Participate in Our Democracy

All around the country, states, counties, cities, towns are marching along not only with the business of governing, but also with the business of choosing who will govern.  As we all know, states and local entities have varied and different election calendars and processes.  Chances are, therefore, there are ways every one of us can get directly involved in those caucuses, primaries, Town Halls, etc.  Check out https://www.ourstates.org/#ourstates — a great resource for fighting Trump’s agenda on the state and local level.

For example, here in Minnesota, it’s caucus time!  Thanks to an intrepid and engaged second year law student at Mitchell Hamline, Emily Flesch, here is everything you need to know. Emily says:

Don’t Forget: The Minneapolis DFL Caucus will take place on Tuesday, April 4th at 6:30 pm.

Don’t know where to caucus? Use the Minneapolis Caucus app to find your precinct and pre-register. http://mplscaucusapp.s3-website-us-east-1.amazonaws.com/

First caucus? This (profanely-named, but very helpful) website has a great breakdown of the caucus process for first-timers. http://www.giveashitmpls.com/wtf-is-a-caucus/

Why caucus? In 2013, only 2% of registered voters in Minneapolis showed up to caucus. By increasing voter turnout, we can make sure to elect candidates with strong progressive values and policies to lead the charge at the local level. Minneapolis will have elections for Mayor, City Council and Park Board in 2017.

Living in St. Paul and feeling left out? Plan ahead for the St. Paul caucus (organized by ward in late April) here: https://stpauldfl.wordpress.com/2017-caucus-and-convention-dates/.

There is a lot to do, people.  But, as the old song says, “Inch by inch, row by row, gonna make our garden grow.  Gonna mulch it deep and low, gonna make it fertile ground.”  (Pete Seeger really does it best, here: https://www.youtube.com/watch?v=u90qRE2F7CM; and boy do I miss him these days!)

We are the rake, we are the hoe, we are the mulch that makes today’s political climate and dire situation our piece of fertile ground.  And of course, the garden is our Democracy.  Keep digging and weeding my friends.

Dine and Dash?

It is really important that we all keep saying No to this administration.

Investigations are proceeding in Congress (sort of), and in the FBI (we believe). More and more townspeople — and even some henchmen — are calling this Emperor out on his nakedness. (Check out https://www.wsj.com/articles/a-presidents-credibility-1490138920?mod=trending_now.)  In fact, Republican strategist, Rick Wilson said on Lawrence O’Donnell’s show on Friday night, “the Emperor has been bucked naked from the very beginning.” http://www.msnbc.com/the-last-word/watch/lawrence-trump-presidency-effectively-over-after-repeal-failure-906197571595

And all of that is good — exciting, confusing, frustrating, worrisome, but good.  More information is always good.  But what to do with that information is not at all clear.  It is safe to say that the situation our country finds itself in — largely, I think, of our own making —   is unprecedented.  What happens next is not at all clear.  And neither is when. We could be stuck with this Administration for the full 2, if not 4 years.  And lots can happen in that time, even while the investigations are unfolding and the heads are starting to roll.

Which is why it is more important than ever that we keep paying attention to what Trump and his entourage have actually accomplished, and what they continue to do.  Even if they all get booted out of office eventually, a lot of damage can be done in the meantime.  It’s our job to prevent them from dining and dashing.

What to pay attention to, in particular? Things they do that can’t be easily undone.   Repealing and Replacing the ACA would have been such an action.  Thanks to the tireless organizing and activism of all of us, that potential seems, for the moment, to be on hold.

Appointing Gorsuch to the Supreme Court would be another such action, which is why I support the Democrat’s filibuster of the nomination.  Even if he is eventually confirmed, it is essential that Democrats — and fair-minded Republicans if they dare — hold Senate leadership accountable for their cynical refusal to maintain the norms of civility and good faith when governing.

But there are other actions the White House has taken, actions that fly under the radar, require no action on the part of the Legislative or Judicial Branches, and can cause potentially devastating, long term damage.  I am referring to the staffing choices Trump has made and continues to make throughout the Executive Branch. https://www.washingtonpost.com/blogs/plum-line/wp/2017/03/09/want-to-know-what-deconstruction-of-the-administrative-state-looks-like-look-at-trumps-staffing/?utm_term=.5c0e209b0e3a

As described initially in in Pro Publica, and more recently, in the Washington Post, “While President Trump has not moved to fill many jobs that require Senate confirmation, he has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency, from the Pentagon to the Department of Interior. Unlike appointees exposed to the scrutiny of the Senate, members of these so-calledbeachhead teams” have operated largely in the shadows, with the White House declining to publicly reveal their identities.” https://www.propublica.org/article/meet-hundreds-of-officials-trump-has-quietly-installed-across-government (emphasis added by me); and https://www.washingtonpost.com/powerpost/white-house-installs-political-aides-at-cabinet-agencies-to-be-trumps-eyes-and-ears/2017/03/19/68419f0e-08da-11e7-93dc-00f9bdd74ed1_story.html

Second, the State Department remains almost entirely empty — with major posts like Deputy Secretaries of State unfilled.  Trump’s budget proposal calls for a 24% cut in State Department funds.  Secretary of State Tillerson has said nothing about either condition, and seems perfectly content with his apparently diminished role, and the diminishing role of the Department generally. https://www.theatlantic.com/international/archive/2017/03/state-department-trump/517965/.

And these are two just off the top of my head.  All it takes is one look at Trump’s budget proposal to see just how the White House intends to reshape American government. http://www.usatoday.com/story/news/politics/2017/03/16/what-does-trump-budget-eliminate/99223182/. Says the Washington Post, the budget proposal “bears a striking resemblance to the Heritage Foundation’s “Blueprint for Balance: A Federal Budget for 2017,” complete with a list of deep spending cuts designed to scale back the size and scope of the federal government.” https://www.washingtonpost.com/news/wonk/wp/2017/03/27/trumps-budget-owes-a-huge-debt-to-this-right-wing-washington-think-tank/?utm_term=.7ce16e41c302.  The proposal has led author Neal Gabler to suggest that “Trump’s budget clearly was intended to hurt the most vulnerable, including those vulnerable supporters of his.” http://billmoyers.com/story/has-the-trump-budget-blown-republicans-cover/

Remember our discussions about Separation of Powers and Checks and Balances?  The Legislative, Executive and Judicial Branches have separate but co-equal power to govern; they each have their own “lanes” in which to operate.  As Peter Shane, a professor of constitutional law at Ohio State University, explained, “The idea is to give each branch enough authority to be effective in the discharge of its functions. But they are also given powers that make the other branches partially dependent on one another.” http://billmoyers.com/story/separation-powers-explained/

Bill Moyers reminds us that “This democratic design doesn’t work unless each branch employs its authority with respect for the equal authority of the other two branches. . . . The norms may change over history, but there is a set of informal understandings that shape the way that everyone interacts. . . . “Disregarding norms will take a toll over the long term,” agreed Anna Law, a political scientist at Brooklyn College, “particularly if the country becomes immunized and thinks this behavior is normal.” http://billmoyers.com/story/separation-powers-explained/

Drastically redesigning the Executive Branch in such a way that it affects how it functions in our Democracy undermines these norms, and threatens the healthy, long term functioning of our system of governance.  I am not talking about right v. left, conservative v. liberal.  Of course the Heritage Foundation would play a role in a Republican administration.  It is the combination of far right influence and lack of transparency that threatens our democracy.

It is essential that we not become immunized to the White House’s disregard of the roles and authority of the Legislative and Judicial Branches.  Keep asking questions, keep seeking answers, and keep paying attention!

 

It Was a Good Week

There is no question that this Administration is facing some pretty tough headwinds these days.  Indeed, veteran political analyst Lawrence O’Donnell declared on Friday night that the Trump presidency is effectively over. http://www.msnbc.com/the-last-word.

Whether you call that astute political analysis or wishful thinking, the withdrawal of the “TrumpCare” bill on Friday afternoon served as an appropriately weighty bookend to a week that began with FBI Director Jim Comey’s astonishing public statement that his agency was actively investigating ties between the Trump Administration and the Russian attack on our elections last year.

Trump and his folks have been hearing a lot of “no” lately:  no to the Muslim ban, no to the Wall, no to pushing the Russian hack under the rug, no to ushering Gorsuch in without a peep from Democrats, and now, incredibly, no to repealing Obamacare.

So yeah, it’s been a week.  A week at the end of which folks like all of us — who have been wringing our hands since the dark wee hours of November 9th — can deservedly give each other hugs and smiles on the side.  Because we know that the public hearing on the FBI investigation and the failure of “TrumpCare” and the promised Democratic filibuster of the Gorsuch nomination happened in part because of our persistence and patience and hard work.

Ever since those dark wee hours, dozens, hundreds, thousands, millions of us have banded together and fought for our country in exactly the way the Founders imagined we should:  by showing up in the streets, at the Capitol, in the State Houses, and at the offices of our elected officials.  By emailing and calling and writing letters and singing and dancing and sending pizzas.  We are a collection of loyal, optimistic, patriots who believe in the Democratic process and are not afraid to hold our leaders accountable to those ideals.

And so far, that seems to be working.

Yale Historian Timothy Snyder has been writing a lot lately about how to fight fascism in our midst.  He recently noted that “if everyone tilted against a windmill, the windmill would fall down, right? Party of the tragedy of Don Quixote is . . . he was also alone except for his faithful companion. We’re not really alone. There are millions and millions of people who are looking for that thing to do. Just by sheer math, if everyone does a little thing, it will make a difference. . . . And that little bit of engagement helps you realize that what you are doing has a kind of sense, even if it doesn’t immediately change the order.” http://billmoyers.com/story/dont-act-now-fascism-will-doorstep-says-yale-historian/

We all know what to do — pay attention, figure out what you’re passionate about and good at, do a little bit every day.  And we see that it works.  A week like this is proof positive of that.

But we also know that we need to keep doing it.  Last week was a good one.  What fresh hell will today bring?

Keep paying attention!

Domestic Violence and Terrorism: Lessons to Learn?

One of the things I love about my job is that I get to work with thoughtful, passionate and energized colleagues.  My colleague Professor Marie Failinger, who specializes in Constitutional Law, Law and Religion, and Gender and Law (http://mitchellhamline.edu/biographies/person/marie-failinger/) just sent me this email.  It bears sharing:

This morning as I contemplated the Trump budget, I realized that terrorism has achieved a success that mimics the domestic terror experienced every day by many women in households throughout the world.

One of the signs of domestic violence is that victims begin to change their behavior to avoid the violence they fear will occur—they stop going to school or to work as they understand that their independence challenges the power of their abuser, huddling in the place where their abuser expects them to be at all times.   So too, Americans and others around the world have stopped visiting places that they fear might be the next place of attack, huddling against the prospect of a terror attack.

Domestic violence victims begin to invest all of their emotional energy and resources in devising ways to forestall an attack, leaving little of themselves to care for their children or themselves, or contributing to the outside world.  So too, the Trump budget is proposing to divert billions now dedicated for the care of others, from the young to the disabled to the old, to build walls and missiles, hoping to forestall that next attack that may be coming.

Abusers of domestic violence victims slowly cut off all of the victims’ ties to those they care about, and those who can help them understand their increasing intellectual and emotional imprisonment.  It is such a slow and incessant process that those victims almost cannot remember what their lives were like, or what they hoped for, before the terror.

So too, the President’s men propose that we cut off ties with whole nations that we are afraid of, even nations that might possibly harbor those we are afraid of, making our national world smaller and smaller, a constriction so subtle that we will not notice how we have turned in on ourselves, how we have lost the vibrancy of the interdependent world we once knew.

We know about domestic violence that it will continue, and will continue to escalate, if there is no escape, no willingness by the victim to decide that her life can no longer be controlled by the abuser, that she will live the life she dreamed of rather than the life imposed on her.   The abuser’s power to control is addictive, and it must often be fed with increasing the levels of degradation and control of victims to continue to satisfy.

The addiction of terrorism will, too, grow as terrorists achieve the rush of power that fuels their activities, a rush that eclipses the original “noble” purpose that they claim to serve.   The idea that we can control terrorism by abiding by the terrorist’s imposed rules on the victim that cause her to fear, withdraw, give up her integrity and her self and focus on protection against the next attack, has already been disproven in the domestic violence context.

Perhaps we should pay attention to what we have learned.

Being on the Right Side of History

On Monday, the director of the FBI, James Comey, told the American people that the FBI was investigating not only evidence of Russian intrusion into our electoral process; but also the possible involvement of the Trump Campaign and Administration in the Russian hack.  This is a big deal.  The director of the FBI does not talk about ongoing investigations, but he talked about these, on the record and in public.  There is mounting direct and circumstantial evidence that members of Trump’s inner circle — if not the President himself — engaged in criminal, if not treasonous behavior.  And it appears that the investigative powers of the FBI have been unleashed to gather and analyse that evidence.

On Tuesday, the Senate began public hearings on the nomination of Judge Neil Gorsuch to fill the Supreme Court seat left vacant by death of Justice Antonin Scalia.  And today, Trump and House Speaker Paul Ryan are scrambling to corall House Republicans to vote for “Trumpcare” tomorrow.

Cue the sound of a needle scratching vinyl.  Wait, what? There is a criminal investigation at the door of the White House.  And it’s not an investigation that happens to be of the President and his associates; it’s an investigation about the very process that put them there — i.e. THE ELECTION.  If borne out, the allegations being investigated by the FBI may very well result in a finding that the entire election was illegitimate, and that Trump is really not the President.  At the very least, the legitimacy of this administration is in question.

But the Senate is holding hearings to appoint a new Supreme Court Justice; and the House is getting ready to vote on repealing and replacing Obamacare? This is not business as usual, my friends.  And the Republicans need to start getting on board with that reality.

In 1896, the Supreme Court of the United States ruled on the constitutionality of a Louisiana statute “providing for separate railway carriages for the white and colored races.”  In Plessy v. Ferguson, the Court ruled that, while the object of the Fourteenth Amendment was to create “absolute equality of the two races before the law,” such equality extended only to political and civil rights, like voting and serving on juries, and not to “social rights,” such as sitting in the railway car of one’s choice.  The Court noted that “if one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.”  It held the Louisiana statute constitutional, in that it provided for “equal but separate accommodations for the white and colored races.” https://supreme.justia.com/cases/federal/us/163/537/#annotation

Plessy‘s “equal but separate” framework ruled the day in American race relations until the landmark case of Brown v. Board of Education in 1954.  In that case, Chief Justice Earl Warren led the Court to overturn Plessy, holding that even if the tangible facilities were “equal” between the black and white schools, racial segregation in schools is “inherently unequal” and therefore violates the Constitution. Brown is now hailed as one of the great Supreme Court cases, reversing as it did over a century of legal and official segregation in the U.S; and Justice Warren seen as one of our greatest Chief Justices, in part for the role he played in Brown. https://supreme.justia.com/cases/federal/us/347/483/#annotation

During the spring of 2015, defendants and opponents of marriage equality for gay and lesbian Americans eagerly anticipated the Supreme Court’s ruling in the case of Obergefell v. Hodgeshttps://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.

We all knew that the Court was divided on most Constitutional questions — with the four liberal jurists likely to find that the Due Process and Equal Protection clauses do require marriage equality; and the four conservative jurists likely to find that those same Constitutional provisions do NOT require marriage equality. And we predicted that Justice Kennedy — a Reagan appointee, who nonetheless often votes with the liberal wing of the Court — would be the swing vote, and would probably write the opinion.

Those of us who are students of Constitutional and Supreme Court history kept Plessy and Brown close to the front of our minds; and we hoped that Justice Kennedy did too.   Obviously, there were there civil rights analogies between those two cases and the one before the Supreme Court in 2015.  But there was something else too.

People who place themselves intentionally in the public eye tend to care about their legacies — they tend to want to be remembered as having been on the right side of history.  No one wants to be the author of Plessy v. Ferguson; we would much rather be known for having written Brown, right?  Not only was Plessy overturned, and is therefore no longer good law; it also represented a narrowing of rights and liberties; rather than a broadening.  History rewards those who bend the moral arc of the universe toward justice.

A decision finding that the Constitution does not provide for marriage equality for all Americans, regardless of gender, would be judged, I believe, the way history has judged Plessy. The decision that Kennedy actually wrote in Obergefell I believe will be judged as Brown has been.  Kennedy’s legacy will be that of a Supreme Court justice who advanced civil rights for all Americans.  His decision placed him on the right side of history, even as it distanced him from his own cohort.

We are at another Brown and Obergefell moment, though this time in the Legislative Branch.  On Monday, we heard an incredible recitation of evidence — about the interference in our election, and the potential involvement of various Trump associates. http://schiff.house.gov/news/press-releases/intelligence-committee-ranking-member-schiff-opening-statement-during-hearing-on-russian-active-measures

We also heard the Republican reaction to that evidence — everything from castigating the “leakers” as the real criminals; to literally blaming Hillary Clinton. http://www.slate.com/articles/news_and_politics/politics/2017/03/republicans_don_t_want_to_find_out_what_happened_with_russia.html

No one knows how the various investigations are going to play out.  But both internationally and domestically, people are starting to doubt the authority and legitimacy of our entire government.  In a chilling column today in the New York Times, veteran journalist Tom Friedman says:

I had several young Arabs from around the region tell me that when America lets its own leader get away with lying, hiding information and smearing the press or a political opponent, it is taken as a license by all Middle Eastern leaders, or the leaders of Turkey or Russia, to do the exact same thing and say: “See, the American president does it, why shouldn’t we?” https://www.nytimes.com/2017/03/22/opinion/calling-on-a-few-good-men.html?_r=0

The Republicans in Congress need to decide what side of history they want to be on.  Do they want to be remembered as having put their heads in the sand, or worse, when confronted with evidence that, if true, describes violations of one of our most revered institutions — our free and fair democratic elections? Or do they want to put country before party for real and push for the truth to come out as quickly and thoroughly as possible?

James Comey might have already made that calculation, as evidenced by his appearance on the Hill on Monday.  The rest of them — Senator Richard Burr, the chair of the Senate Intelligence Committee; Representative Devon Nunes, the chair of the House Intelligence Committee are the two who immediately spring to mind, but there are others in positions of power — better get on board if they too want to be remembered as patriots who worked to bend the moral arc of the universe toward justice.

Access to Justice

I know a lot of programs are on the chopping block in Trump’s proposed budget; and I know that each one of those programs is vital to our ongoing existence as an educated, safe and healthy citizenry.  But I’m going to take a break from our regularly scheduled program of trying to figure out what the H-E-double hockey sticks is happening to our system of government to talk about one particular such program:  civil legal services. The budget Trump released last week calls for defunding the Legal Services Corporation (LSC) entirely.

First, some history. LSC was created in 1974 with broad bipartisan congressional sponsorship and was signed into law by President Nixon. The purpose of the new corporation was to insure that low-income Americans would have access to what the Declaration of Independence, the Constitution, and the mighty Pledge of Allegiance promise: “justice for all.” For more on the history of LSC, check out this piece from Mother Jones last month, “The GOP Plot to Destroy Legal Aid,” available at http://www.motherjones.com/politics/2011/02/gop-slashes-legal-aid-funds.

I’ll let the LSC press release take it from here:

“LSC works to ensure that low-income Americans receive the help they need in civil legal matters to ensure their safety, the stability of their families, and their livelihoods. As the late Justice Antonin Scalia emphasized in a speech at LSC’s 40th Anniversary conference in 2014, ‘this organization pursues the most fundamental of American ideals, and it pursues equal justice in those areas of life most important to the lives of our citizens.’
 
LSC is the backbone of the legal aid system in the United States and is particularly important in serving rural areas. Federal funding for civil legal services provides crucial assistance to hundreds of thousands of Americans each year. The 133 legal aid programs that LSC funds serve every county in every state and the territories. They help veterans secure the benefits they have earned, assist domestic violence victims in obtaining protection orders against abusers, protect seniors from consumer scams, and help disaster survivors get back on their feet. 
 
‘The Legal Services Corporation is as American as apple pie,’ said John Levi, Chairman of the LSC Board. ‘We promote what Thomas Jefferson described as ‘the most sacred of the duties of government,’ which is ‘to provide equal and impartial justice to all its citizens.’ And we do it at a cost that amounts to less than one one-hundredth of one percent of the federal budget.'” http://www.lsc.gov/media-center/press-releases/2017/legal-services-corporation-confident-bipartisan-support-congress

Yet Trump seems determined to turn his back on that Jeffersonian vision of a government that provides “equal and impartial justice to all its citizens” and use that one one-hundredth of one percent of the federal budget to, I don’t know? Build a wall? Deport more people? Send troops somewhere new?

Regardless, of what he’ll use the money for, let’s not lose sight of what he is after.  Remember our friends Dick the Butcher and Jack Cade, who believed that getting rid of the lawyers would make their takeover of the government that much easier? http://profgrose.com/lets-kill-all-the-lawyers/. Yeah.

Following almost five decades of bipartisan support for the Legal Services Corporation, today’s Senators and Representatives need to be educated about the role LSC has played and must continue to play in safeguarding democracy and individual rights.  Let your Federal elected officials know that you believe access to justice — and specifically to a lawyer you can afford — is part of what makes our democracy function.

And keep paying attention — we’ll get back to looking for Trump’s tax returns later this week.

“Let’s Kill All the Lawyers”

Once again, it looks like the Judicial Branch of our three part government is doing its job of holding the other two branches accountable for their actions under the Constitution.  For the fourth time now, Trump’s Muslim and Refugee ban has been struck down as unconstitutional by a federal judge. https://www.nytimes.com/2017/03/15/us/politics/trump-travel-ban.html?_r=0.

This ruling is certainly cause for celebration — both because the ban was a constitutional travesty, but also because it confirms the independence of the Judicial Branch even in matters of national security and Executive Orders.

After publishing Wednesday’s post about the lack of potential prosecutors for the Russia-Trump claims, http://profgrose.com/hello-is-there-a-prosecutor-in-the-house/, I ran into my colleague and friend, Mehmet Konar-Steenberg, who teaches Administrative Law and Constitutional Law, among other things.  So he knows about this stuff.

I asked what he thought about getting the Russia/Trump/Flynn etc. cases in front of a judge, given such an unwilling Justice Department.  After a brief discussion about “taxpayer standing” and “generalized grievances,” he concluded that the “police power” for these claims will have to come from Congress, in the form of pressure on the Attorney General to appoint a Special Counsel to investigate and prosecute. http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/how_congress_can_pressure_trump_to_appoint_a_special_counsel.html.

“But, but, this Congress . . . ” I stammered. “Yeah.” He said.  “We might have to wait two years.”

Two years? We need a judge to hear and rule on the Russia matters much sooner than that! If the Attorney General won’t appoint a U.S. attorney to pursue the matter, and Congress won’t pressure the White House to appoint a Special Counsel, can’t someone outside the government bring a claim against the Administration? Yes, but only if that person has been personally and specifically affected by the actions of Trump or Sessions or Flynn and their involvement with Russia. That is what is called “standing.”  Citizens cannot sue to enforce a constitutional provision if their only claim is that they have suffered an injury that is shared by all of us. That is called a “generalized grievance.”

What about a state? Can’t a state take Trump et al to court? Isn’t that what Washington and Minnesota and Hawaii have done in response to the Muslim and Refugee Bans? Yes, but those states had to show that specific individuals were negatively affected by the bans, and therefore the state itself was harmed.  That’s standing again.

Okay, so we need to find some individuals or a class of people who have been specifically harmed by the actions of Michael Flynn or Jeff Sessions or Trump himself. Who would those people be? What would be their specific (i.e. not generalized) grievance? Or what about a state? Has New York State, for example, been harmed by any of Trump’s dealings with the Russians? https://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html?_r=0

Or Florida? What about the real estate deal Trump made with the Russian oligarch who paid $50 million over what Trump had paid for the property at a time when land prices in the area were falling, not rising? Was the state of Florida harmed by that deal? Were other people in the area harmed by that deal? Is that enough for standing?http://miamiherald.typepad.com/nakedpolitics/2017/02/the-tale-of-trump-an-unwanted-mansion-and-a-russian-fertilizer-king.html

I asked Mehmet if he thought someone was working on these issues, looking for these potential plaintiffs with standing.  Is David Cole sitting in his windowless office at the ACLU with his head in his hands trying to figure it all out? Does he need some help? Do we need to get some law students on this? http://www.npr.org/2017/03/13/519985688/aclu-lawyer-sits-at-heart-of-legal-resistance-to-trump-agenda

Or is it really a matter of waiting until Congress gets enough of a backbone to force the issue itself? And if so, what can we do to put pressure on individual members to move things along?

Here’s why it is so important:  regardless of whether Trump et al are ever convicted or otherwise held accountable for their actions over the past year (and I fervently hope that they will be), he himself has shown contempt for the Judicial Branch in both his words and the actions of his Administration.  When one branch of government (in this case, the Executive Branch) attempts to undermine and discredit another branch of government (in this case, the Judicial Branch), our Democracy is threatened.  It’s as simple as that.  Our Democracy depends on all three Branches operating independently and in good faith.

 

In Shakespeare’s Henry VI, Dick the Butcher famously suggests, ‘The first thing we do, let’s kill all the lawyers.” (Part II, act IV, Scene II, Line 73.) While this sounds like a classic lawyer joke, it was actually an acknowledgement by Shakespeare of the crucial role lawyers play in maintaining stability in government. Dick the Butcher was a henchman of Jack Cade, who led a popular revolt against the throne in 1450.  Cade believed that if he could undermine law and order — by killing all the lawyers — he could become king.

Interesting, right? By avoiding the involvement of the Judicial Branch, do Trump and his inner circle believe they can undermine law and order without the pesky interference of lawyers? Well, if so, lawyers and lay-people alike, we have our work cut out for us.  Because the reality is, we’re not waiting two years.  Our Democracy won’t allow it.

Hello? Is there a Prosecutor in the House?

Our government has three parts: Executive Branch, Legislative Branch and Judicial Branch. They are separate and independent of one another. Our government also has a system of checks and balances by which each branch is held accountable for any violations of the U.S. Constitution – which is the governing document for the whole system. The Judicial Branch has the final say on what is or is not Constitutional. The Executive and Legislative Branches have the power to investigate, and the Executive Branch has the power to prosecute, claims that ultimately get decided by the Judicial Branch.

We have talked before about the legislative and the executive branches’ investigatory bodies. In Congress, either the house or senate can convene hearings on any topic, and conduct any fact-finding they wish. Remember the Select Committee of Presidential Campaign Activities – also known as the Watergate Committee — in 1972; or the Joint Committee to Investigate Covert Arms Transactions with Iran and the Nicaraguan Opposition in 1987? Those are examples of Congress using its investigative powers to hold the Executive Branch accountable for its actions.

In the current situation, either or both chamber could call for a select or special or independent or joint committee to investigate this Executive Branch’s activities.  Such a committee could — certainly should — include the power to subpoena the Executive Branch for any material that would aid in the investigation.  Off the top of my head, I’m thinking Trump’s full tax returns going back to at least 2008.  But I know that’s crazy talk.

In the Executive Branch, investigatory power rests with the Justice Department, which includes the FBI.  We don’t know much about any of those investigations, except for who is running them —  the head of the FBI is James Comey and the head of the Justice Department is Jeff Sessions.  Presumably those investigative bodies too would have the authority to subpoena documents from the White House that would aid in their investigations.  Presumably too, Trump’s tax returns would be of interest.  But again, crazy talk.

Whether either branch is doing adequate investigation into the myriad claims emerging from and in reaction to the Trump Administration, however, let’s consider the question of prosecution. Because that is where things get really interesting. In U.S. v. Nixon, the Supreme Court ruled that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” U.S. v. Nixon, 418 U.S. 683 (1974). No matter who does the investigating, therefore, the Executive Branch is the only one with the power to prosecute.

The highest ranked prosecutor in the land is the Attorney General (our friend, Jeff Sessions). Below the Attorney General is Deputy Attorney General (Dana Boente is acting Deputy A.G., since Trump fired Sally Yates for saying the Muslim ban was unconstitutional). Below the Deputy A.G. are the Solicitor General, who represents the government in the Supreme Court, and the Associate A.G., who oversees various agencies and programs and divisions of the Justice Department. Check out this handy chart. https://www.justice.gov/agencies/chart.

The folks who actually prosecute crimes for the Federal Government are the U.S. Attorneys. The President appoints a U.S. Attorney for each federal district in the country.  The U.S. Attorneys answer to the Attorney General, as the head of the Justice Department. According to the Justice Department web site, “The United States Attorney is the chief federal law enforcement officer in their district and is also involved in civil litigation where the United States is a party.” https://www.justice.gov/usao/about-offices-united-states-attorneys.

So we have investigative bodies who may or may not be doing their work to uncover the mess that has befallen our country. But regardless of what they uncover, these investigative bodies cannot bring a case against anyone in or connected to the Administration – or indeed anyone at all – unless someone in the Department of Justice assigns a U.S. Attorney to prosecute the matter.

That isn’t normally a problem because the Department of Justice has long operated independently from the White House, even though it is nominally part of the Executive Branch. Indeed, the Justice Department’s independence from the President is one of its hallmarks.  And one of the hallmarks of a functioning government. http://www.latimes.com/nation/nationnow/la-na-justice-department-white-house-20161123-story.html.

But it is a problem now.  Let’s take the Michael Flynn situation. The decision whether or not to pursue a case against Flynn — and ultimately to prosecute him for lying to the FBI, among other things — rests with the country’s chief prosecutor:  the Attorney General, Jeff Sessions.  Sessions himself is compromised in making that call — Sessions and Flynn campaigned for Trump together for months, and worked together during the transition. Sessions has, in fact, had to recuse himself from any investigations involving the Russian hacking. http://www.salon.com/2017/02/16/can-jeff-sessions-be-trusted-to-investigate-flynn-trump-and-the-russians-the-answer-should-be-obvious/

On top of that conflict of interest, though, the White House itself has weighed in on the question of whether to prosecute Flynn. Reports Vanity Fair, “Trump has made his views on the matter quite clear. During a press conference on Thursday, Trump defended Flynn as a ‘fine person’ and strongly suggested that he shouldn’t face prosecution. ‘What he did wasn’t wrong.'” http://www.vanityfair.com/news/2017/02/mike-flynn-fbi

But it’s not just the Flynn prosecution (or lack thereof).  As we all know by now, last Friday, Trump asked for the resignation of the 46 remaining Obama-appointed U.S. Attorneys, effective immediately. While bringing in your own people is certainly one of the perks of winning, the way in which this particular purge unfolded is unprecedented. The U.S. Attorneys were told on Friday afternoon to pack up their desks and turn in their keys by midnight. http://www.msnbc.com/rachel-maddow-show/trump-sparks-new-controversy-us-attorney-dismissals .

There was no time to close their cases, pass files on to successors, or otherwise make a smooth transition to new personnel — if there even are new personnel – which seems unlikely given that so many Justice Department jobs remain unfilled.  Indeed, the White House has not nominated a single replacement for the now empty posts. http://www.msnbc.com/rachel-maddow-show/trump-sparks-new-controversy-us-attorney-dismissals

The most high profile dismissal among the 46 is that of Preet Bharara, the U.S. Attorney for the Southern District of New York. His dismissal is particularly noteworthy for two reasons:  first, he was asked in November, first by Trump and then by Sessions, to stay on in his post.  He readily accepted. http://www.economist.com/blogs/democracyinamerica/2017/03/you-re-fired. So why the sudden about-face now?

The second reason his dismissal is noteworthy is his jurisdiction.  As chief prosecutor for the Southern District of New York, Bharara pursued Wall Street with a vengeance.  In fact, at the time of his firing, he was actively pursuing a case against Deutsche Bank, the largest known lender to Trump’s businesses and a firm that has worked extensively with Trump’s family.  Bharara was investigating the Bank over allegations that it had helped wealthy Russians get money out of Russia by converting rubles into Western currency.  http://www.pbs.org/newshour/rundown/u-s-attorney-bharara-says-fired-not-resigning/.

Not only that, the top Democrat on the House Judiciary Committee, Representative John Conyers (MI), suggests that Bharara could have been looking into “a range of potential improper activity emanating from Trump Tower and the Trump campaign, as well as entities with financial ties to the president or the Trump organisation.” http://www.pbs.org/newshour/rundown/u-s-attorney-bharara-says-fired-not-resigning/.

So let’s be clear:  the top prosecutor in the country has discretion to decide what cases to bring against whom. He has had to recuse himself from the Russia investigation because of his own conflicts of interest.  But even if his acting Deputy, Mr. Boente, decided to pursue the Flynn case, or any other aspects of the Russia-Trump connection, the Attorney General and President have dismissed the very attorneys who might be in a position to pursue and ultimately prosecute any claims against the Administration.

Remember Rachel Maddow’s warning that “it looks like we’re going to have to do this ourselves.”?http://www.msnbc.com/rachel-maddow-show#!#full-episodes. She was talking about doing the investigating to figure out what is happening to our country.  But it’s becoming pretty clear that even as we uncover more, leak by leak and page by page, our job will not be over any time soon.  Looks like we’re also going to have to figure out how to get these cases prosecuted.

Who’s In Charge Around Here?

I binge watched three episodes of Rachel Maddow on Saturday — catching up on shows I missed during the week.   I had planned to skim through them just to pick up her take on recent events.  But instead, I sat riveted, glued to the screen as this spy thriller of a story unfolds before our very eyes.  I felt disappointed and dazed after the end of Friday’s episode.  And also nauseated and horrified. Because of course, this isn’t a thrilling spy novel — it is something real that not only happened, but is happening to our country.

Tempted as I am to burrow more deeply into the twists and turns of the Russian plot and how it was/is being carried out, I am worrying about something else — not unrelated, but slightly different.  And I’m not talking about the investigations or lack thereof; or the recusals, or lack thereof; or the cover-ups.  I’m talking about something that at least on its face has nothing whatsoever to do with the hacking.  Namely, what is actually happening in our government right now.

Let’s take a look at two of the Administration’s recent staffing and personnel choices (I’m not even talking about the latest purge of U.S. Attorneys):

First, as described in Pro Publica, “While President Trump has not moved to fill many jobs that require Senate confirmation, he has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency, from the Pentagon to the Department of Interior. Unlike appointees exposed to the scrutiny of the Senate, members of these so-calledbeachhead teams” have operated largely in the shadows, with the White House declining to publicly reveal their identities.” https://www.propublica.org/article/meet-hundreds-of-officials-trump-has-quietly-installed-across-government (emphasis added by me)

Second, the State Department remains almost entirely empty — with major posts like Deputy Secretaries of State unfilled.  Trump’s budget proposal calls for a 37% cut in State Department funds.  Secretary of State Tillerson has said nothing about either condition, and seems perfectly content with his apparently diminished role, and the diminishing role of the Department generally.  As summed up in Vox recently,

  1. “Tillerson’s State Department is so poorly staffed (he doesn’t yet have a deputy or a permanent spokesperson) and out of the loop on high-level decision-making that its press secretary wasn’t even informed of a visit by the top diplomat from one of Washington’s most important strategic partners.
  2. Foreign governments appear to be recognizing State’s weakness in the Trump administration and are bypassing America’s trained diplomatic corps. Instead, they’re speaking directly with White House aides whom they see as wielding real influence over the president. That includes ones like Jared Kushner — Trump’s son-in-law, who has no experience in international affairs or diplomacy.” http://www.vox.com/world/2017/3/10/14882684/state-department-mexico-briefing

The Trump Administration is consolidating power, there is no way to deny or ignore that reality.  Decisions are made by a few people, most of whom have not received public scrutiny, let alone Senate confirmation.  We know the names of some of these people — Bannon, Kushner, Miller, Sessions, Comey — but most we do not know.   This is not how a functional democracy runs.  If we don’t have a way to hold power accountable, we no longer have a system of checks and balances.  And then it won’t matter who hacked whom and who knew what when.

Bannon and Putin — to name a couple of possible Geppettos to Trump’s Pinocchio — are in it for the long con.  Even if the hacking were discovered, and even if investigations did take place, Trump would still be president, for at least a little while.  A lot of long term, structural, damage can be done in a short time.

Keep paying attention.

We Have to Do it Ourselves

Here is what we know – i.e., it has been publicly acknowledged by those involved and/or it has been reported on by reputable journalists relying on multiple layers of corroboration:

The Russian government committed a series of cyber-attacks against our country by spreading negative fake news stories about Clinton and positive fake news stories about Trump, all designed to interfere with our election and get Trump elected. https://www.dni.gov/index.php/newsroom/press-releases/215-press-releases-2016/1423-joint-dhs-odni-election-security-statement.

Many senior members of Trump’s campaign met with at least one senior member of the Russian government while these attacks were underway, and after they had been made public. Those who met with the Russian Ambassador to the United States, Sergey Kislyak, include the current Attorney General, Jeff Sessions, recently resigned National Security Adviser, Michael Flynn, and senior adviser and Trump son-in-law, Jared Kushner.  Senior foreign policy advisers, J.D. Gordon and Carter Paige also met with the Ambassador, during the Republican National Convention.  (Check out Representative Swalwell’s (D-Calif) excellent description of these ties here:  https://swalwell.house.gov/issues/russia-trump-his-administration-s-ties)

Christopher Steele, a former officer of the British Intelligence service, MI6, compiled a secret dossier that contains, among other things, specific and concrete evidence of the hacking done by Russia. The dossier also contains specific and concrete evidence of, at a minimum, the Trump campaign’s awareness of the hacking, and possibly also their collusion in it.  https://www.documentcloud.org/documents/3259984-Trump-Intelligence-Allegations.html

Although the entire dossier has not been corroborated, many of its specific claims about the cyber-attacks and about meetings and interactions between the Trump campaign and Russian officials have been corroborated by U.S. intelligence agencies, as reported on by news outlets like CNN (http://www.cnn.com/2017/02/10/politics/russia-dossier-update/), the New Yorker (http://www.newyorker.com/magazine/2017/03/06/trump-putin-and-the-new-cold-war), and the Rachel Maddow Show (http://www.msnbc.com/rachel-maddow-show#!#full-episodes.).

So there is all this evidence floating around, from all these sources.  Is any of it true? Did Russia really hack our election?  Did the Trump campaign help? Who was the mastermind? Did Trump himself direct his aides to help Russia rig our election? Did he stand idly by while they helped? Did they act without any involvement or even knowledge by him?  What was the motive for the hacking? Did it initiate with Russia or with the Trump campaign? What does Trump now owe Russia? Who else knows something?

These are important questions, the answers to which might lead to the conclusion that the Trump campaign worked with a hostile foreign government to undermine — to put it mildly — our democracy.  So what is being done to get those questions answered?  Well, let’s see:

Michael Flynn has had to resign as National Security Advisor because he lied to the FBI and to congress about his contacts with the Russian Ambassador. And Attorney General Sessions has had to recuse himself from any investigations into the Russian hacking because he also lied to Congress about his contacts with the Russian Ambassador.

Reince Priebus, the President’s Chief of Staff, communicated with the FBI about how to conduct and talk to the media about the investigation into the hacking.

James Comey, the director of the FBI, was called to a closed door session of the House Intelligence Committee, where he refused to answer questions about the FBI’s investigation into the hacking.

Earlier this week, Christopher Steele himself resurfaced suddenly and unexpectedly.  He had disappeared back in January when the dossier became public and his name came to light as the person who had compiled it.  But now, he’s back at work at his London investigation firm, and apparently not in hiding. http://time.com/4693673/christopher-steele-donald-trump-dossier-speaks-out/. That seems very promising, doesn’t it — if the person who actually compiled the now-partially corroborated dossier is alive and available and able to talk about it?

But don’t get too excited.  Representative Adam Schiff (D-Calif), the top Democrat on the House Intelligence Committee would very much like to call Mr. Steele to testify before his committee.  https://www.usnews.com/news/national-news/articles/2017-03-08/top-intelligence-committee-democrat-wants-former-british-spy-who-wrote-trump-dossier-to-testify.  But  Intelligence Committee Chairman Devin Nunes, (R-Calif) released the names of witnesses the Committee plans to call, and Mr. Steele’s name was not among them.  http://www.cnn.com/2017/03/07/politics/house-intelligence-committee-schedules-russia-hearing-march-20/

We have solid evidence of acts that could amount to treason, and we have the opportunity to learn a great deal more about these acts if someone in power would just ask the questions.  But let’s look at who’s in power:  the Department of Justice is controlled by Attorney General, Jeff Sessions; the FBI is controlled by James Comey; the House Intelligence Committee is controlled by Rep. Nunes, who is described as “Donald Trump’s most important friend in congress.” http://www.msnbc.com/rachel-maddow-show/donald-trumps-most-important-friend-congress; and the Senate Intelligence Committee is controlled by Senator Richard Burr (R-N.C.), who stated during the campaign that there was no “separation” between him and Donald Trump. He has also bragged about getting the FBI to investigate Hillary Clinton’s emails. http://www.politico.com/story/2017/02/richard-burr-donald-trump-north-carolina-235319

Rachel Maddow noted wryly on her show the other night:  “It’s a DOJ controlled by a Trump campaign official or it’s two Intelligence Committees, each controlled by a Trump campaign official.  Support your free press.  It is really starting to feel like we’re going to have to do this ourselves.”  http://www.msnbc.com/rachel-maddow-show#!#full-episodes (@ 24:00).

Yes, friends.  We are going to have to do it ourselves.  Pay attention.