the law of the jungle.   Anti-democratic principles, such as Cheney and Barr’s unitary executive theory , fulfill a reactionary vision of American life, in which wealth rules with impunity, and those without it are subjects, not citizens.

Trump Got his Wall, and its Name is Barr

His Lips are Moving

Robert Mueller wrapped up his Report on the investigation into Russia’s interference in the 2016 election within a few weeks after  Attorney General William Barr took office.   Mueller spent 2-1/2 years and $30 million in taxpayer money investigating the Russia-US connection.  However, when the Report reached the Attorney General’s desk, Barr dropped his capacious,  prosecutorial shorts and sat on it. Barr needed only two days to comb through the 448-page tome and reduce it to a four-page summary; one which did not do Justice to it, according to its author.   After squashing the life out of the Report,  Barr picked up gobs of it  and threw them at his Senate interlocutors, much like a monkey might do.  Barr trashed the Mueller Report but has not been able to destroy it.  It remains a hot potato.

Robert Mueller may be ready to reveal some of its details. Then again, Barr’s Justice Department will impede Mueller as much as possible. [At the time of this writing,  written, Trump has tweeted that Mueller should not testify] Barr will not overtly refuse to have Mueller testify.  He will do whatever he can to limit the questioning. Meanwhile, Trump and Barr are trying to cast doubt  on Mueller’s mental process and  judgment.

Power Grab

Barr’s conduct as Attorney General has been overtly political.  He has justified his lifelong reactionary bias with “masterful hairsplitting,”   as Senator Sheldon Whitehouse described it. He has used his legal skills to dodge questions and avoid conventional legal processes.   Barr will never recuse himself or resign. Because of Republican control of the Senate,  impeachment will be only for show.  The only remedy is political; a Recall in November 2019.

Politics has always been serious business.  Status, money and power always draw the messianic and the megalomaniacal.  Things didn’t get crazy.  It’s just crazy suddenly got a whole lot crazier. When it comes to destroying the American way of life, well, there are good people on both sides.

Democracy in Chains

What Barr is doing goes beyond political gamesmanship.  He his endorsing views that put constitutional balance and restraint at risk. That’s just the way Trump and Barr like it; at least while they are in power.  Barr’s believes in his vision of America as fervently as anyone else. He believes it is important enough to through his professional reputation on the pile. He believes it is important enough to declare new legal postures that are preposterous.  His newest formulation of the extent of executive power would place the president beyond checks and balances.

According to Barr, the president has the right to terminate an investigation into his conduct without committing an obstruction of justice when the president knows he’s done nothing wrong.  And if the president is wrong?  You’ll never know because the investigation has been crushed. That’s some catch, that Catch-22.

Object; Permanence

Unfettered executive power will sustain a minority party president  when coupled with 1) defiance of congressional oversight and 2) a majority or a filibuster-wielding minority in the Senate. TheBarr Doctrine was crafted specifically to place the White House beyond the reach of the Congress.  As for the courts, the administration is, like, bring it on!  The administration will try  to hold the ball through the campaign season. If it can’t and if the ruling goes against it, ti will try  to fast-track a decision to the Supreme Court.

Christmas has come early for Donald Trump.

Ok, Now Let’s Kill All the Lawyers

The best news Attorney General William Barr delivered Thursday morning is that Congressional leaders from both parties will see the almost-naked Mueller Report. Grand jury testimony will remain sealed because Barr refuses to seek its disclosure. He’s exercising his discretion and is acting within the scope of his authority.

Barr’s refusal lays the groundwork for House Democrats to try seek the grand jury testimony legally, which Barr no doubt would oppose on legal grounds. The process  could take a year, which will allow Barr to run out the clock legally.

Barr’s recap of the Report falls squarely within the law. Barr and Rosenstein decided that there was as much evidence of Trump’s frustrations at being stymied after the inaugural as there was that he was trying to kibosh on the investigation. I don’t buy Trump’s defense but he has a right to assert it. Then it’s left to a jury, and juries are unpredictable.

Prosecutors get to decide which cases to prosecute. The U.S. Attorney doesn’t bring cases that are a toss-up, especially hot potatoes. In fact, judges run from those cases, too. They call them, “political questions,” and it’s the law.

We appoint a Special Prosecutor who works as free from political influence. Prosecutors don’t bet on trial outcomes because juries are just so unpredictable as possible . Even in a solid case, a defense verdict is always possible. Even if Trump we enough to see indicted, he might walk.   If Mueller was undecided then it’s hard to tackle Barr for putting his finger on the scale. He is acting within the scope of his office. That’s the criminal law.

There was plenty of red meat for progressives in Barr’s press conference. Beyond any reasonable doubt, Barr is Trump’s boy.   Pundits and Congress have good reason to see Barr as Trump’s fixer. He was Bush I’s operative in his first stint as Attorney General. Barr is a highly skilled lawyer. He knows how to find a matter’s  seams; the loophole; the catch; the escape clause; the space; the slack; the soft underbelly. That is where he has discretion. That’s especially where lawyers lurk.  Under the law, the only way to override Barr’s discretion is to show that he has abused it. It’s a high bar.

While I see the issues differently, I can’t attack Barr’s legal process. He has done what people demanded.  He has invoked the rule of law. He has twisted it to fulfill his political view.  Democrats are capable of the same sleight of hand.  That’s good lawyering for you.

The obstruction case against Trump is over. It won’t be reopened. House Democrats aren’t bound by Barr’s decision. They might see impeachable offenses where the DOJ  saw nothing to prosecute. The House will investigate as long as it have public support. It won’t impeach because it can’t convict in the Senate trial.   But that’s Politics, and 2020 is no longer very far away.

Barr Sinister

On the eve of the revelation of the Mueller Report, as futzed with  by Attorney General William Barr, be prepared for a politically motivated edit, leaving out much of the good stuff. Whatever he leaves in will be for appearances only.  No less an authority of putting party before nation than Mitch McConnell has described Barr as:

“A brilliant and principled conservative lawyer, Barr brings unique experience to the challenge of working at the intersection of law and politics.”

It takes a jaywalker like Mitch McConnell to recognize another one in Barr.

Bush Acolyte

This is not Barr’s first rodeo. After Bush took office in 1989, he sought to force Manuel Noriega out of power as Panama’s military strongman. He wasn’t having much success.  Bush then hit on a plan to prosecute Noriega for drug trafficking. One problem was getting hold of the perp.   Barr, then  an Assistant Attorney General at the Office of Legal Counsel, penned a legal opinion giving cover for the FBI to enter Panama and extract Noriega.  The FBI did just that.    Congress got wind of the memo and hauled Barr into for a hearing, demanding to see his full legal opinion. No need, Barr said. Let me just summarize it  for you.   Congress eventually got the legal opinion and supporting information by subpoena.  Lo and behold, Barr’s synopsis did not match his summary given at the hearing. Barr had omitted “significant findings” from his summary, which did not reflect well on the administration.  Not my idea of a credible crossing guard, but it’s obvious why McConnell thinks highly of him.

Barr is the Zelig of Republican legal-political scandals, popping up when someone has to throw cold water on a hot investigation.  During the Iran-Contra Scandal of Reagan’s second term, Barr put distance between independent counsel Lawrence Walsh and President Bush, Barr’s patron.  Barr thwarted Walsh’s  investigation, keeping heat off the president. He went on  to  support the pardons of six participants who had been indicted or convicted. The pardon of former secretary of defense, Casper Weinberger, averted a trial scheduled to begin only two weeks later.

Before Barr was a public servant or a prosecutor, he was a pol.  Notably, in the Barr entry in the Horace Mann year book of 1968, he is established as a staunch member of the school’s Republican Club. A Nixonite in the Age of Aquarius.   But then, he also was known for his sense of humor. Barr’s loyalty always has been, first, to party, then to country,  So, while wondering what Barr’s black-inked redactions have blotted outthink time, remember that he has been working his partisan Sharpie for a long time.

The best medicine for our sick republic is transparency.   Unfortunately, Bill Barr has signaled that there will be redactions which go way beyond those the law requires. Unlike his predecessors, he does not intend to seek disclosure of the grand jury testimony. In addition, he has added a new category for redaction – concerned with the embarrassment and privacy rights of third parties.  Someone acting in public office has no expectation or right of privacy in official or political functions. If something done is material to the investigation, he or she will have to live with the consequences.  It is more important that the report make sense than to protect those the tainted from their own taint.

There is no reason to believe that Barr suddenly appreciates the need for transparency.  He has proven shameful in his own right. He has taken bullets for his patrons before. Odds are good that he is about to do it again.

A Man Comes In Out of the Weeds

Jay Inslee is the Governor of Washington, and he’s running for President. He deserves serious consideration. 

He’s a Climate Change Warrior. It’s his one  issue, and he knows it well. He’s in the weeds on it, and he can go high when FEPOTUS  goes low. Not only that. He can explain it in a way that even a Luddite Real Estate Salesman can understand. Inslee has the kind of game that could give Trump a run in the red states. That’s a winning formula. 

Inslee is promoting himself as a one-issue guy, although that doesn’t do him justice. He explains that environmental policy is also job policy and education policy. After he opens on the environment, he pivots to these more accessible issues. He comes across like a seasoned, well-rounded intelligent guy who can put some meat on the progressive skeleton. 

Inslee served two terms in Congress. He can speak about the federal government with some authority. His pitch about Congress is that the filibuster has to go to get environmentally positive laws on the books. 

Inslee plays like someone who knows the business and how things get done. If he gets a hearing, he might find some traction. If he is the standard bearer, he has the kind of game to take Trump on. He won’t get bullied, that’s for sure

Getting some traction though is Inslee’s biggest hurdle. He slots into the middle-aged, white guy niche with Beto O’Rourke, who is already establishing himself as a formidable candidate. Beto’s sucking up money like a Roomba, and has some mojo reminiscent of Obama and Bill Clinton. Inslee has more substance, less charisma.

Too bad, it’s not even clear that the middle-aged, white guy will be this year’s model. Cory Booker, Kamala Harris  and Joaquin Castro are off and running.

The glass ceiling division, Senators Warren, Gillibrand and Klobuchar.  Each of them has a strong progressive agenda, with Klobuchar a popular midwestern figure.

Then there’s Bernie and maybe Biden, a slightly more seasoned variant.

A total of 22 candidates so far, and it’s early still  it’s too early to draw any conclusions about who can win beat the Groper. The Democrats must win back Wisconsin, Michigan, Ohio, Pennsylvania and Florida to be assured of victory. Whoever runs strongly through middle America will be the Democrat to beat.  In a one-issue race, it’s the only issue that counts.

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