Author: Evan Sarzin (Page 1 of 21)

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.

Bridge and Tunnel to Nowhere

 

The other night, a friend asked me who I would vote for in Tuesday’s Special Election to fill out the remainder of Letitia James’ term as Public Advocate, I answered plainly: I don’t know. I’ve had a day to think about it and to read up on many of the seventeen candidates, and I can now give a more informed answer: I don’t know.

Public Advocate is the minister-without-portfolio office created by the City of New York to replace the elected position of City Council President once it had been declared unconstitutional. The PA has no official duties, which is fortunate because the office has no executive power. It can investigate but can’t issue subpoenas or hold hearings. It is an office that is mostly about being a foil to the mayor. Historically, the office has been a stepping-stone for young pols, who seek the searchlights of the City.

The PA’s megaphone and $3.6 million budget galvanize ambitious people. Seventeen heat-seeking prodigies (15 Democrats and 2 Republicans) have stepped forward for this one-off vote. The Democrats are fighting for the ambience of Alexandria Ocasio-Cortez’s bright sunlight. They agree in varying but insignificant ways on the two leading issues of the day: Diversity and Amazon, as the embodiment of all income inequality issues. The better-known Republican has been the only supporter of the now-scuttled Amazon deal. This may boost him above the mostly-partisan affair; aside from political rhetoric, many New Yorkers considered Amazon’s selection of Long Island City to be good for New York. For good or ill, Amazon has been a linchpin for his pitch.

New York is a city engulfed by end-stage capitalism, having fully gentrified two of five boroughs already. Progressives have good reason to fear the introduction of a new corporate predator to the already-unbalanced New York Eco-System, More corporate jobs, more displacement of long-time residents and the dismantling of residential communities. The crux of the Democratic argument is that rather than suck up $3 billion in tax subsidies, Amazon should have been willing to pay for its place in the New York firmament.

The law of supply and demand is sometimes suspended in New York politics. Over the past 50 years, New York has lost its position as the center of the corporate and financial universe. It is a notoriously expensive and challenging place to live and work. This is one reason that so many corporations removed headquarters from Manhattan. It was astonishing that Amazon selected New York at all. Naturally, tax subsidies sweetened the pot.

Amazon had pledged 25,000 corporate jobs, the kind that creates the demand for new housing stock, services, good schools, etc. This is a boon to a city whose economy is closely tied to finance, real estate and tourism. The return of corporate jobs is a good thing but for the fact that those who provide services to the new enclaves are being priced out of the places where they now live and arguably would work. Many working people already have long and largely unpleasant commutes. A good transit system would help, but our crack lawmakers don’t have a clue about that. New York needs the jobs and the revenues but it also needs to figure out a way to make life available and affordable within the city precincts.

I’ve searched in vain for a candidate who articulates even an acknowledgment of the complexity; never mind the solution. Retail politicians advance on the quality of rhetoric. They depend upon others to develop new ideas. Judging by the discourse, New York’s think tanks are at drought levels. Its public advocate candidates have nothing new or interesting to offer. Under the circumstances, I Don’t Know is a ringing endorsement.

Peckergate: Bezos, Pecker and Bezos’ Pecker

Amazon/Washington Post chief Jeff Bezos and National Enquirer (AMI)  boss David Pecker have squared off in public over Pecker’s threatened publication of purloined pictures of Bezos’ penis. AMI threatened to publish photos Bezos sent to Lauren Sanchez, his paramour, unless Bezos made a public statement that AMI’s earlier airing of Bezos’ extramarital affair wasn’t politically motivated.  Post Publisher Bezos is a frequent political target of Donald Trump, and Pecker and the future ex-president, who has stumped for tougher libel laws, are old chums.  Bezos believes that the Enquirer’s attack was politically motivated, and he went public with AMI’s threat, calling it blackmail and extortion, rather than knuckling under. 

Legal pundits took promptly to the airwaves.  Alan Dershowitz, one-time hero of the Left, presented the first section of his future appellate brief on the subject of libel and extortion. The constitutional law scholar argued that AMI is protected by the first amendment, which, when it comes to extortion, needs “some breathing space.” Dershowitz pulled the term from the existing body of first amendment jurisprudence, in which it has been used to limit government’s ability to restrict speech or to punish the speaker. 

In  the 1963 landmark case of NY Times v. Sullivan, the Supreme Court ruled that a media defendant could not be held liable for libel unless its publication was motivated by actual malice. In his opinion, Justice William Brennan employed the breathing space parlance to justify enhanced press protection.  

Breathing space has become a fixture in first amendment cases.  In 2012, the Supreme Court struck down as unconstitutional a federal law making it criminal to lie about earning a military honor, referencing  the necessary breathing space.  Even a lie about valor deserves a little oxygen. 

Dershowitz repeated the phrase several times, suggesting that he was trying to sell the concept’s  application.  He argued that, under the principle of breathing space, the first amendment protects coercive extortion if carried out by a member the media. 

Blackmail and extortion are types of coercive speech; threats to cause a listener to do something he or she might not otherwise do. Blackmail is the demand for payment in exchange for not disclosing something concerning the listener.  Such as “Give us $140 billion or we’ll publish a picture of your pecker.” That’s illegal, no question.  But “ Make an announcement that our reporting about your affair wasn’t politically motivated or we ’ll publish a picture of your pecker.” Not illegal, according to Dershowitz and AMI. 

The latter is speech designed to influence a listener’s decision. If the listener has a legitimate choice in response, the threat can be considered persuasive speech. “Endorse the Wall to prevent the country from being overrun by a caravan of Honduran refugees or we will report that you want the country to be overrun by a caravan of Honduran tefugees,” is of the persuasive sort, arguably. “Endorse the Wall or we’ll publish a picture of your pecker?” Feh.  

In the former case, the threatened reaction is related to the subject of the demand. More to the point, the listener has a legitimate choice that flows from the subject. In the latter case, the response has no connection to the threat. The threatened action is meant to cause the listener personal humiliation and economic loss,

havng nothing to do with his political position on the Wall. 

Coercive speech doesn’t deserve breathing space.  In fact, it should be smothered in its sleep.  Free speech is intended to enable an open exchange of ideas, free of official repression.  The first amendment wasn’t intended to protect someone threatening personal harm to a listener.   that instance, it is the listener, also a member of the media,  whose first amendment rights need protection. 

Worth a Thousand Words and a Shove Out the Door

Virginia Governor Ralph Northam, Democrat, admitted yesterday that he posed in a racially offensive photograph . In 1984 he and another medical school student posed as a black man in black face and a Klansman in a Ku Klux Klan hooded robe. The picture was published as his yearbook page. The editors at the East Virginia Medical School didn’t have a problem running it.
The two men are shown standing next to each other but it isn’t a promotion for National Brotherhood Week. Northam issued a public apology (although, today he’s denying it) and didn’t try to defend the photo or offer context. So far, despite calls for his resignation, he refuses to step down. He will probably be forced to resign; replaced by Lieutenant Governor Justin Fairfax, who is black.

It’s hard to look at the picture and say, “That was then and this is now.” Certain instances of racially and sexually abusive behavior have ended public careers and caused public ostracism. There is no statute of limitations  and no possibility of rehabilitation. Some acts are so shocking and offensive that forgiveness would be considered acceptance. In those cases, there is zero tolerance.  Our society is still working through how Northam and others like him should be treated for such offenses. There is a compelling reason, other than politics, to banish Northam. Short of physical violence, black face, along with the “N word,” is the most publicly reviled display of racism. The photo is a graphic representation. It is more nauseating to see it than to hear about it. Ostracism sends a clear signal to parents and children to preach against this form of hatred, or else make sure it’s hidden in a place where no one will see it.

For now, Northam, a Democratic politician, will be forced out due to the 1984 photo. For now, Steve King, a Republican politician, was stripped of all leadership positions by Kevin McCarthy, the Republican leader, due to racially offensive statements made publicly and reported.  However, Congress stopped short of censure and removal. Different result if there was no picture of Northam or if King had been videotaped? I think so. Different result if Northam was a Republican and King a Democrat? Without a doubt.

No Takers on Trump Nothingburger

The White House proposal Saturday to end the shutdown was a feint, an illusion  of compromise.  Actually, it was a Nothingberder. 

The administration proposed three years of temporary protection for the Dreamers, which was DOA.  The White House thought to act because the Supreme Court is unlikely to hear its  appeal of the lower court’s rejection of Trump’s DACA termination. The odds are about 20  to 1 against the High Court taking the case (the final posting for this year’s cases will occur Tuesday). In effect, Trump was offering ice in the winter. Pelosi and other Democrats would not consider it. 

Even worse for the White House, Trump’s pitched looked like amnesty to his supporters, which will piss off Rush, Ann and the 2016 base. Trump’s proposal should never have seen the light of day.

Mike Pence said that the proposal showed the administration is reaching out. It doesn’t seem likely. The Trump base hated it. The Democrats didn’t give it a thought. Media on the left and right ridiculed it. The proposal was just another misconceived publicity stunt.

Game, Set and Match?

If Trump specifically directed Cohen to conceal the true status of Trump Moscow in his Congressional testimony, that is subornation of perjury, a crime.  It’s the kind of crime Congress can’t ignore. 

It would have to be that precise and there’s got to be corroborating evidence. Cohen vs Trump won’t do it.

Wait! There’s More!

Prior to his testimony, Cohen filed a written statement with Congress, reviewer in advance by the White House, which falsely represents Ed that the Moscow project ended in January 2016  in fact, it didn’t end until the following November.

Cohen: “I assume we will discuss the rejected proposal to build a Trump property in Moscow that was terminated in January of 2016; which occurred before the Iowa caucus and months before the very first primary.”

No one st the White House interceded to correct the record.

It’s 2016 All Over Again

Future Ex-President Trump got soundly thumped for his speech from the Oval Office. He said nothing new, looked as if he were embalmed and couldn’t wait to get off the air. Yet, when it was over, I had this disquieting feeling, like I had not really heard him at all; as if it passed right through me.

The Democratic leadership followed him up, chiding him for his lies. I knew that I had heard this before; not just the other day from the White House lawn, but three years ago on the campaign trail. They still haven’t learned that this approach fails with an audience that is willing to forgive him his trespasses because it thinks that he stands for a greater truth. The Democrats would do well to take this seriously. They must meet the substance, not the form, of the argument. The Democrats are missing the forest for the trees – again. This myopia guarantees another four years out of power.

FEPOTUS wants to build a Border Wall, but nevertheless admits that it is not an answer for Border Security. The Democrats do not want a Border Wall but they recognize the need for border security. They dismiss the Wall as a medieval answer to a 21st Century problem. They claim that Trump is lying about a crisis at the border, and they argue that if there is a humanitarian crisis, Trump has caused it. They reached a stalemate, and our government has decided to put itself out of business.

The government shutdown is entering its third week, with federal employees going without a paycheck. FEPOTUS said two weeks ago that he was proud to own the shutdown. Although he has retreated from those words, he might just as well double-down on them. He will live or die by them. Republicans have begun to retreat publicly. At least four Senators would vote to reopen the government but Majority Leader Mitch McConnell won’t put the measure up for a vote. Each side vows that it will let this stalemate drag on until the other side caves. In the meantime, 800,000 federal employees and their dependents are in existential peril.

The Democrats and the media see this as all on Trump.  They are preaching to their choir, just as they did in 2016. They are not addressing the anger and frustration of an active and discontented part of the electorate; which put is faith in Trump, notwithstanding his lies, insensitivity, corruption and sheer incompetence.  Although Trump has scaled back his thirty-foot concrete monument to a steel fence, the true believers have not shrunken from their belief in the need for a barrier and a belief in him.

The Democrats should have called for hearings on the first day of the new Congress. They should have a parade of witnesses on the situation along the border and other witnesses as to what is needed. If there is a crisis, then the adults, our adults, should be fashioning a solution. At least, it would show that they are taking the concern seriously enough to investigate and move toward a solution. That, more than any words, would show that they care about the truth of the situation and the solutions needed for greater border security.

If the Democrats do nothing, FEPOTUS can call off the shutdown with impunity. He’ll say he, not Democrats, “cares” about the federal workers. He will take credit for offering a solution, however ridiculous it may be. The Democrats, having done nothing, will be made to appear closed in heart and mind, and they’ll have way to fight back. Hillary Redux.

Democrats may not agree that there is a  need but they will do themselves a disservice by trivializing the concerns of those who do. Deplorables Redux. To Democrats, Schumer and Pelosi’s rebuttal to Trump looks earnest and responsible. To non-Democrats,  it sounds like a hectoring scolding, and they appear to be smug and petulant – much the way Hillary did. They’re misreading the situation again, again, again.

The Rainbow Congress: Two Narratives

The composition of the 116th Congress has garnered a lot of attention. The singular event for the House Democrats was the swearing-in of its diverse caucus, a happy moment amid the gloom of the ongoing government shutdown. Among the new faces was Representative Rashida Tlaib, one of two Muslim women first to hold a seat in Congress. Two Native American women gained House seats for the first time. Alexandria Ocasio-Cortez, the rock star of the Rainbow Congress, at 29 is the youngest woman ever to win a seat. Only 38% of the Democratic members are white men.  When Democrats saw the class photo, their hearts soared proudly at the picture of diversity.

Meanwhile on the other side of town, Donald Trump cringed as he examined the picture of the Rainbow Congress. . The scene looked like a shuk, an outdoor market in the square of a Middle Eastern town. He double-checked the photo for goats and donkeys before tossing it on the Resolute Desk. Trump thought, this is a picture of the end of America.

Two Trains Running

Two competing concepts propel American historical study.  One is the narrative of American triumphalism. It extols the founders’ prescience, the virtues of industry and capitalism and the “great man” theory of history.  The other narrative is that of American progressivism, the story of the disenfranchised, persistently struggling against monied, reactionary interests.

In the Progressivist narrative, American history becomes as a story of enlightened people, forever seeking to overcome the Constitution’s slavery-driven imperfections.   Under the conservative and incremental legal system inherited from England, it chronicles the inexorable journey toward a more perfect union.

Both narratives are needed for a coherent, non-pixelated view of American history. Trimuphalists consider the Rainbow Congress to be the democratic experiment gone horribly wrong. People are taking office who weren’t meant to hold power or even to have a voice in government. They will ruin our institutions.

Progressives hold that the Rainbow Congress proves the striving narrative. If Progressives remain strong, their efforts will win them a seat at the table. The Blue Wave Midterm success fulfills the Progressive aspiration for universal equality contained in the Declaration of Independence.

The Morning After

On the second day of the Rainbow Congress, Representative Tlaib publicly referred to Donald Trump as an M.F., as in “impeach the M.F.”  The putative MF-in-Chief, scolded the freshman representative, saying that she disrespected the nation and disgraced her family.

Representative Ocasio-Cortez defended her colleague, tweeting:

Republican hypocrisy at its finest: saying that Trump admitting to sexual assault on tape is just “locker room talk,” but scandalizing themselves into faux-outrage when my sis says a curse word in a bar.

Speaker Nancy Pelosi had tried to avoid the I-word.”  Now, she had to address it, as well as deal with Tlaib’s coupling of it to the Oedipal sobriquet. Pelosi said that while she doesn’t monitor her caucus’s language, she thought it wasn’t much different from Trump’s remarks, such as referring to certain black pro football players as SOBs.

For at least one day in a suddenly different Washington, political correctness, along with the federal government, stood in recess.

 

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