Blue States’ Rights: How California And Other Blue States Can Hold America To The Paris Accords

This week, Donald Trump decided (or by the tone of his speech, Steve Bannon decided) to withdraw the United States from the strictly voluntary Paris Accords.  This decision was a tragic abdication of American leadership, and it is entirely possible that it marks the end of the American era. Why would any country ever enter a long term agreement with us again if our word is worthless? It was one of the most ridiculous self-inflicted wounds I have ever seen, and Trump’s prediction that the world would end up laughing at us has already become a reality. However, Trump’s destruction of American’ leadership may not actually destroy the planet. California, New York, and Washington have created the United States Climate Alliance, and intend to work with other countries, regions, and provinces to meet the Paris Accords. If they play it right, these states, and others that will hopefully join them, can use their constitutionally protected right to tell Trump to eat coal and enact laws that will keep the US to its Paris commitments.

States’ Rights Aren’t Just For Living Confederate Monuments Like Jeff Sessions

Those of us who take a dim view of America’s history of slavery and segregation tend to recoil at the term “States’ Rights,” because the concept has most often been invoked to promote institutionalized white supremacy. However, the Tenth Amendment, which says all powers not granted to the Federal Government belong to the States, is an essential check on federal power. It is there to protect California’s right to control carbon emissions just as much as it was ever there to help South Carolina persecute its black citizens. California already has a cap and trade system in place as well as other progressive environmental regulations. A State’s right to regulate internal  carbon commerce has already been established.

The United States Climate Alliance may not be able to control all carbon emissions in the US, but they may just be able to offset the transgressions of the Koch brothers and other polluters in states they cannot reach, and curb some big polluters in the bargain. Most carbon emissions don’t come from the federal government (although the Tennessee Valley Authority accounts for quite a few); they come from people and corporations. Just imagine that Oregon, New Jersey, Connecticut, Massachusetts, Rhode Island, New Hampshire, Vermont, Delaware, and Maryland join the Climate Alliance. About 100 million consumers live in those and existing Climate Alliance states. No business wants to voluntarily give up that many domestic customers over a few environmental regulations. A third of the American population uses a lot of power and a lot of cars and a lot of plastic, all of which come from fossil fuels (at least for the moment). Any business wanting to sell to consumers or do business in those states will have to adhere to whatever regulations the alliance may impose. The great news is that most big polluters are big companies, and big companies’ policies can be manipulated by a minority of states thanks to the power of capitalism.

Large Corporations have to set policies based on all states in which they do business

Big companies tend to develop internally consistent policies based on the most restrictive state law they have to obey. Let me give you an example: If 1/3 of American states pass a law mandating that all small SUVs must have 35 mpg as of 2020, American car manufacturers are not going to make a Ford Escape that gets 25 mpg for Alabama and one that gets 35 mpg for California.  They are going to create a product (given the technology already exists) that they can sell in all states.  Streamlining their products and policies to comply with all applicable regulations is a better and cheaper way for them to do business. There are also non-product related examples. Before marriage equality was decided by the Supreme Court, many large companies offered health benefits to same sex domestic partners.  This was often because some states required it.  It is easier for HR departments (or any other departments) in large organizations to have 1 policy to apply to all of its operations than different policies for every jurisdiction. Exxon, BP, and every other major oil company sell gas in California and every blue state. After all, that’s where most of the people are. Seems like a fair bet to me that they will be unwilling to forgo 100 million consumers – more than the entire population of Germany – just to avoid a little carbon cutting.

It’s time to use the tools we have to achieve the ends we want

With a petulant toddler at the head of the Federal Government, we need to look for alternative means to achieve our goals, and California has the right idea. For a hundred years, the South used their state laws to achieve the horribly discriminatory policies they wanted, and they succeeded, despite the existence of a constitutional amendment designed to prevent those policies. We have no such impediment! There’s no reason we can’t use our state laws to try to save the planet, or anyone else who needs saving, for that matter. One excellent aspect of federalism is that people in other states generally don’t kick up a fuss about what the state next door is up to, as long as it does not fundamentally offend human dignity, and it took almost two hundred years to nip that one in the bud. It’s time for us to support the United States Climate Alliance and any other state-level initiatives that can move our country forward. The more states sign on, the more consumers fall under a climate-protective umbrella, and the more polluters have to listen to us. Let the era of Blue States’ Rights begin.

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Shutting Down The Government Isn’t Just Stupid, It’s Ineffective

Donald Trump has decided that now is the time to withhold funding for Obamacare subsidies for millions of low-income Americans if he doesn’t get funding for his border wall. This is a typically asinine and pointless move on his part; for once, Democrats and Republicans in Congress seem to have been on their way to achieving a mutually beneficial deal without creating widespread collateral damage. Democrats’ reaction to this news was to promise they will shut down the government if funding for Trump’s border wall is included in the budget. No matter which party you support, this political brinksmanship with the basic functions of government has got to stop. If we were talking about a gross, unconstitutional threat to democracy like internment camps, there might be an argument in favor of a shutdown, but we’re not. We are talking about Trump insisting on pettily defunding a duly enacted federal program without repealing it, and the Democrats insisting on withholding funding for a stupid, pointless, expensive border wall that millions of Americans explicitly voted for. The integrity of the core institutions of government is more important than any policy goal. Holding the government hostage over partisan policy preferences erodes the structure of our Republic. More importantly, from a politician’s perspective, none of the shutdowns in the past 25 years benefited the fanatics who were responsible.

Newt Gingrich is a despicable megalomaniac and his gambit failed

Now, there were government shutdowns before Newton Leroy Gingrich came along, but they were in the order of 1-3 days. Even the first shutdown in 1995 wasn’t inconsistent with this history.  It lasted about 5 days.  However, Gingrich’s shutdown of 1995-1996 was a precedent-setting piece of political warfare that totally failed to achieve its goals. Gingrich initiated a standoff with Bill Clinton over which numbers Clinton had used to create his budget (Gingrich wanted him to use the Congressional Budget Office). Clinton, having produced a plan designed, as requested, to balance the budget in 7 years, refused to go back to the drawing board. On this basis, Gingrich shut down the government for 21 days. The American people were not impressed. Afterward, Republicans simply caved, and accepted Clinton’s proposal. The fact that the shutdown came after Gingrich felt snubbed during a ride on Air Force One did not help his reputation or make the shutdown more effective. Nevertheless, 17 years later, Republicans thought they’d have another crack at the shutdown strategy.

The Tea Party fell on its face trying to defund Obamacare

In 2013, the most fanatical tea party advocates in the House of Representatives advocated defunding Obamacare, since they did not have the ability to repeal it.  Over the summer of that year, tea party activists sent a barrage of phone calls and letters to members of Congress, demanding a government shutdown if Obamacare was not defunded. Senator Ted Cruz spoke for 21 hours on the Senate floor about his beliefs regarding shutdown. These developments forced even relatively moderate Republicans into going along with the party’s ideologues. Accordingly, the Republican House of Representatives shutting down the government for 17 days because it refused to fund the President’s signature domestic policy achievement. The shutdown ended when the Republicans were forced, due to widespread voter disapproval, to fund Obamacare. To add insult to injury, they were also compelled to raise the debt ceiling, or amount of debt the US government is able to repay, a particular bugbear of theirs during the Obama years. The shutdown was a total failure.

A failed strategy that damages government institutions is no strategy at all

It’s time to stop the madness. These ideological shutdowns don’t work! In this case, Congress seems to be working together, and Trump needs to stay out of it. Perhaps Trump is laboring under the delusion that he will get a popularity bump like Bill Clinton and Barack Obama did when the opposing party shut down the government. The trouble is, both of those men were trying to compromise with fanatics in Congress, not trying to insert poison pills into the negotiation at the eleventh hour. The Democrats seem to think taking a page out of the fanatics’ playbook is a great idea. It isn’t. In the last 25 years, Congress has never gotten its way from a shutdown. In our current political environment, I am vehemently opposed to drawing false equivalencies between the Democratic Party and the GOP under Trump. That said, if Congress fails to fund the government and shuts it down, I wish a pox on both their houses.

How Do We End Gerrymandering? By Suing A Deep Blue State

Once again, someone is asking the Supreme Court to end partisan gerrymandering of congressional districts based on a violation of the Equal Protection clause. Specifically, they asked the Court to evaluate whether the 2010 Wisconsin legislature drafted a map of congressional districts that effectively eliminated the voting power of Wisconsin Democratic voters. (This is a great explanation of how politicians use gerrymandering to keep power). There is no question that, at the moment, Republicans win the award for the most gerrymandered congressional districts. Perhaps, given how widespread the problem has become, the Court will finally decide to stop the practice. However, the outlook isn’t great. The Court ruled in 1986 that partisan gerrymandering violates the Equal Protection clause, but could not decide, either in that ruling or again in 2004, how to fix the problem. I think it’s time for a new strategy, and a law student from American University, Steve Shapiro, may have just the one. He has filed a suit arguing that gerrymandering violates the First Amendment, and sued the perfect test case – the heavily Democratic State of Maryland.

Suing a Democratic state could persuade conservative Justices

Maryland is a quiet little state nestled on the eastern seaboard, and most other Americans may only know it for its excellent crab cakes (but seriously, the crab cakes are really good). One of the interesting things about Maryland is that a fluke of history has made it one of the most gerrymandered states in the country. Democrats have held power in both houses of the legislature since 1918.  This is because Maryland was once a loyal, Democratic, segregated state in the Solid South, but since desegregation, it has gone its own way. As the rest of the South responded to Nixon’s Southern Strategy, Maryland became gradually more liberal, and today it is one of the bluest states.

Because it is a Democratic state, Maryland offers an opportunity to present the case against gerrymandering without attacking the Republican Party and its interests. Why does that matter? Four out of the five sitting Supreme Court Justices are dedicated conservatives, and Anthony Kennedy frequently sides with them. Obviously, Supreme Court Justices know that any gerrymandering decision will subsequently be applied to all states, but it doesn’t take a leap of imagination to suppose that a case brought on behalf of Republican voters might be persuasive. Supreme Court Justices are, after all, only human.

The First Amendment might be an easier sell than the Equal Protection clause

For one thing, it may be an easier argument because Anthony Kennedy seems open to it, and this is Anthony Kennedy’s Court. In the last gerrymandering case brought under the Equal Protection clause (arguing that political parties are a class of persons being deprived of equal protection of the laws) Justice Kennedy indicated he might be amenable to a free speech argument. It is no wonder – the Court has been unable to make Equal Protection work. Unlike racial classifications under the Voting Rights Act, classifying people by political party – by what they think – is a hairy prospect. It is hard to figure out when Democrats or Republicans have been discriminated against as a class and when it is appropriate for a court to intervene. Moreover, how is the Court supposed to invent a way for legislatures to re-draw the districts, without becoming overly involved in the political process?

Violations of Free Speech and Free Assembly rights under the First Amendment create a simpler metric and a simpler analysis than Equal Protection. The question is: did the Maryland General Assembly silence Republican voters deliberately? All Marylanders, like all Americans, have the right to freely form political associations and band together to have their political speech heard. If Shapiro can prove that the Maryland General Assembly took voting patterns into account when it re-drew the districts, that forms a pretty strong argument it deliberately infringed on the Free Speech and Free Association rights of Maryland Republicans. If so, the Court does not need to come up with formulas for distribution of voters, it can simply say “no legislature may take voting records into account when drawing congressional districts.”

A First Amendment argument may not solve everything, but it’s a start

You may be wondering whether simply ending the use of voter data in redistricting will fix the gerrymandering problem. It’s possible that it will not – politicians are known to be awfully tricksy, and they may find some sort of proxy for voting records that allows them to estimate voter behavior. However, that may be harder over time. People move around, demographics change, and a ban on using voter data may gradually even out congressional districts, even if it does not automatically bring an end to gerrymandering. We may never get a magic solution from the Court. The truth is, this is a problem we are supposed to be addressing through advocacy to our elected officials. The Court is in a Catch-22: it is certainly supposed to protect us from attempts by those elected officials to silence our votes and voices, but it is also not supposed to usurp the political process. Mr. Shapiro et. al. has given the Court a chance at a simpler rule against gerrymandering. Let’s hope the Court takes it.

Why Are We Still Arguing Over Reproductive Rights? The Problem With Roe v. Wade

Once again, Republican lawmakers are taking aim at the reproductive rights of American women. Assaults on Planned Parenthood don’t really make any sense – its primary purpose is to provide its patients with contraception and sexual health screening, and it’s the only provider in a lot of urban and rural communities. Planned Parenthood’s mission isn’t all that controversial. For all the prudishness expressed by many on the religious right, no one actually wants an outbreak of HIV or untreatable gonorrhea in rural and urban America (even Mike Pence). The only reason the Republican party is attacking contraception and women’s health organizations is because some Planned Parenthood clinics and many other sexual health clinics perform abortions. The “moral majority” just can’t seem to get at Roe v. Wade itself – yet. Social conservatives have allied themselves with judicial conservatives, who have a constitutional objection to Roe, for 40 years, and they aren’t likely to stop attacking reproductive rights unless the split in the legal community is resolved – which is highly unlikely.

It is the legal controversy, not the moral one, that has created Roe’s destructive power in our politics, because social conservatives know they can attack Roe by appointing the right people to the Court. Many perfectly rational judges and lawyers, whether they personally support abortion rights or not, are skeptical about the constitutional theory Roe was based on. In finding a right of privacy inherent in the 14th Amendment, the Court revived one of the most controversial theories of constitutional law in American history and based women’s reproductive rights on that unstable foundation. Basically, we’re fighting to protect the right of poor women to have access to pap smears because it did not occur to the men writing the seminal case on women’s rights that the case was about the equal protection of women’s rights at all.

About that right to privacy …

So here’s the thing: a woman’s right to have an abortion is based on a right to privacy that the Constitution does not explicitly grant.  That right, as applied in Roe, is read into the 5th and 14th Amendments, which say that no citizen shall be deprived of life, liberty, or property without Due Process of law. The Court says that the right of a woman to procure an abortion before her fetus becomes viable – when it could live outside the womb – is part of the “liberty” interest the State can’t take away from her. This act of reading into the “liberty” interest is called “Substantive Due Process” (I have never heard a good explanation why). On one hand, that seems completely logical. What could be more important to liberty than the right to control one’s health and bodily function? On the other hand, many lawyers and judges are very wary about reading rights into the “liberty” interest of the Due Process clause, because doing so is associated with one of the ugliest chapters of Supreme Court history.

I mean, why shouldn’t a kid work 70 hours a week?

In the late 19th and early 20th centuries, the Supreme Court went to quite a bit of trouble to protect the property rights of the wealthy at the expense of the huddled masses of 12 year olds apparently yearning to breathe some free factory air. The Court concluded that the “liberty” interest of the Due Process clause included a right to contract. In a series of decisions knocking down labor laws, including a federal law regulating child labor, the Court concluded that the individual’s right to contract was more important than the government’s interest in ensuring corporations were not abusing and killing its citizens. This era of pro-property rights Court decisions is called the Lochner era, after one of its most famous cases. This line of cases was finally overruled in 1935, and it is among the most clear and destructive examples of “activist judging.” So when Roe was decided in 1972, reading rights into the “liberty” interest in the Due Process clause, Substantive Due Process had long been a constitutional hot potato. It is favored by some Justices for its flexibility in adapting an 18th and 19th century document to the modern world and disfavored by others for its past and potential future abuses. The problem with basing Roe on substantive Due Process is that whether you agree with it or not, there are popular and valid legal arguments against it. The debate about reproductive rights isn’t going away because there are a lot of lawyers and judges who, whatever they think of abortion, are very wary of this line of reasoning.

What’s wrong with a little Equal Protection for the ladies?

The weird thing about Roe v. Wade is that it could have been decided on a much more solid foundation: the Equal Protection clause of the 14th Amendment. Had the decision been founded on that basis, some judges might have questioned whether abortion rights are an Equal Protection issue, but no one questions whether the right to Equal Protection of the laws exists. Moreover, it’s easy to prove that reproduction places a burden on half the population that does not exist for the other half. With many women acting as heads of household, it seems a pretty obvious argument that restricting their right to control reproduction effectively restricts their right to pursue their life goals and provide for their families in competition with men, who cannot get pregnant. Few, if any, judges would contest today that the clause applies to the rights of women. Indeed, the argument against the Equal Rights Amendment was and is that women are protected by the Equal Protection Clause. It seems unlikely Roe would have remained so profoundly controversial if it had been decided on that basis.

So why are we still arguing over reproductive rights? Because the men evaluating the importance of a woman’s right to terminate a pregnancy spent a great deal of time evaluating the medical history and implications of termination, but very little time evaluating whether an abortion could impact a woman’s ability to determine her future, as any man would expect to do. Ruth Bader Ginsburg has said that she wishes the first reproductive rights case had been that of a young female Air Force Officer who, when she became pregnant in Vietnam, was given the choice of terminating the pregnancy or leaving the service. Ginsburg thinks this illustrates the fact that the issue is a woman’s choice, not the mechanics of abortion. I agree. At the time Roe was decided, it was only two years after the Equal Protection clause had been applied to women for the very first time. The world might be quite different if abortion rights had been decided a few years later. However, all speculation about how Roe could have been decided is an intellectual exercise; it is unlikely substantive Due Process is going anywhere. As with all important civil rights cases, Roe v. Wade has other precedents built on top of it, most importantly (in my opinion) the entire line of gay rights cases involving sexual privacy and marriage. So ladies, when the next Supreme Court seat opens up, grab your gay friends and protest for all you’re worth, because all of our rights depend on it.

 

 

 

If Treason Swung An Election, What Do We Do About It?

Ever since the news started trickling out that Trump and seemingly all of his associates have or had incredibly suspect ties to Moscow, I’ve been wondering … if Trump’s campaign committed treason, what the hell are we going to do about it?  Now that it appears Michael Flynn may have flipped on Trump, we should ask what the fallout would look like. Let’s assume, for purposes of argument, that 1) Donald Trump and his campaign coordinated with a foreign power to swing a US election, and 2) that action qualifies as treason. (I think it would, and you can read more about the current law of treason here.) There are two solutions to the problem that have been widely discussed in the Press and on social media. The first is to nullification of the election and the second is impeachment. I have already written on this blog that nullifcation is not warranted, and that rationale stands. Impeachment as a sole solution is also problematic. If Donald Trump committed treason by colluding with Russia as a means to assume power, every decision he has made as President could have been taken to serve the Kremlin’s interest in undermining American democracy. His entire Administration would be illegitimate, and must be expunged. If impeachment won’t solve all of the problems posed by a treasonous Trump, it’s up to us to figure out – is there a remedy?

He’ll have to be impeached, but that may not fix the problem

The trouble with impeachment is that it is a remedy for a personal criminal act, not a remedy to nullify the actions of a compromised President. Treason is explicitly mentioned as a basis for impeachment in Article 2 of the Constitution, so if Trump committed treason, he’ll get impeached. The problem is that impeachment would only remove Trump from office. That leaves all of his Executive Orders and federal appointments in place. If his appointees do not immediately resign, it would be hard to use impeachment to expunge Trump’s, and Russia’s, influence and decisions from the enormous executive bureaucracy.

Assuming Trump’s appointees do not immediately resign, in order to get the worst apples out of the executive, you would have to impeach not only Trump, but Pence, Sessions, Tillerson, and anyone else who may have participated in the conspiracy with Russia. Impeachment is a lengthy process. First, the House of Representatives, which acts like a Grand Jury, decides, on presentation of evidence, whether to impeach – or indict – the President or other executive officer for a criminal act. Second, the Senate conducts a trial. This process takes a while; Bill Clinton’s impeachment and trial took almost two months from beginning to end. Trying to impeach so many executive officers would take many months in which the legislature is not concentrated on the business of the public. That wouldn’t just be a scandal factory, it would impair the government’s ability to function.

No one anticipated this, so we don’t have an existing remedy

As importantly, even if Congress were able to impeach every conspirator, the problem remains: Trump set out to deconstruct the Administrative State and deliberately nominated departmental heads who will destroy their agencies (just look at the EPA). As with all of Trump’s decisions, we cannot know if he did so to serve Vladimir Putin’s ends. If I were Vladimir Putin, I would definitely want the US President to cripple all the institutions of American government. If Trump is proven to have colluded with Putin, there’s no reason to think he’d object to undermining our democracy. He’s been undermining it with his lies and conspiracy theories since he became the Birther in Chief. As the law currently stands, we cannot undo Trump’s actions unless the subsequent President chooses to do so. If Trump’s appointees did not commit a crime, and they will not resign, and the subsequent President does not fire them, we can’t get rid of them.

Clearly the drafters of the Constitution contemplated Presidential treason – it is the only crime mentioned in the Constitution, and it is a stated basis for impeachment. After all, these are the people who had to contend with Benedict Arnold. However, a situation in which a candidate for President could collude with a foreign power to disseminate propaganda, hack opposing political parties, and swing an election, thereby raising a specter of a foreign agent running the US government, could not have entered their minds. The technology did not exist to facilitate the type of treason Donald Trump and his associates could have committed. Impeachment isn’t enough; it could leave in place decisions and appointments designed to undermine American democracy and serve the interests of a power and a man – Vladimir Putin – who has declared his opposition to our system and values.

We need a mechanism for purging a Presidency acting on behalf of a hostile power

Should it emerge that Trump has committed treason, we need to purge his stench from the Executive. Congress will almost certainly impeach him and, if necessary, Mike Pence, and his appointees will probably resign, if they are not fired by the new President Ryan (who would be the strangest accidental President ever). However, I don’t think relying on the next guy’s discretion to reverse Executive Orders and fire cabinet appointees is an appropriate institutional protection for electing a real life Manchurian Candidate. One of the beauties of our system is its checks and balances, and we need a check for this situation. We can’t just rely on the next guy to do the right thing.

To restore faith in the Presidency as an institution, we need a mechanism to purge the acts of a President who assumed power through collusion with a hostile nation. As Director Comey said last Monday, this form of political warfare isn’t going away.  He expects the Russians to be back in 2018 and 2020. Currently, the 25th Amendment sets out quite clearly what happens when a President dies or is removed from office, and doesn’t provide for the invalidation of an Administration’s actions. I think it would promote confidence in the integrity of American government to establish a remedy for these circumstances, either through Congress, if it has that power, or through a Constitutional Amendment. We are in uncharted territory, and even if Trump has not colluded with Russia to the degree this argument supposes, if Russia remains determined to use non-military means to take down western democracies, we have to assume that someone else might. Trump is not the only rich, amoral narcissist in the country, and if Vladimir Putin dangles the Presidency in front of another one, who’s to say one of them wouldn’t take the bait?

 

Should the Supreme Court nullify the Election?

With every day that Donald Trump drags the federal government further into chaos, his opposition tries to think of ways to remove him without relying on Congress.  As Democrats, liberals, and progressives, it has become second nature for us to turn to the Court to protect our rights, so it is not surprising that some petitioners have asked the Court to solve this problem. Some less than reputable “news” organizations on the Left , like Occupy Democrats and Politicususa (yes, we resisters have our own fake news),  have recently reported that the Supreme Court has “advanced” a petition to nullify the results of the election.  Now, the Supreme Court hasn’t “advanced” anything, and the petitioners’ legal argument is pretty meritless, but it is still worth asking: should we be looking to the Court to save us from Trump?

The answer is: absolutely not. For one thing, the Court lost a hell of a lot of credibility when it installed George W. Bush as President in Bush v. Gore, and a repeat won’t improve anything. For another thing, the ongoing Russia investigations involve the Trump campaign’s collusion with Russia to influence voters and spread disinformation, not hack the actual mechanics of an election. The remedy for criminal conspiracy to hack the DNC is to kick the criminals out of office, not nullify an election that was properly conducted. We can’t expect the Court to repeat its Bush v. Gore mistake and nullify an election when it was the American people, not the electoral process, that were hacked by Russia.

In the interest of self-preservation, the Court can’t touch this

The Court really screwed the pooch the last time it helped picked a President, and it behooves us all to avoid asking the Justices to do it again. To recap Bush v. Gore, there were manifold voting irregularities in the State of Florida during the 2000 election, and the Gore campaign, behind by about 500 votes, asked for recounts in several parts of the state. The George W. Bush campaign tried to stop the recounts, and there were conflicts between the Republican Secretary of State for Florida, who worked for Jeb Bush, and the Democratic Supreme Court of Florida, sending the suit up and down the state courts and to the US Supreme Court.  Ultimately, the case ended in the Supreme Court for a second time, and the Court stopped all recounts, in one of the most controversial decisions in recent history. This decision was widely seen as an example of unelected judges imposing their personal political opinions on the electoral process. Justice Sandra Day O’Connor, the swing vote on the case, has said the Court shouldn’t have taken the case.  Justice Stephen Breyer has said that it damaged the Court’s credibility, though not permanently. Preserving Court credibility is crucial for anyone interested in resisting Trump. It is against our interests as opponents of the Administration to ask the Court to compromise itself.

Even if the Court would hear it, there isn’t a good case for nullification

There are two major problems with the idea of judicial nullification of Trump’s election based on Russian hacking.  The first problem is that the Russians didn’t hack the electoral process; they hacked the people voting in the electoral process. The second problem is that voters don’t elect the President of the United States, Electors do. Those Electors are supposed to be the stopgap against demagogues hoodwinking the people into bad decisions.

The Russian government did not hack the hardware or processes of the election in the states, like voting machines, computers, or other data management tools.  The legal process of counting votes appears to have proceeded properly in all fifty states and the District of Columbia. By hacking the DNC and John Podesta’s e-mail account, Russia attacked a private political organization and a private citizen’s personal e-mail account, and disseminated controversial information that targeted the decisionmaking of individual voters.  Russia hacked us, the American public, not the legal process.

The Court can’t nullify an election based on the fact that voters believed Russian propaganda.  The Founders did predict that voters might be influenced by demagogues, or even by disinformation. Fake news and airing dirty secrets ain’t new, and Tom Jefferson would swear to you those Election 1800 broadsheets about Sally Hemmings were libel! James Madison et. al. created the much maligned Electoral College to act as a check on uninformed democracy. Despite wide-ranging discussion of so-called faithless electors turning the election for Hillary Clinton, the Electors cast their votes largely as expected, and we got Donald Trump. Unless someone produces evidence that Russia actually interfered with the mechanics of voting -changing the tallies, inventing voters, or stuffing ballot boxes – the Court can’t nullify anything.

Trust the Constitution, support the Press, and impeach Trump for his lies

The Justices don’t need me to tell them not to take this case – I’d bet my bottom dollar they will not. However, I do think it’s important to think about why the rest of us shouldn’t be asking them to in the first place. The Constitution lays out one remedy for removing criminals from executive office: impeachment. Currently, the Press is digging for every connection Trump has to Russia, every lie, every dirty trick, and hopefully his tax returns. There is a profusion of leakers in the intelligence community and the Executive. The path is clear – we need to amass as much information as possible, help the legitimate Press expose Trump and his cronies, and take back Congress in 2018. We, as Americans of both political parties, have done enormous damage to our Republic in the past by pushing one branch of government to impinge on the authority of another to achieve our ends. The Court is the only branch of government consistently acting as a check against Trump. We should not ask it to compromise itself because we are scared of Paul Ryan and the Turtle.

Don’t laugh about “Terror” in Sweden: the results are anything but funny

It never helps to dismiss apparently ridiculous statements from the Trump Administration.  As this blog has previously asserted, they are not as ridiculous as they seem. Donald Trump made what appeared to be a hilarious gaffe during his campaign-style rally in Melbourne, Florida on Saturday. While discussing the difficulties faced by some European countries due to their acceptance of significant number of refugees, Trump implied that there was a refugee-related terrorist incident on Friday, February 17 in Sweden. There wasn’t.  However, that does not matter.  As hilarious as this statement may have seemed to Trump’s detractors, his supporters now believe that the media, which Trump is trying to discredit, is concealing a terrorist attack in Sweden. I would suggest to you that, like the Bowling Green Massacre, this lie, whether it was a mistake or not, contributes to the Trump Administration’s use of Muslims as a Scapegoat to unify his supporters and conceal his incompetence and ignorance of how government works.

The Courts have revealed that Trump can’t deliver

Trump’s scapegoating of Muslims is nothing new.  He famously called for a ban on all Muslims entering the United States. He called for a national registry of Muslims in the United States, including Muslim Americans. It spoke to the not insubstantial percentage of Americans who genuinely fear terrorism from abroad. However, Trump’s plans to unify the country against the threat of “Radical Islamic Terrorism” have been stymied by the Federal Judiciary.  The Executive Order on Immigration banning entry to the US for citizens of 7 Muslim nations didn’t work for anyone.  For Americans who value constitutional rights, the rollout was a disaster and the Order was, at best, overbroad.  For Trump’s supporters, it failed to fulfill a campaign promise to exclude foreign Muslims from the US.

When in doubt, point the finger!

Trump’s, and his lieutenants’, instinct to point the finger when things don’t go their way is pretty consistent with the behavior of Dictators past and present. As this blog has stated elsewhere, active use of scapegoating tends to be inversely proportional to a would-be autocrat’s success.  In other words, if he’s delivering on his policies, no scapegoats are necessary! If he’s not, he’s got to direct the public’s attention elsewhere. Let’s look at an example:

Good old gestating Dictator Nicolás Maduro of Venezuela came up against this very problem last year.  Oil prices were tanking. Inflation was soaring.  Homicides were up. No one was happy with him. What is an autocrat to do? Well, Maduro discovered that three border agents had been ambushed by two men on a motorcycle.  Within hours, this incident, which was not organized and didn’t kill anyone, had become a paramilitary attack, justifying a crackdown on Columbian “smugglers and drug dealers” throughout Venezuela. Of course this crackdown turned into the mass persecution of ordinary Columbians resident in the country, but that is not the point of this article.  The point is that Maduro did it in order to refocus public attention on an unpopular scapegoat in order to distract them from his failures as a leader.

Trump is playing the same game

Trump’s fictional Swedish refugee terrorist is the third fake terrorist the Trump Administration has invented in a single month. First, Kellyanne Conway gave us the Bowling Green Massacre.  Then Sean Spicer told us there was a terror attack in Atlanta.  Now we hear there was a refugee related terror attack in Sweden!  These could all be misstatements, as the White House says. I just don’t think it’s likely that all of them are. Lies this big tend to have a target.  Is it more plausible that Trump and his lieutenants are repeatedly misstating the nature or location of terror attacks, or is it more likely they have discovered that these lies are politically advantageous for them? We already knew that the majority of Trump supporters believe the Bowling Green Massacre actually happened. Now we know they believe an attack happened in Sweden.  The only real question is, exactly what political purpose does this serve? The answer is, they help the Trump Administration scapegoat Muslims in order to misdirect the public, and it’s one of the oldest tricks in the book.

 

The [Free Press] is not the Enemy of the American People, but it still might not be able to stop Trump.

Yesterday afternoon, Donald Trump tweeted “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!” This is a turning point in Trump’s criticism of the Press. It is no longer just unfair to him, it is our collective enemy. We knew it was coming.  All the signs were there. Throughout the campaign Trump claimed he was running against a “rigged press.”  His supporters adopted a powerful and despised German term, the “Lügenpresse” or lying press, to describe the news outlets that brought down Richard Nixon.  Since his inauguration, he has called those same outlets “Fake News.” Yet still, even if it isn’t surprising, it is still shocking that Donald Trump, as an American President, is running Play #4 in the Dictator’s Playbook, and acting to discredit the Free Press as an institution of our democracy. Here’s what we can expect, the good, the bad, and the ugly.

The Good

The American Press is pretty resilient, and at its best it has been heroic. Recently, our major news outlets have been running down every lead they can to hold Washington accountable, and they have been careful to substantiate each new bombshell story.  But for the Press to be most effective, reporters aren’t the only people who have to demonstrate heroism.  The great thing about our current situation is that we have an ample supply of the secret ingredient to Press effectiveness – whistleblowers .  From the unexpectedly bold National Park Rangers to the many members of the intelligence community leaking to the Press, the material is there for brave reporters and leakers to expose the Trump Administration.

People on the inside of a corrupt and dangerous administration are the ones who have to expose it, and that is happening. The reams of information seeping out of the executive branch have provoked comparisons to Nixon White House during Watergate.  It’s a great comparison, and it’s important to remember that Woodward and Bernstein could not have become Woodward and Bernstein without Deep Throat (Mark Felt) and their many other informants.    The New York Times and the Washington Post, in particular, have been delivering the hard, unbiased, factual reporting they delivered during the Pentagon Papers and Watergate stories.  They are rising to the occasion.  The problem is, 20 years of the scandal-ridden, unfocused 24 hour news cycle started discrediting the press corps before Donald Trump ever put on a red cap.

The Bad

On the day Trump took office, the credibility and effectiveness of the Press was already in pretty bad shape. This problem started before “fake news.” In fact, I would argue that fake news only took hold because the public had already lost faith in the Press. This loss of faith is dangerous, as any possible impeachment scenario will likely rely on evidence discovered by the Press. Two primary factors have left us in a position where the Press is one of two institutions that can hold the Republic together, but it may lack the credibility and effectiveness to do so.The first is the 24 hour scandal cycle, which dulls the public’s ability to separate a real threat from a minor political misstep and the second is the media’s alienation of individuals on the Left, Right, and Center of the ideological spectrum.

The first problem is that the salacious details of Bill Clinton’s sex life started a new Press paradigm of  seeking out and manufacturing scandal.  Gotta keep those ratings up! We impeached a President because he perjured himself over a blowjob.  The Press reported George W.Bush’s use of cocaine as if it were a major scandal.  Howard Dean whooping at a rally brought down his campaign.  To some extent, during Bush’s second term, the scandal manufacturing slowed down because actual scandals about the invasion of Iraq and Hurricane Katrina emerged, but the public as a whole paid less attention to the severity of those problems because every “scandal” was reported with the same seriousness and severity.  This got even worse under Obama.  The IRS “scandal” went on for months and the Benghazi reporting went on for years.  The public becomes numb to endless outrage.

The second problem is that since the 90s, almost everyone on the ideological spectrum has lost faith in the Press.  In the scandal industrial complex the news has become, people with different ideological beliefs want to pick the scandals they hear about.  The Right hasn’t trusted mainstream outlets since the Drudge Report broke the story of Monica Lewinsky’s blue dress. During the Bush Administration, the Left began to seek out media that would report on issues like Bush’s attacks on gay rights and abortion.  Finally, the center lost faith in the Press when, during the run up to the Iraq war and invasion, it traded its integrity for government approved access, and failed to expose the Bush Administration’s use of faulty evidence to lead the American People into a costly war, the consequences of which are still haunting us.  The Press put itself in its present position. As Radiohead says, you do it to yourself.

The Ugly

If the Press is or becomes truly discredited, and Trump really wants to seize power, he will likely act to limit its ability to disseminate information.  For some would-be Dictators this takes the form of legally rescinding the freedom of the Press, as Hitler did in the Reichstag Fire Decree of February 1933.  Others restrict content by opening a state media outlet, as Vladimir Putin did with RT, or purchasing hostile media while requiring transmission of government statements, as Nicolás Maduro has done in Venezuela.  Often, emerging autocrats muzzle the Press by simply murdering journalists, as Putin has unquestionably done. Knowing that Trump admires and consistently defends Putin casts Putin’s tactics vis-à-vis the Press in an alarming light. It is not inconceivable that Trump sees Putin’s tactics as a model. However, the Ugly hasn’t happened yet, and until it does, we have to read, support, and share reliable, fact based articles from reputable sources like the New York Times, the Washington Post, the Wall Street Journal, and the Economist. In a very real way, the ability of the Press to hold Trump accountable, as it did Nixon, depends on each of us, and our willingness to believe that it can.

 

Flynngate and Impeachment: Lots of smoke, but no fire

No one loves a good round of Schadenfreude more than I do, but the enthusiastic talk of impeachment surrounding the demise of National Security Adviser Mike Flynn is a tad premature. Flynn’s abrupt resignation in the wake of revelations that he lied about his communications with the Russian Ambassador, Sergey Kislyak, before taking office, has undoubtedly concerned Democrats, the intelligence community, and some Republicans.  Hopefully, this incident has refocused them on finding out whether any crime has been committed by Trump or his lieutenants with regard to Russia (or anything else).  However, according to what we currently know, it does not provide grounds for legal action against Flynn or Trump.

What we know as of February 14

Let me give a quick recap of how we got to Flynn’s resignation: During the transition, the Obama Administration imposed sanctions on Russia in retaliation for its hacking of the DNC and individuals associated with the Democratic Party. Shortly thereafter, Mike Flynn spoke to Ambassador Kislyak on several occasions, and questions arose in the Press about whether they discussed Obama’s sanctions. On January 15, then Vice President-Elect Mike Pence told CBS that Flynn had not discussed sanctions with Kislyak. On January 26, Acting Attorney General Sally Yates told the White House Counsel there was evidence that Flynn did speak with Kislyak about sanctions. On February 9, the Washington Post reported that Flynn had lied to Pence about the content of his conversations, and Trump denied he had any knowledge of it. On February 13, Flynn resigned his post, essentially stating that he unintentionally excluded the full content of his communications with Kislyak when briefing Administration officials. On February 14, the New York Times reported that Trump had known about Flynn’s misconduct for at least two weeks.

Why Flynn’s actions probably are not criminal

Neither I nor anyone else outside the intelligence community can say for sure whether any of Flynn’s actions are criminal, because we do not yet know the content of those conversations.  However, we do know that the only statute applicable to the facts as we know them, is the Logan Act of 1799, and that it probably won’t be applied in this case.

The Logan Act, frequently raised in political infighting, has only seen one indictment in 218 years, when, in 1803, a farmer advocated the creation a new western state allied with France. Since then it has been thrown around a lot: Ronald Reagan suggested using it against Jesse Jackson and Speaker of the House Jim Wright; Congressman Steve King suggested using it to limit Speaker Nancy Pelosi’s international travel; and it was widely argued that when 47 Republican members of Congress wrote a letter to Iran trying to sink the Obama Administration’s nuclear deal, they violated the Act. The Logan Act is a political football, and Flynn’s actions don’t seem sufficiently severe to inspire prosecutors or Congress to use it as anything else.

Although Trump was not yet President and Flynn not yet his adviser, Flynn’s conversations took place after a valid election, and it is normal for transitional administrations to talk to foreign leaders. The DOJ has said it is unlikely to bring criminal charges. Frankly, it would be shocking if they did.  Even when Richard M. Nixon, who definitely had a copy of the Dictator’s Playbook on his bedside table, sent a representative to sabotage the Vietnam peace talks during the 1968 presidential campaign, neither he nor any of his associates were prosecuted. This is not a law to hang our hopes on.

Where there’s smoke, there is fire … somewhere

There is definitely something rotten in the State of Trumpmark.  We may not be able to indict Michael Flynn or impeach Donald Trump for Flynn’s conversations with Russia, but there is a lot of circumstantial evidence of some sort of misconduct.  In addition to the many examples of Trump’s bias toward Vladimir Putin, the New York Times reported today that Trump’s aides regularly spoke to Russian Intelligence operatives during the course of the campaign. Hopefully, this will lead to further investigation by the Press, Congress, and the intelligence community into whether prosecutable crimes were committed.  Until then, we need to hold our guns on impeachment talk.  This is like building any criminal case.  We have to find evidence Trump and his associates violated the law. We cannot afford to jump at every plume of smoke we see.  We have to go find the fire.

 

Free Speech and Civil Disobedience, or how we should stop worrying and learn to love the fire hose

It’s time to talk about the purpose of peaceful protest in a democracy.  I have noticed that on social media and in some articles like this one, advocates of resistance to the Trump Administration are failing to distinguish between two types of protest: lawful protest, and civil disobedience.  The difference is not semantic; they are distinct tools with distinct impacts. The purpose of protest in democracy is both to convince those in power that there is overwhelming support for a cause, and to persuade one’s fellow citizens that the cause is just and they should support it. To achieve that purpose, a resistance, like the military, needs individual campaigns, each with an objective, a strategy, and tactical resources. Among our most powerful tactical resources are lawful protest and civil disobedience, and we need to employ them effectively.

The Difference between Lawful Protest and Civil Disobedience

Lawful protest is planned in coordination with the local government, and is intended to obey local laws and ordinances. The Supreme Court has consistently allowed restrictions on speech based on the time, place, and manner of the speech, including restrictions on blocking traffic and sidewalks, harassment, and loud noises. This means that although local government cannot pass laws affecting the content of your speech, they can pass laws requiring permits for large gatherings that will interfere with traffic and the business of other citizens.  In contrast, Civil Disobedience involves deliberately disobeying a law, usually peacefully, in order to protest government action or injustice.

How is Lawful Protest most Effective?

Two great examples of permitted lawful protest are the March on Washington for Jobs and Freedom, and the Women’s March on Washington.  The first obviously had a significant historical impact and is talked about to this day; I suspect the impact of the second will fade with time, no matter how many people participated.  There are two primary differences between the two: 1) the March on Washington had a specific goal – to obtain a civil rights act from Congress and to help oppressed African Americans get jobs, and 2) it had a very disciplined and controlled message.

The March on Washington stuck to its goals and its message.  It talked about jobs and civil rights.  Its leaders forced John Lewis to edit out “militant” sentences in his speech.  It opened the march to all allies who supported its specific objectives. Indeed, Malcolm X criticized it in his Message to the Grassroots for refusing to demonstrate black anger and for allowing white people to participate (female speakers were also excluded, probably for less lofty reasons).   Then, when it concluded, the leaders went directly to the White House to speak to the politicians to whom they had just proven popular support for their positions.

In contrast, the Women’s march had no concrete objective, and the opposite of a controlled and focused message.  Instead of communicating a purpose, it focused on ensuring every issue affecting every woman in America was heard.  Consequently, although politicians did participate, they were not pressed to pursue any specific policy to achieve the goals of the assembled people.  They were simply presented with a policy platform pretty much lifted off the Democratic Party’s books.  The Women’s March did a great job of irritating the hell out of Donald Trump, and that’s a great start, but future protests need to aim to achieve a concrete result. For a template, we can look to the original March.

How is Civil Disobedience most Effective?

Civil Disobedience is most effective when the disobedient citizen peacefully presents himself  to suffer a disproportionate response by those in power. People don’t like watching other people get abused, and the public is usually, if not always, able to identify a disproportionate response.  Some Americans may have initially dismissed the Standing Rock Sioux and their supporters as trespassers, but people took notice when the police used water hoses in 28 degree weather. Obviously, this tactic was also used extensively and to great effect by the Civil Rights Movement of the 1960s, and was a huge agent for convincing middle America that it, through the government, must act.  These images are part of our national consciousness now: dogs and fire hoses being turned on unresisting people walking down a street in Birmingham;  marchers being beaten for walking across the Edmund Pettus bridge in Selma; Rosa Parks refusing to sit at the back of the bus.  That kind of suffering makes a lasting impact.

Unlike legal protest, civil disobedience often requires sacrifice. You have to put your personal needs aside in favor of the greater goal. It requires time in jail.  It requires harassment and sometimes physical assault.  And to be most effective, the protester cannot resist. It is probably the most powerful tool available to convince our fellow citizens that the government is wrong, and we are right, because it makes them see government through our eyes.  You can watch a nonresistance training video from the Student Nonviolent Coordinating Committee (SNCC) here.

How to Protest in Trump’s America?

There are going to be a lot of causes we can support with lawful protest and civil disobedience in the coming months and years.  Going forward, we need to focus one protest campaign against each unconstitutional or unlawful overreach by the Trump Administration, because if we focus each campaign on a specific violation of law, we can mobilize across the ideological spectrum.  We will not succeed if we impose an ideological test on resistance. If constitutional conservatives agree that there should not be a religious test on Muslim immigration, work with them.  If a pro-life feminist group believes that access to contraception is essential to the equal protection of America’s women, work with them.  And if Donald Trump orders the executive branch to disobey a federal court order, work with every single American – evangelical christian or radical socialist – who is afraid of losing a functional branch of government and put a human barrier between Trump and his objective. Like the protesters and lawyers in airports across the country have sought to do in response to the Muslim ban. Massive protests and acts of civil disobedience are powerful tactical tools, and in this era of perpetual outrage, the fire hose is our new best friend.