Monday, May 27, 2019

Expediting justice, like it or not

THE WHEELS of justice grind slow but grind fine,” Sun Tzu observed in The Art of War. That observation is a truism nowadays, and has been for a long time, but even that reality has exceptions. Sometimes, justice doesn’t just take its sweet time for its own sake; President* Donald Trump is learning that justice gets fast-tracked now and then — despite his best efforts and those of his proxies to keep that from happening.

House Trump is dealing with the inconvenience of that occasional judicial efficiency. Politico, for example, reported on May 23 that Trump’s fight to stop release of his financial records is being fast-tracked for a three-judge appellate panel to make a pivotal decision.

From Politico: “In a two-page order, the D.C. Circuit Court of Appeals’ judges scheduled oral arguments for July 12 in the case that pits the president’s attorneys against House Democrats, who issued a subpoena to the accounting firm Mazars USA for eight years of Trump’s financial records.

“The court date will come several weeks after a lower court rejected the president’s attempts to block the subpoena, arguing that the request was politically motivated. Trump’s lawyers immediately appealed the ruling, and the president called the opinion ‘ridiculous’ and ‘totally wrong,’ and noted Judge Amit Mehta was an appointee of President Barack Obama.

“In the next round of legal sparring, Trump will go before a panel of judges that includes another Obama appointee, Patricia Millett, as well David Tatel, a Bill Clinton appointee, and Neomi Rao, who joined the D.C. Circuit in March as a Trump appointee.”

That case follows the one presided over by Mehta, who ruled on May 12 that he would decide the Mazars USA matter in expeditious fashion.

“The sole question before the court — is the House Oversight Committee’s issuance of a subpoena to Mazars USA LLP for financial records of President Trump and various associated entities a valid exercise of legislative power? — is fully briefed, and the court can discern no benefit from an additional round of legal arguments,” Mehta wrote. “Nor is there an obvious need to delay ruling on the merits to allow for development of the factual record.”

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THESE RULINGS suggest the existence of a judiciary, some of it vetted and approved by Trump and Senate Majority Leader Mitch McConnell, that might have some pesky, inconvenient ethical affinities for actually following the law. They suggest there are judges that don’t like being presumed to be partisan, regardless of the law they’re sworn to uphold.

Mehta and the three-judge panel, at least, and maybe more, are inclined to push back against the intrinsic cynicism of the Trump administration, and its various attempts to slow down the progress of Trump-related cases through the court system — trying to manipulate labyrinthine bureaucracy and an already-crowded court calendar for a nakedly political purpose.

Judges probably don’t like being worked that way. Who the hell would?

◊ ◊ ◊

The administration’s hopes of running out the clock on subpoenas and congressional inquiries into Trump’s actions will run headlong into a problem they can’t control: There’s too much clock. There’s way too much time between now and November of this year for House Trump to navigate, let alone the time until November 2020; there’s already too much of a contrary dynamic loose in the national air.

And there’s too much in the court system that can’t be controlled by House Trump. If the swift rulings by Mehta and the three-judge panel are any indicator of what’s coming, the slow meandering  through the district-court judiciary garden, the scenic-route journey the administration was counting on, may not come to pass. The reasons why have more to do with practicality than politics.

The judges about to be tasked with ruling on the Trump-related congressional inquiries that can’t get resolved in Congress will realize (if they don't already) that the gravity of these matters — what’s at stake in the rulings for each or all of them, from the standpoint of their centrality to the rule of law itself — makes slow-walking cases like these an impossibility. They’re too important for that. We can anticipate House Democrats asking for expedited status on that basis.

But ironically, these cases are also too insignificant. Various legal analysts on the cable channels and elsewhere have said that administration claims of executive privilege and other dodges to maintain Trump’s cherished business-records confidentiality are so procedurally improvisational, so obviously unlawful that they’d be effectively dismissed from the start. What better cases to make short work of than those that shouldn’t have come to court in the first place? We should expect the district courts, judges appointed by Trump or not, to expedite those cases — or reject them — for that reason.

Image credits: Trump side-eye: Saul Loeb/AFP/Getty Images. Mehta: public domain.

Saturday, May 25, 2019

Pelosi's head game

HOUSE SPEAKER Nancy Pelosi reacted recently to the stonewalling of the Trump White House with a statement that was slyly provocative, almost genially subversive. Speaking May 22 at an annual Center for American Progress conference in Washington, Pelosi related what happened at what was supposed to be a frank discussion about infrastructure with President* Trump and Senate Minority Leader Chuck Schumer.

“In an orchestrated — almost to an 'oh, poor baby' point of view — he came into the room and said that I said that he was engaged in a cover-up and he couldn't possibly engage in a conversation on infrastructure as long as we are investigating him,” Pelosi told the audience.

That “cover-up” statement is about as close as Pelosi will get to a full-on shrieking call for impeachment. The statement didn’t exactly breathe rhetorical fire, but it didn’t have to. Trump’s reaction to it — a flurry of tweets, a mandatory chorus of denials from various Trump deputies who didn’t dare cross the boss — said everything. In the Trump Tower of the president’s mind, Joe Biden is happily living in one wing of the penthouse. Nancy Pelosi is happily living in the other.

◊ ◊ ◊

The Speaker of the House has been a gradualist on the idea of pursuing impeachment against Trump. More and more of the Democratic caucus are deciding otherwise, sometimes angrily so. They believe that the constitutional leverage is entirely theirs in clashes with the executive branch. And they rightly raise the inescapable question: If the actions of this president don’t warrant impeachment inquiry, the threat and threshold of impeachment — as a deterrent and a recourse — may be irrelevant, if not worthless, now and in the future.

Pelosi may be on to something: Trump is just enough of a fight fan to appreciate the rope-a-dope pugilistically engineered by the legendary Muhammad Ali. When Pelosi says Trump is daring Dems to impeach him, she’s saying she thinks Trump is getting the Democrats into playing his victim game: Trump the aggrieved.

Pelosi’s plan so far has been to let things play out organically without jumping to a full-blown impeachment inquiry. She’s making Trump wait. She’s letting Trump punch himself out on Twitter, with bluster, in public. She’s getting Trump ensnared in a head game, locking the presidential asterisk in a functional limbo, unsure whether House Democrats will move to impeach him or not, and unable to really make a move without the certainty of which way the Democrats will go. At the mercy of as many events as he’s in control of.

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NO QUESTION, Pelosi’s playing a high-wire game. She runs the risk of alienating her own caucus (and undercutting the House’s singular oversight responsibility) by not holding an impeachment inquiry. More and more House Dems are bringing pressure on her to call the question of how to formally hold Trump accountable using the constitutional machinery distilled in what Trump fearfully calls “the I word.”

But Pelosi has capably played on Trump’s vanity and his tragically outsized insecurities, and worked the minder of the Oval Office into a deep funk that’s more and more apparent every time their paths cross. She’s got his number, big time. And he knows it.

In one scene in the 2012 Daniel Espinosa film Safe House, the exasperated, outplayed CIA-agent protagonist Ryan Reynolds tells his turncoat antagonist (played by Denzel Washington) why he refuses to be, well, exasperated and outplayed.

Reynolds says, “I’m not gonna let you get into my head.”

Washington tells him, “I already am in your head.”

Guess which character’s Nancy Pelosi. Guess which character is Donald Trump.

Image credits: Pelosi: Andrew Harnik/Associated Press. Ali: Source tk.

Donald Trump’s great cascade

DONALD TRUMP has spent more time in getaway weekend mode than any modern predecessor in the Oval Office, but he earned some time away from the office this holiday weekend. He didn't decamp for Mar-a-Lago, his usual haunt, with Melania in tow. Trump, wife and associates instead left for Japan, to meet with Prime Minister Abe and to meet Emperor Naruhito and Empress Masako, the first to ascend the Chrysanthemum Throne in more than 30 years.

It's just as well he left town. The fuselage door to Air Force One closed behind a president* with more than the usual bad news to be obsessed over. Some of it will be especially unwelcome, since it calls into question the power, if not the existence, of The Base that Trump has relied on since his term began.

Writing in The New England Journal of Medicine in 1986, James W. Mold and Howard F. Stein, of the University of Oklahoma Health Sciences Center, defined the term “cascade” (in biological context) as a reference to “a process that, once started, proceeds stepwise to its full, seemingly inevitable, conclusion.” A political version of the same thing has been accelerating in and around the Trump White House, a succession of bad news events building one after another, never more frequently than the last seven days.

◊ ◊ ◊

First there was the bad news everyone reported on all week: On Monday, May 20, in Washington, U.S. District Court Judge Amit Mehta upheld House Democrats’ subpoena for Trump’s financial records, ruling against Trump’s attempts to suppress the congressional subpoena intended to get Mazars USA, his accounting firm, to surrender his tax returns and other privileged financial docs.

In a 41-page opinion, the judge unraveled Team’s Trump legal arguments against the subpoena’s validity like a cheap suit. The special object of Mehta’s attention was the assertion by congressional Republicans that the House Judiciary Committee has to conduct an official impeachment inquiry before sending out subpoenas.

“It is simply not fathomable that a Constitution that grants Congress the power to remove a 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," Mehta wrote. “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a president, before and after taking office,” Mehta wrote. “This court is not prepared to roll back the tide of history.”

◊ ◊ ◊

THAT WAS MONDAY. That was bad enough. On Wednesday, May 22, it got worse. That’s when Judge Edgardo Ramos of the United States District Court for the Southern District of New York ruled against a Trump request to stop Deutsche Bank, Trump’s lender of first and last resort, from complying with congressional subpoenas seeking his cherished, deeply guarded financial records.

NBC News reported that Deutsche Bank had made “more than $2 billion in loans to the president during his business career, and he still owes the bank at least $130 million, according to Trump’s latest financial disclosures.”

The New York Times reported on May 22 that House Financial Services and Intelligence Committees “had agreed to hold off on enforcing the subpoenas until seven days after the judge’s ruling, giving Mr. Trump’s lawyers time to appeal the ruling. ... but House Democrats are now closer than ever to securing a vast cache of long-sought documents.”

◊ ◊ ◊

And oh yeah, that same day, House Speaker Nancy Pelosi said flat-out that President* Trump was “engaged in a cover-up.”

"In an orchestrated — almost to an 'oh, poor baby' point of view — he came into the room and said that I said that he was engaged in a cover-up and he couldn't possibly engage in a conversation on infrastructure as long as we are investigating him," Pelosi told the audience at an annual Center for American Progress conference, as reported May 22 in The Hill.

What had happened? Trump threw a hissy fit when he first heard about Pelosi’s “cover-up” comment, then he showed up about 10 minutes late for a meeting he never intended to do anything at in the first place. He met with Pelosi and Senate Minority Leader Chuck Schumer at the White House for all of three minutes before noisily declaring the meeting over, and then decamping for the Rose Garden for the weak stagecraft of an obviously planned speech before the waiting press corps.

◊ ◊ ◊

TRUMP GOT more interesting news May 22 with the NBC News report that “Wells Fargo and TD Bank are the two of nine institutions that have so far complied with subpoenas issued by the House Financial Services Committee demanding information about their dealings with the Trump Organization, according to the sources. ...

“Wells Fargo provided the committee with a few thousand documents and TD Bank handed the committee a handful of documents, according to a source who has seen them,” NBC News reported.

Tuesday, May 14, 2019

Getting out of line: Four departures
from the partisan

WE PROBABLY shouldn’t have wondered. When you spend enough time in the bizzaro world of presidential politics, anything, it seems, can happen. Anything at all.

The one undying catechism of Republican identity in Trumptime, the absolute enduring reality is that the Republicans, from rank & file to leadership, constitute a solid wall for support for President* Trump in particular, and the Republican / conservative agenda generally.

But few things monkey-wrench a rule like a real-world, working exception to that rule. Or four of them. Within the last month, four things happened that call into question the willingness of conservatives — from everyday-people Republicans in two deep-red states to lawmakers on Capitol Hill — to abide by the expected Republican orthodoxy of behavior toward those on the other side. There’s been listening going on, and maybe even a reach, back and forth, across the aisle.

◊ ◊ ◊

On April 15, Bernie Sanders, the Vermont Democrat seeking the presidency, was favorably received by the audience at a Fox News town hall in Bethlehem, Pa. — an audience you’d think would be predisposed to make a red-meat meal of the progressive Sanders, by way of interrogation by two aggressive Fox News moderators, Bret Baier and Martha MacCallum.

But it didn’t happen like that. It was more than halfway civilized, Sanders in a spirited serve & volley with the Fox News team, and with the audience. Sanders engaged positively with the audience in a call-and-response that effectively made the town hall stage Sanders’ own campaign event.

And then there was the set-piece moment — when Baier asks the presumably conservative audience if they could support Medicare for all, and the presumably conservative audience applauded. For more than a moment.

◊ ◊ ◊

ON MAY 8, news reports surfaced that the Senate Intelligence Committee, stealing a serious march on the functions of the Senate Judiciary Committee, subpoenaed Donald J. Trump, Jr., a son of President* Trump, to examine his possible role in Russia’s interference in the 2016 U.S. presidential election. The Intelligence committee is chaired by North Carolina Sen. Richard Burr ... a Republican.

“The subpoena puts Burr at odds with some of his Republican colleagues who want to move on after the release of Mueller’s findings,” The Associated Press reported. Those colleagues include Senate Judiciary Committee Chairman Lindsey Graham, the South Carolina pepper pot whose hair self-combusted when he learned of the subpoena.

“ ... if I were Donald Trump Jr.'s lawyer I would tell him, 'You don't need to go back into this environment anymore, you've been there for hours and hours and hours,” Graham said on Fox News Sunday, in an expression of toweringly bad advice. “And nothing being alleged here changes the outcome of the Mueller investigation,” Graham said. I would call it a day.”

Frank Luntz, a GOP pollster told USA Today that the subpoena “is a courageous move for Burr, for the senator, because he knew that the angriest people would be members of his own party. It shows that he is pretty secure both in his position in the Senate and among his own voters.”

◊ ◊ ◊

On May 10, Politico reported that Republicans on the House Intelligence Committee — Texas Rep. Mike Conaway leading the way — praised California Rep. Adam Schiff, the chairman of the committee, “for creating a newfound sense of comity on the Intelligence Committee — reflected in the committee’s bipartisan request for all of special counsel Robert Mueller’s files.” This after Conaway took Schiff to task, about six weeks ago, in the wake of the Mueller report's release, urging Schiff to submit “your immediate resignation.”

“Schiff probably deserves the lion’s share of the credit because he sets the tone as chairman,” Conaway told Politico. “Let’s keep looking through the front windshield and not reprise a fight that’s behind us. The committee for the last several weeks has operated old school, and that’s a credit to leadership — Adam Schiff’s leadership as well as Devin’s,” Conaway said, giving a shoutout to California Rep. Devin Nunes, the panel’s top Republican.

◊ ◊ ◊

ALSO ON MAY 10, Massachusetts Democratic senator Elizabeth Warren, headlong into her own campaign for the White House, was similarly received in Kermit, West Virginia, heart of the coal belt and as rock-ribbed a Trump constituency as Trump could ask for. Warren was heartily applauded by the audience, as she held forth on different issues, most notably the 800-pound gorilla crisis: the opioid epidemic for which West Virginia is one of several grounds zero in the United States.

Politico reported: “Warren entered the room from behind a large American flag draped in the station. Roving around a circle of people seated in fold-out chairs, she tried to strike a tone equal parts empathy and fury, while avoiding pity. She went full prairie populist, telling people their pain and suffering was caused by predatory pharmaceutical barons.

“The 63-year-old fire chief, Wilburn ‘Tommy’ Preece, warned Warren and her team beforehand that the area was ‘Trump country’ and to not necessarily expect a friendly reception. But he also told her that the town would welcome anyone, of any party, who wanted to address the opioid crisis. Preece was the first responder to a reported overdose two years ago only to discover that the victim was his younger brother Timmy, who died.

“Preece said after the event that he voted for Trump and that the president has revitalized the area economically. But he gave Warren props for showing up.

Wednesday, May 1, 2019

Biden's in. Deal with it.

AMERICA IS an idea,” Joseph Robinette Biden Jr. told us in the campaign video from the Biden web site, the web site that indicated like nothing else could that, as of April 25, the former vice president was officially joining the 2020 presidential conversation, making his bid to reclaim the American idea from its captors, foreign and domestic.

In the video, Biden speaks over footage of the deadly 2017 neo-Nazi marches in Charlottesville, Virginia, describing those involved as having “crazed faces, illuminated by torches.” “And that’s when we heard the words of the president of the United States. He said there were quote ‘some very fine people on both sides.’” Biden slowly repeats the words “very fine people.”

He then said that, with those words, “the president of the United States assigned a moral equivalence between those spreading hate and those with the courage to stand against it. And in that moment, I knew the threat to this nation was unlike any I’d seen in my lifetime.”

◊ ◊ ◊

Biden continues. “I believe history will look back on this back on four years of this president and all he embraces as an abhorrent moment in time. If we give Donald Trump eight years in the White House, he will forever and fundamentally alter the character of this nation. Who we are. And I cannot stand by and watch that happen. ...

“That’s why today I am announcing my candidacy for President of the United States.”

Biden seeks the 2020 Democratic presidential nomination in a field of contenders too crowded by half, all of them facing a ruthless but damaged president whose disregard for the rule of law beggars the imagination. Biden also confronts a Democratic field eager to put distance between now and the past, even at the risk of alienating the voters whose loyalty has lifted the Democratic party before, more than once.

Ironically, Trump and the Democrats are using the same tactic in the runup to the primaries. Both are trying to frame the coming election as an inescapable existential choice. Trump hopes to cast Democrats as socialists and pit them against the nation; some in the Democratic party are working to pit Democrats against themselves. Both are doomed to fail, and Joe Biden may well be the reason why.

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WHAT I observed about Biden in October 2015 is true today: He’s “an Amtrak-corridor politician unafraid to meet people on their turf; a voluble man of outsize emotions; an empath of American politics — making the gaffes and outbursts of passion that mark him as human and, as such, eminently electable as one of us.”

Joe Biden is, among other things, someone who believes in the function of the American government, and the singular genius of that government’s operators’ manual — the United States Constitution. But Biden’s also a process guy, heartily embracing the muscular, intimate, in-your-face tropes of presidential campaign politics. He never met a baby he wouldn’t kiss. Among other people. Which has been a problem.

One of Biden’s main campaign challenges will be to fully grasp how the rules of tactile, retail politics have changed in the #MeToo era. Just weeks before Biden announced, two credible accusers came forward to call Biden on instances of unwanted touching and physical familiarity. It’s a problem Biden has addressed in the short term, even though it’s certain to come up again in the primary season.

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With these too-recent allegations of touching overstep, it’s clear that Biden needs to learn the new tolerances, the new rules of touch and permission in 21st-century public space, the way culture, society and the rules of attraction themselves have changed in #MeToo time.

We also have to consider the totality of Biden’s public life, rather than snapshot a relative handful of problematic events. But wait — what a handful of events: Biden’s historically embittering performance interrogating Anita Hill at the Clarence Thomas Senate hearings in 1991; the problematic optics of his work to advance the controversial Crime Bill in 1994; an unfortunate stand against school busing (a “bankrupt concept,” he said) to achieve integration in his state of Delaware, in 1974.

Americans like to think leaders are capable of evolving, and Biden is no exception. There shouldn’t be any doubt that Biden has been doing that evolution, making the necessary changes in the last 30 or 40 years — learning, however clumsily, how to be more emotionally and morally inclusive — how to enhance the, uh, articulate speech of his own heart.  Barack Obama wouldn’t have picked him for a running mate in 2008 and 2012 if Biden hadn’t shown documentary evidence of that evolution, and, importantly now, the potential for more of it.

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YOUNGER, progressive-leaning Democrats and their supporters have been ready to make the 2020 election a zero-sum-game referendum, a hard, stark, which-side-are-you-on choice between the quicksilver open-mindedness of youth and the sclerotic mindsets of the elders — even, yes, the Democratic elders.

But there are millions of Democratic voters who take pride in showing up on Election Day, happily taking the place of younger and more indifferent Americans, who, with weight of historical evidence as proof, don’t vote as consistently or reliably as their older counterparts on either side of the partisan divide.

Those loyal older voters? They’re Joe Biden’s people, and they have been for years. Age is no more valid a reason to pass on a Biden candidacy — and the voters that candidacy will require — than gender or race would be a reason to dismiss anyone else in the 2020 campaign.

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And if the Democrats are serious about inclusion and demographic breadth, Biden shouldn’t expect side-eye from rank-and-file Dems. Biden exhibits a baseline retail empathy that transcends orchestrated appearances on the campaign stage. It is foundational to who and what he is.

Yes he’s messy, he can be a tad sloppy, he blows through social boundaries when he shouldn’t, he’s almost too effusive in a deeply standoffish era. At first (or even second) blush, at all the cosmetic levels, Biden looks like a man out of step with his country ... until you reckon with where we are today, all of us, in a country out of step with itself.

The Democrats previously fixated on the problems they’d have if Biden got in the 2020 race. They should focus more on the problems they’d have had if he didn’t get in. Problems of a field of contenders with comparatively little or no name recognition. Of little or no affinity with millions of blue-collar Democrats in the vital Rust Belt states. ...

And the problem of having no experience in the White House. Few things will be harder to ignore than a track record of success. Trump can dismiss Biden, and the Democratic field of candidates, as weak nanny-state socialist apologists; those same candidates might be tempted to try defining Biden as an overrated anachronism. What they have in common: both have to take him seriously. Biden’s got the gravitas of experience, and they know it, each for different reasons.

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TEAM TRUMP, for example, reluctantly recognizes that, by way of his time in the public sector, at a variety of levels, Biden thoroughly dismantles the emerging Republican binary identifier of the collective Democratic campaign. Trump-versus-the-socialists branding might work against Biden’s younger fellow candidates, whose styles and policy prescriptions are thought to bear the whiff of the radical.

It definitely won’t hurt him. Biden’s deep affinities for the union — that deeply American institution — and for the blue-collar workers who characterize its identity will frustrate the idea of painting him as a Molotov-throwing outsider. Biden’s spent far too long working within the machinery of the federal government, being a part of its operation at levels Trump can only dream of. He's spent enough time among his fellow Amtrak-riding capitalists for them to know who he is. Joe Biden’s the institutionalist William Barr wishes he was.
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