Im-Politic: Deconstructing Obstruction of Justice

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Constitution, Dianne Feinstein, FBI, high crimes and misdemeanors, Hillary Clinton, Im-Politic, impeachment, James Comey, James Lankford, James Risch, Marco Rubio, Michael J. Flynn, obstruction of justice, removal, Russiagate, Senate Select Committee on Intelligence, Trump

There have been so many important economic and foreign policy stories to write about these days, and certainly RealityChek will be covering lots of them. But this of course is #ComeyDay, as they’ve said on Twitter, and I thought the most useful item I could post today would focus on one of the central questions raised by the Russiagate controversy: Has President Trump committed an impeachable offense?

Before beginning, though, it’s vital to recognize that although the Constitution provides for impeachment (and removal – they’re two separate matters) of government officials, including the president, on the grounds of “high crimes and misdemeanors,” the Framers never defined this term. Not surprisingly, legal specialists have made any number of convincing arguments for infusing these words with some specific content. But at least based on this Congressional Research Service survey, the consensus seems to be that “high crimes etc” mean anything that a majority of the House of Representatives (which impeaches) and two-thirds of the Senate (which conducts the trial, and whose guilty verdict on any specific charges, or “articles” results in removal from office) believe it means.

So legally and Constitutionally speaking, the debate on whether the president is guilty of the specific crime of obstruction of justice is beside the point. Politically speaking, though, finding this kind of actual violation of criminal law would make impeachment and removal votes much easier to justify for lawmakers when they face the electorate.

The main evidence so far in favor of an obstruction charge consists of two claims made by Comey under oath in his opening statement today to the Senate Select Committee on Intelligence. First, according to the former FBI Director, in a one-on-one February 14 Oval Office meeting, Mr. Trump made the following comments about the bureau’s probe of former White House national security adviser Michael J. Flynn:

“‘He is a good guy and has been through a lot.’” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’”

Second, in phone calls with the president on March 30 and April 11, Comey said Mr. Trump referred to a “cloud” that was undermining presidency’s agenda that he wanted Comey’s help in lifting. In the first phone call, according to Comey,

“the President called me at the FBI. He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.”

Comey added that President Trump “finished by stressing “the cloud” that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated.”

In the April 11 call, Comey stated that Mr. Trump

“asked what I had done about his request that I ‘get out’ that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that ‘the cloud’ was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.”

It seems clear, therefore, that the “cloud” references concerned the president’s belief that Comey should have informed the public that he personally was not being investigated by the FBI for anything. That is, it had nothing to do with the Russiagate investigation or the separate Flynn investigation. And responding to separate questions from California Democrat Dianne Feinstein and Florida Republican Marco Rubio, Comey explicitly agreed.

The question still remains, however, of whether Mr. Trump’s Flynn comments constitute obstruction. At this point, definitive answers aren’t possible. For one, the president’s personal attorney has denied Comey’s claim that any such Flynn-related statements were made at all. For another, as all the legal community seems to agree, obstruction of justice is a complicated act consisting of numerous criteria that need to be met. But what’s certainly noteworthy for the time being is what Comey himself has said about the matter – and what he hasn’t said.

It’s important to observe that Comey at one point did indeed tell the Senate panel, that although he found the Flynn remarks “very disturbing, very concerning,” he also said

“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct….that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense. “

Considering Comey’s willingness to expound at great length last July on Democratic presidential candidate Hillary Clinton’s innocence of the charge of criminally mishandling classified information on her personal server, that sounds coy at very best.

In addition, Comey was given repeated chances to characterize the Flynn statements as obstruction. For instance, Idaho Republican James Risch asked him whether the president “directed” or “ordered” him to “let it go.” Comey responded, respectively, “Not in his words, no” and “those words were not an order.”

Comey then added that “I took it as a direction” because “this is a president of the United States with me alone saying I hope this. I took it as, this is what he wants me to do. I didn’t obey that, but that’s the way I took it.”

Also pertinent: In response to a question from Rubio, Comey said that President Trump never asked him to “let go” the Flynn investigation after the February 14 meeting. Moreover, Comey told Republican James Lankford of Oklahoma that neither any White House nor Justice Department staffers, nor the heads of any of the intelligence agencies ever mentioned to him dropping the Flynn probe.

As Lankford concluded: “The key aspect here is if this seems to be something the president is trying to get you to drop it, it seems like a light touch to drop it, to bring it up at that point, the day after he had just fired Flynn, to come back here and say, I hope we can let this go, then it never reappears again.”

Keeping in mind that other shoes could always drop, that’s an observation I hope will remain front and center as the Russiagate probes – and press coverage – drag on.

Im-Politic: Is the Open Borders Crowd Signaling ‘Criminals First’ Priorities?

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border security, Congress, Constitution, crime, Democrats, Department of Homeland Security, equal protection, illegal immigrants, Im-Politic, immigrants, Immigration, Joint Address, Open Borders, Trump, VOICE

Democrats in Congress, many of whom apparently never read the Obamacare legislation before they passed it, seem to be similarly out to lunch on another critical issue – illegal immigration. That’s a charitable explanation for why they so conspicuously groaned last night during the president’s address to lawmakers when Mr. Trump spoke of directing “the Department of Homeland Security to create an office to serve American victims. The office is called VOICE — Victims of Immigration Crime Engagement. We are providing a voice to those who have been ignored by our media and silenced by special interests.”

The concern both in and out of Congress is that the administration plans to spotlight crimes committed by all non-native born Americans – and maybe even turn these misdeeds into law enforcement priorities. That would of course be completely unacceptable, since the Constitution grants everyone on American territory, including illegal immigrants, equal protection under the law.

But the Trump-haters on Capitol Hill, and elsewhere, evidently stopped listening at that point. For immediately afterwards, President Trump made clear that he was talking about crimes committed by illegal aliens. The next four paragraphs of his speech singled out family members of Americans killed by immigrants who were not only undocumented (as the favored euphemism calls them) but who had major prior criminal records.     

Even worse, the boo-birds have ignored the statement of administration policy that makes the focus on criminal illegal aliens crystal clear. Which was issued five weeks ago. In a January 25 Executive Order, Mr. Trump has mandated creation of “an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.”

In other words, if you’re not a criminal who’s in the country illegally (and therefore “removable”), you have nothing to fear from this new initiative. Conversely, if you’re a criminal but you’re a legal resident – native-born or not – you have nothing to fear, either. You don’t even have a problem if you’re an illegal immigrant but not a criminal.  Special treatment is to be reserved only for criminals whose illegal presence in the United States clearly signals a shameful failure to enforce federal immigration law with even minimal concern for the well-being not only of citizens, but of all law-abiding residents, including the foreign-born.         

Before his speech, the president told reporters, “The time is right for an immigration bill if both sides are willing to compromise.” That will be hard to believe if the Open Borders crowd keeps categorically – and even self-righteously — insisting on what looks like a Criminals First immigration policy.    

Following Up: That Latest (Disgraceful) Court Decision on Trump’s Immigration Order

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Congress, Constitution, due process, Elena Kagan, executive order, Following Up, Immigration, Muslim ban, national security, presidency, refugees, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, Supreme Court, terrorism, travel ban, Trump, U.S. Court of Appeals Ninth Circuit, visas, Washington State

The decision last Thursday by a federal appeals court to uphold blockage of President Trump’s recent Executive Order on immigration and refugee policy exemplified the challenge I noted when I started blogging here at RealityChek: “So much nonsense out there, so little time….” Just as I often struggle each day to decide which outrage in the public policy world against fact-based, adult thinking should be addressed, I’ve struggled to decide which sad excuses for a legal argument made by three appellate judges in the Ninth Circuit to focus on in this post.

But two groups of contentions stand out as especially dangerous and disingenuous. Both decisively influenced the judges’ determination to keep the Executive Order from being enforced on procedural grounds pending a further judicial decision on the merits of the case.

The first is the panel’s unanimous ruling on how much due process to protect Constitutionally guaranteed rights is legally deserved by foreigners outside America’s borders who have not been awarded legal resident status. That is, how many boxes do the relevant U.S. officials need to check in order to reach a legally valid decision to deny a refugee applicant admission? In these refugee cases, the Supreme Court has held that the only such obligation is providing a “facially legitimate and bona fide” reason for a judgment reached by a State Department consular officer.

The Ninth Circuit panel, however, claims that this standard (and the already established appeals process) is insufficient when refugee applicants “have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” And it has ruled that the Trump Executive Order failed to meet this standard.

Even leaving aside the convincing argument that existing law denies judges jurisdiction over immigration policy (which the panel rejected in a “preliminary” sense), just consider the precedent this conclusion would set. It would mean that unless a terrorist connection could be proved conclusively, a suspected ISIS fighter or adherent who applies for refugee or other immigration status from Iraq or Yemen or wherever could be entitled to enter the United States if he or she was a relative of a non-citizen legal U.S. resident. What would conclusive proof be? Heaven knows, since the case referenced by the Ninth Circuit panel only alleged that the rejection in question wasn’t sufficiently “detailed.” And who would decide how much detail is enough? Perhaps a U.S. court? Perhaps after looking over intelligence findings that are often unavoidably judgment calls? It’s hard to imagine a better way to start turning making a sieve of screening procedures vital in an age of transnational terrorism for protecting national security.

Think I’m kidding? Here are the actual circumstances of the immigration denial decision that the Ninth Circuit apparently finds so objectionable (and which was upheld in 2014 by the Supreme Court): An Afghan-born legal resident of the United States petitioned for her husband’s entry from Afghanistan, and asserted he deserved “priority (and judicially reviewable) status” like other “immediate relatives.”

And the basis for her claim that this application was unjustly turned down – i.e., that her petition was denied due process because the rationale wasn’t sufficiently detailed? A consular official told her husband that he would be kept out of America because by his own admission, he had been an official in Afghanistan’s former Taliban government, and that U.S. law aims to exclude foreigners who have engaged in “terrorist activities” – a description that certainly applies to the Taliban.

It gets better: The federal court that did decide that a former admitted Taliban official’s application deserved (unspecified) further consideration, which resulted in the case being appealed to the Supreme Court? It was the Ninth Circuit. And four Supreme Court Justices (Stephen Breyer, who wrote a dissent, and Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who joined with him) agreed.

The second especially disturbing aspect of the appellate court’s decision was the panel’s claim that it had, in accordance with “an uncontroversial principle that is well-grounded in our jurisprudence,” paid “substantial deference to the immigration and national security policy determinations of the political branches” – that is, the presidency and the Congress. The only such deference apparent in this decision is at the level of brazen tokenism.

Specifically, the three judges claimed to agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order.” But they also stated that the judiciary has a responsibility to balance this interest with other legitimate considerations, namely the public’s interest in “free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

The “freedom from discrimination” threat of course pertains to repeated charges – also made in court by plaintiff Washington State – that the Executive Order’s refugee provisions create a “Muslim ban.” The Order’s failure to include most countries with Muslim majorities renders that charge inexplicable. Moreover, as my previous post observed, religious persecution is one of the forms of persecution that must be demonstrated by successful refugee applicants. But what’s simply jaw-dropping is the nature of the specific balancing act the appellate court identified involving national security concerns on the one hand, and freedom of travel and keeping families together on the other.

Because here’s what the three-judge panel asserted could nullify national security judgments made by the president and Congress (in the 2015 law identifying the seven countries subjected to the travel ban as “countries of concern” requiring special screening). And P.S.: It’s also what the judges agreed (in line with claims by Washington State and Minnesota) constituted enough “damage” to the State’s “economy and public universities” even to rise to the level of adjudicability in the context of immigration policy:

>”two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States”:

>”three prospective employees from countries covered by the Executive Order for visas [for whom the University of Washington] had made plans [to arrive] beginning in February 2017”;

>”two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington”; and

>”an unspecified number of “students and faculty at Minnesota’s public universities [who] were similarly restricted from traveling for academic and personal reasons.”

If this is a balancing act, it’s one with a heavy Ninth Circuit thumb giving critical mass to laughably marginal considerations – even assuming that any of these temporarily inconvenienced students and teachers have any preexisting right to crossing American borders.

It’s true that lawyers and judges often insist that “no issue is decided finally until it is decided correctly.” But the Trump Executive Order’s treatment so far in the judiciary, and the current make-up of the Supreme Court, tell me that national security could suffer greatly until this result is finally reached.

Im-Politic: Of Course Trump’s Immigration Order is Legal

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Charles Dickens, Constitution, executive order, Im-Politic, Immigration, Immigration Act of 1924, Immigration Act of 1965, Middle East, Muslims, refugees, terrorism, travel ban, Trump

Charles Dickens famously observed that the law can be an “ass” and an “idiot.” A slightly different conclusion is warranted from the blowup over the legality and Constitutionality of the ban imposed by President Trump via Executive Order (EO) on travel from seven Middle Eastern countries The real asses and idiots are those who are turning logical and common-sensical cartwheels trying to show that the courts should overturn the ban – along with the suspension of refugee admissions.

The proceedings generated so far by the Trump EO have revolved mainly around procedural questions – like whether states like Washington are entitled to bring suits challenging actions in areas like immigration that are federal government preserves, and whether the administration should have taken matters to an appellate court rather than staying in the district court that issued the restraining order blocking implementation of the ban. And these questions are all important. (This New York Times analysis of the oral arguments before the appellate court yesterday, however, could not make clearer the judges’ interest in substantive issues like whether the countries in question really do pose threats to U.S. national security).

Still, it’s altogether possible that the fate of the ban – and future such measures – ultimately will turn on an apparent contradiction in U.S. immigration law. On the one hand, the 1952 modification of the 1924 Immigration Act holds that:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

On the other hand, a 1965 amendment to the law prohibits barring immigration on the basis of race, sex, nationality or place of birth. So that would seem to prevent the Trump administration from blocking entry by inhabitants of designated countries.

But resolving the conflict requires nothing more than engaging in thought. For obviously, the aim of the 1965 amendment was to remove the stain of racial, religious, and other forms of prejudice from American immigration policy. Until then, inflows had been governed by a series of quotas based on the national origins of the U.S. population as of 1890 – which of course was overwhelmingly from the white northern and western European countries. For good measure, immigration from Asia was completely eliminated.

Just as obviously, the Trump EO in question has nothing to do with such irrational – and intrinsically noxious – discrimination. It’s based on a national security judgment – the seven countries affected by the (temporary) travel ban have been classified by the previous administration and by Congress as lands where a “foreign terrorist organization has a significant presence,” where terrorists enjoy a “safe haven,” or where the government “has repeatedly provided support of acts of international terrorism.”

The seven countries singled out are Muslim majority countries – one reason evidently leading opponents to describe the ban as a “Muslim ban.” But the travel ban’s strikingly limited purview easily debunks that claim. As many of these opponents have also noted, travel from dozens of Muslim majority countries is completely unaffected. It’s true that these (massive) exceptions may make the EO either inconsistent or incompetent. Or both. But judges are not supposed to rule on such grounds, especially where foreign policy is concerned. The large number of un-banned Muslim majority countries is also plainly much more important in determining the administration’s intent than statements made by the president, or by his advisers, during his campaign for the White House.

Moreover, Mr. Trump’s immigration critics seem to have forgotten that, when refugee admissions are resumed (after 120 days), the relevant U.S. law will not only permit but require an explicitly religious test in part. For persecution based on religion is one of the forms of persecution refugee applicants must demonstrate to gain entry.

Finally, as noted in the TIME article linked above, even the 1965 immigration policy change contains a provision that could justify the Trump administration measures. It “allows the president to deny anybody entry to the U.S. under special circumstances.” Sure, anyone can question whether current circumstances qualify. And Congress has every right to propose and pass amendments that would describe these circumstances more precisely. But for the time being, they are the law of the land, and by definition the President has used his judgment to craft a response. If the judiciary can challenge judgments like this willy nilly, why on earth do we bother holding elections for president?

Im-Politic: Why Sally Yates is a Grandstander, Not an Elliot Richardson

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Archibald Cox, Attorney General, Constitution, Elliot L. Richardson, EO, executive order, Im-Politic, Immigration, Jack Goldsmith, Justice Department, refugees, Richard M. Nixon, Sally Yates, Saturday Night Massacre, Special Prosecutor, Trump, Watergate, William D. Ruckelshaus

Former Acting Attorney General Sally Yates’ memo ordering Justice Department staff not to enforce President Trump’s Executive Order (EO) on immigration set off my baloney-detection meter well before I was halfway into it. The same alarm sounded due to claims that her subsequent firing bore any resemblance whatever to the infamous “Saturday Night Massacre” during Watergate days. And here’s why your deep skepticism about these developments should have been activated, too.

First, let’s reveal right off the bat my professional legal qualifications to comment on these matters: None. I don’t even play a lawyer on TV. But I’ve been around politics and policy long enough, and know enough history, to recognize when a public official is acting constructively and out of principle, or simply grandstanding.

One of the biggest tests is the decision to work through proper channels within the system or to go public quickly. Yates clearly flunked it. That is, there’s no evidence that in her role as one of the U.S. government’s chief sources of legal advice, she made any effort to inform the president of her opinion about the EO’s conformity with American law. Instead, she simply directed Justice Department personnel not to “present arguments in defense of the order.”

Also fishy about Yates’ memo. Although supposedly addressed to an audience of practicing lawyers, it contained no specific legal argumentation. It made no references to any statutes or court decisions. It didn’t even mention the Constitution. Yates simply asserted that she is “not convinced that the Executive Order is lawful.” Indeed, she weirdly qualified her position with the phrase “At present.” Was she inviting challenges? Heaven only knows. Was she revealing that she was going to throw a big monkey wrench into an already tumultuous situation even though she hadn’t definitively made up her mind? So it seems. Did she describe any process she might use to evaluate the measure further? Did she mention any deadline she had created for a final decision – something essential for her Executive Branch colleagues charged with administering the EO? Not at all.

Yates’ inclusion in her memo of numerous arguments outside the legal sphere also indicates she wasn’t terribly confident in its purely legal basis. Indeed, she seemed to confirm that her agency’s Office of Legal Counsel affirmed that the EO is “lawful on its face and properly drafted.” But rather than simply offer her own legal counter-arguments, she proceeded to cite as evidence on her behalf:

>”statements made by an administration or its surrogates [i.e., individuals outside the administration with no official status] close in time to the issuance of an Executive Order that may bear on the order’s purpose”;

>”whether any policy choice embodied in an Executive Order is wise or just”; and 

>the Justice Department’s “solemn obligation to always seek justice and to stand for what is right.”

More pertinent to the (dispositive) issue of legality (however broad or narrow) was Yates’ concern about Justice determining that its position is “informed by our best view of what the law is after consideration of all the facts.” It’s true that an exclusively textual analysis often does not suffice in the legal world, and that terms in statutes are frequently surrounded by or generate “umbrellas” that can be far-reaching. But this was the place for Yates to serve up some specifics behind her doubts. Her only apparent effort along these lines was her observation that the EO “has been challenged in a number of jurisdictions.”

This threadbare legal reasoning, combined with the strong emphasis given to factors that concern philosophy and policy, not law, inevitably create the impression that the former Acting Attorney General was protesting too much.  In fact, it looks like little more than the use of that common rhetorical tack of throwing as much mud against the wall in hopes that some of it sticks – and thus playing to a crowd far beyond her professional subordinates.

Finally, on this score, although I lack a legal education, someone who does – in spades – has just called Yates’ reasoning “extraordinarily weak.” Author Jack Goldsmith – a Harvard Law School professor who has also served as an Assistant Attorney General – does agree that Yates was within her authority in determining “which presidential orders the Department will defend in court.” He also endorses her view of the “narrowly” technical purview of her Department’s Office of Legal Counsel.

But he calls Yates’ justification for her decision a “sharp” departure “from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court. As such, the letter seems like an act of insubordination that invites the President to fire her.”

Of course, Goldsmith’s views aren’t dispositive, either. But in combination with the the rhetorical stunts I’ve described and the paucity of legal reasoning and evidence Yates offered, it places a heavy burden of proof on those who insist that her behavior was responsible.

In fact, as Goldsmith contends, the proper course of action for Yates was resigning, and here we arrive at one of the two crucial differences between this episode and that Watergate-era “Saturday Night Massacre.”

During that October, 1973 episode, President Richard M. Nixon, under investigation by Congress and his own Justice Department for abuses of power, fired Archibald Cox, a Harvard Law School professor who had been appointed as the Department’s Watergate Special Prosecutor. After refusing Mr. Nixon’s order to dismiss Cox themselves, Attorney General Elliot L. Richardson (who chose Cox) and then his Deputy, William D. Ruckelshaus, resigned from their positions. Crucially, they did not insist upon their right or duty to remain on the job in defiance of a presidential directive.  

Another important difference, although its relative importance is debatable: Richardson (and possibly by extension, Ruckelshaus) arguably had a stronger basis for staying on. For Richardson’s confirmation as Attorney General by the Senate depended largely on a commitment he made (and cited in his resignation letter) to “assure the independence of the Special Prosecutor.” The position’s creation – which was agreed to by the former president – was considered necessary by the Senate (and much of he rest of the country) to prevent a flagrant conflict of interest. The aim was making sure that Justice officials beholden bureaucratically and politically to a sitting president would not be in charge of major Executive Branch legal probes and actions against him.

Interestingly, however, Richardson did not claim in his resignation letter that the Nixon decision violated legally binding commitments made to the Senate, much less any presidential Constitutional obligations to the Senate given that body’s Constitutional role in confirming Executive Branch appointees.

Instead, Richardson wrote to the president, “While I fully respect the reasons that have led you to conclude that the special prosecutor must be discharged, I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done.” That is to say, Richardson portrayed his decision as a matter of personal honor.

Yates and others are fully entitled to dissent from President Trump’s Executive Orders and to challenge them through the court system on legal and/or Constitutional grounds. What Yates was not entitled to do was to portray her stated rationale not to defend the orders while serving as Attorney General as consistent with that office’s authority, rather than the product of her own particular personal views. For these are utterly irrelevant from a legal and Constitutional standpoint. And anyone who sees her as another Elliot Richardson and her firing as another Saturday Night Massacre doesn’t know much about either.

Im-Politic: How Trump Could Really Make the News Media Great Again

Tags

CNN, Constitution, First Amendment, Harvard University, Im-Politic, Mainstream Media, press freedom, Sean Spicer, The New York Times, Trump, White House Correspondents Association, White House press corps

The nation’s intertwined media and political elites are in an uproar over President-elect Trump’s performance at his press conference yesterday – the first he’s held since July. Their stated fear: Mr. Trump’s refusal to answer questions from a CNN reporter at the session add to evidence that he and his administration will be willing to “retaliate, bully, and ban journalists whose questions he doesn’t want to answer.”

As a result, the media won’t have “the access and information necessary to accurately and honestly cover the new administration” and the public will lose out “on the perspective those reporters bring, and we as an industry lose out in our efforts to hold power accountable.”

Sounds pretty serious. Except here’s what these supposed watchdogs of democracy either don’t get or won’t admit: More than ever before in recent memory, the Mainstream Media that Mr. Trump has so often attacked are hardly the totality of the U.S. media universe. They’re clearly not the totality of the competent or intellectually honest U.S media universe. And therefore, restricting some of their members’ access to American officials no longer means that the public’s right to know need be endangered.

The nation, and especially those increasingly overlapping political and media classes, have gotten so used to the structure of the journalistic universe as it’s evolved in recent decades that everyone’s forgotten that it has never, and shouldn’t be, set in stone. More specifically, although freedom of the press unmistakably is and should be protected vigorously by the Constitution, the role of today’s leading national news organizations, and in particular, the current White House press corps, has no legal or Constitutional basis. Nor should they enjoy such a privilege.

The White House Correspondents’ Association (WHCA), for example, exists and itself influences access to White House officials through its membership criteria, solely at the president’s behest. No government officials are required to deal with reporters on its roster, and as the organization itself acknowledges, presidents have treated it with dramatically varying measures of respect and disdain for more than a century.

In fact, the last word on who can interact in the role of journalists with government officials on any level legally belongs with government agencies themselves. In the words of this 2014 Harvard University study on such issues, the First Amendment

“does not cover the full spectrum of newsgathering activity, and, as presently understood, does not confer a right to gather news in particular places or circumstances to which the public is not otherwise admitted. This includes access to private events, as well as access to nonpublic spaces owned by the government (such as government offices and prisons).”

Could American leaders exploit this situation in order to deny the public the information it needs to evaluate their performance, and weaken the vibrancy of truly representative government? Of course. But keep the following three considerations in mind:

First, according to the Harvard report, “Recognizing that effective newsgathering requires greater levels of access than what the First Amendment provides, legislators and regulators at various levels of government have adopted policies granting to a subset of the public identified as the ‘press’ certain privileges to do things that ordinary citizens may not.”

In addition, as this study documents, the courts have demonstrated a clear determination to ensure extensive access by journalists to public officials, and to define “journalist” in ways that have enabled aggressive reporting.

Regarding worries about the presidency in particular, the federal government also contains a legislative branch with plenty of members of opposition political parties. Even disgruntled members of a president’s own party have ample means to disclose information they consider important – either through their authority to compel testimony and reports from the executive, as well as their power of the purse; or by working with the media themselves.  

Second, how democratic would it be to empower the media themselves – which after all consist overwhelmingly of privately owned, profit-seeking businesses – to determine who can attend press conferences and belong to media pools covering traveling leaders? Indeed, how democratic would it be to entrust the establishment media specifically with this responsibility?

These businesses – again at the government’s sufferance – already play a decisive role in these matters. How many Americans – outside Beltway insider circles – are satisfied with the results? And what evidence is available that the White House Correspondents Association has adequately disciplined members who have been exposed as partisans? As little as has been seen from the journalistic employers of these hacks – who don’t seem to have fired any of them.

Third, the better establishment journalists perform at reporting accurately and impartially, the likelier they are to create, maintain or reestablish the kinds of informal relationships with the widest variety of officials that have always been central to the most valuable investigative reporting – as opposed to shouting questions in the White House press room. And don’t forget the importance of filing Freedom of Information Act suits, or even keeping up with information on the public record – which can be astonishingly revealing.  

In the meantime, the incoming administration has indicated that it’s thinking of introducing some badly needed accountability of its own into its dealings with the press – for example, Mr. Trump’s refusal to respond to the CNN reporter in the (not unreasonable) judgment that the organization has too often fallen short of best journalistic practices. Moreover, his press secretary-designate, Sean Spicer, has spoken of changing the authorized White House press pool in various ways in order to reflect better the makeup of contemporary journalism.

So America may be heading towards a world in which presidents (and other senior government officials) don’t feel any particular need to deal with, say, CNN. Or The New York Times. In the short term, the result might be a rocky period for the government, for the media, and possibly for the flow of high quality information a real democracy needs. Yet the status quo ante plainly was not sustainable – both because of new technologies that have been rapidly transforming the media landscape, and because traditional journalism’s recent performance in particular has been so deficient.

But American leaders will still have powerful interests in getting their stories and narratives out through news organizations with large audiences. That’s why I’m confident that, however scornfully they treat individual media companies, they’ll nonetheless wind up dealing with responsible and dedicated journalists. And who knows? Maybe heightened competition will help make the Mainstream Media great again.

Im-Politic: A Common Sense Approach to the National Anthem

Tags

1968 Olympics, Colin Kaepernick, Constitution, First Amendment, Im-Politic, John Carlos, Muhammad Ali, national anthem, National Football League, professional sports, race relations, racism, Tommie Smith

Ever since pro football player Colin Kaepernick of the San Francisco 49ers decided to protest racial injustice in America by kneeling during the national anthem, I’ve been asking myself why I’ve found his (and similar recent) actions so unimpressive, while remaining moved by the political actions of black athletes in the 1960s. And I’ve come to conclude that it’s not because I’m a fogeyish baby boomer who by definition believes everything was better back in the day.

I say this for two related reasons. But first, let me express agreement with those who have noted that Kaepernick’s gesture is completely protected by the First Amendment. Also, I’ve heard some arguments to the effect that athletes and other employees in many other industries routinely sign contracts holding them for public relations reasons to certain standards of behavior both on the job and off, and that as a result, the quarterback (voluntarily) surrendered some of his freedom of speech.

But both the 49ers and the National Football League deny that this has been the case.  And although I’m not a lawyer (and don’t even play one on TV!), I doubt that it’s constitutional for employers to deny or even curb the free speech rights of their employees unless exercising them can be shown to either interfere significantly with carrying out their responsibilities, or significantly harm the company’s image. 

Let’s get another matter out of the way, too. Although Kaepernick can’t be legitimately criticized for this, he and other football players pros who made national anthem protests can be knocked for timing last Sunday. I mean – on September 11? Seriously? The merits of the case aside, what could be likelier to forfeit public sympathy, especially among those not already with them?

But I would have been put off by the protests regardless of date – in contrast to my admiration for, say, Muhammad Ali and the two sprinters who bowed their heads and gave black power salutes when awarded medals at the 1968 Olympics.

The first reason has to do with the context. In the late 1960s, the involvement of athletes in politics was brand new, and taking non-mainstream stances was virtually unprecedented, especially for high profile performers. In fact, genuine courage was required – as made clear in Ali’s case when he was fined and  suspended from pro boxing simply for conscientiously objecting to military service during the Vietnam War. Olympians Tommie Smith and John Carlos had no opportunities to cash in on their triumph in Mexico City by running track professionally, but they paid significant personal prices, too.

Although Kaepernick et al have caught non-negligible flack, athlete and broader celebrity involvement in political and social issues has now become so routine that many causes use their Congressional testimony as core elements of their strategy. Even better, athletes and celebrities who take left-of-center positions can count on strong support from the country’s media and entertainment establishments.

My second reason for disquiet with the current generation of athletic and celebrity activists concerns the targeting of the national anthem. Actually, I have some sympathy for the view that patriotic displays have no place at sporting events, and that however traditional playing the anthem has become, the fabric of American life would remain fundamentally unchanged if the practice was ditched.

But here’s what matters more, as I see it. National anthem-like protests had more merit decades ago, when channels of protest, even for prominent individuals, were much fewer and further between simply because the media universe was so small. You had the three major commercial broadcast networks, along second-tier operations like Metromedia (essentially the ancestor of Fox). You had three national newspapers, three weekly newsmagazines, a few publications like Life and Look that didn’t deal with hard news controversies and opinion quite so consistently, and that was it. National syndicates did offer commentaries from the likes of Walter Lippman and Drew Pearson and the team of Evans and Novak. But the op-ed page didn’t exist until 1970. So if you hoped to reach broad audiences, and weren’t already world or nationally famous, you were for all intents and purposes out of luck. And this was also true if your renown came from a career not associated with journalism or public affairs.

Need I explicitly mention you that we’ve come an awfully long way since then? Indeed, we’ve come so long that unless you’re actively seeking to avoid them, there’s almost no escape from commentaries about political issues, and about controversial social and cultural issues. And in this environment, it seems reasonable to me to view an event like the playing of the national anthem as a valuable and constructive opportunity. It’s a chance to capitalize, on occasions when large numbers of us gather together in person, to affirm our common American identity in ways diametrically unlike the current smash-mouth style of most current politics and opinionizing.

As a result, although no one is legally obligated to stand or sing, those who decide to kneel or otherwise demonstrate at that moment strike me as at the very best off-putting, and at worst not so much unpatriotic as unreasonably hostile to acknowledging anything positive about the nation’s history and achievements. And I’d like to think that I’d take this stance even if the protest supported a cause I favored.

So here’s my plea to Kaepernick and other athletes moved to continue national anthem protests, for whatever reason: Given all the other powerful platforms you have to make your points, could you keep at least this particular ceremony a haven from the constant din of our ubiquitous public conversation? Americans today are anything but short of ways and means of expressing our disagreements and divisions, genuine and concocted. Questions of constitutional liberties aside, how about preserving at least one occasion for expressing our common bonds?

Our So-Called Foreign Policy: Preliminary Thoughts About and Lessons of Paris

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2016 elections, Al Qaeda, border security, borders, Charlie Hebdo, civil liberties, Constitution, Donald Trump, France, Immigration, intelligence, ISIS, jihadism, Middle East, migrants, Mumbai attack, Obama, Our So-Called Foreign Policy, Paris, Paris attacks, radical Islam, refugees, Robert Jackson, September 11, surveillance, terrorism

Because barely a day has passed since the news first broke of the horrific terrorist attacks in Paris, caution is in order about commenting, especially about the identity of the attackers, and other crucial details of the strikes. Nonetheless, some observations can reasonably and usefully be drawn, and some important implications, including for a range of security and economic policies, can be identified.

> Except for the innocent victims and their families and friends, the Paris attacks weren’t a “tragedy,” as so many good-hearted folks have mistakenly supposed. Whether the aim is intentional or not, that term drains the event of moral content and inhibits clear thinking. In particular, it weakens the public’s determination to establish and enforce accountability – notably over the longer run, as the temptation grows to return psychologically to normality, along with shoulder-shrugging defeatist impulses. Instead, the attacks were an outrage and an atrocity. Making all efforts to prevent repeats are imperative both for self-defense and to create a better, safer world for future generations.

> Another term we need to excise from news coverage and discussion is “senseless.” The Paris attacks clearly were intended to further a political and policy agenda: sowing chaos among ISIS’ enemies the worldwide, including in the United States, and dissuading governments from joining military efforts against the group in the Middle East, or from continuing or strengthening existing efforts. Indeed, these agendas – which are sadly likely to achieve at least some degree of success – are what justify labeling the Paris attacks as acts of terror. As such, they are utterly incomparable to the kinds of mass shootings in America and elsewhere that are carried out by obviously deranged individuals whose heads are filled with heaven knows what delusional “ideas” with no chance of attracting significant support or even sympathy.

> ISIS has now credibly claimed responsibility, and both the French and U.S. (albeit with some apparent reluctance) governments agree. So there can’t be much doubt that the attacks represent the latest instance of Islamic terrorism.

> As widely noted, the Paris attacks could well mean that this Islamic terrorist challenge is entering a new phase even more dangerous than experienced so far. Its scale and intensity more closely resembled the 2008 attacks on Mumbai, India, than the more targeted strikes on the Charlie Hebdo staff and on a kosher grocery store in suburban Paris, both in January. Indeed, the City of Light was literally a war zone for several hours, as both the French military and police were called into battle.

> There’s no reason to think that ISIS – and similar groups – will stop, even for the time being, with Paris. No one should rule out equally deadly follow-on strikes elsewhere in Europe, and – though less likely due to geography – the United States.

> Mumbai, of course, was all too easy for Westerners to ignore, even though many of the victims were Westerners. But because so many were not, and because it took place in a very far away developing country that’s typically dismissed as violence-prone, it hardly amounts to wallowing in liberal guilt to acknowledge that Mumbai’s impact in Europe and North America was orders of magnitude weaker than mass killings in one of the former’s crown jewels.

> Meaning no disrespect to all the dedicated individuals in intelligence and security agencies in France, and all over Europe, but if only because attacks like those in Paris require so many accomplices and so much on-the-scene planning and related activity, it’s clear that anti-terror strategies need to be dramatically improved. For example, it’s already been confirmed that one of the attackers was a French national who had been on a French government terrorism watch list since 2010. No doubt other lapses will be revealed going forward.

> Similarly, there can’t be any reasonable doubt that border security policies in Europe and the United States will need to be strengthened. Near the body of one dead attacker at the Stade de France was found a Syrian passport showing that holder had been admitted as a refugee into Greece in early October. It’s not certain that the passport actually belonged to the attacker – as opposed to a victim – although at least one report says the document was found on the attacker’s person. Further, another report has appeared of a second such passport. And another passport found in the vicinity reportedly comes from Egypt.

Although some analysts believe these documents to be counterfeit, and carried by the attackers to boost European opposition to admitting large numbers of Middle East refugees, properly screening these migrants is clearly a major challenge because terrorist infiltrators could easily exploit the chaos surrounding many entry points. And once in a country belonging to Europe’s visa-free zone (and Greece is one of these), visitors are free to travel passport-free among 25 others (including France).

It’s also important to note that America’s own borders, especially with Mexico, aren’t exactly hermetically sealed, and that serious mistakes by its own immigration authorities made the September 11, 2001 attacks that much easier to carry out. Indeed, six of the 19 September 11 hijackers had violated various American immigration laws, but were still in the country, including two who had overstayed their visas. As a result, supporters of lenient U.S. and European immigration and refugee policies clearly don’t want to hear this, but tighter restrictions are nothing less than essential.

> In this vein, these policies are bound to become far more controversial throughout the West, and it’s hard to imagine that supporters of stronger immigration controls – especially Republican presidential hopeful Donald Trump – won’t benefit politically.

> Further, since many Islamic terrorists are nationals of victim countries, more aggressive surveillance and related counter-measures are simply unavoidable. For all the vital importance of preserving civil liberties, their preservation, as always, needs to be balanced against national security considerations that clearly have again grown in importance. No freedoms are ever absolute, and in times of emergency like this, it’s crucial to remember Supreme Court Justice Robert Jackson’s warning in a 1949 dissent that “if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

> Calls for escalating the West’s military operations against ISIS have naturally proliferated over the last 24 hours, but the goal of decisively defeating this terrorist group is no more realistic than it was before the Paris attacks. As made clear by the decisive defeat of Al Qaeda following 9/11, the Middle East remains so terminally ill on so many fronts that it will remain a breeding ground for terrorism for the foreseeable future. And since, as I have written repeatedly, America’s allies in the region are too internally weak to “step up” and provide meaningful assistance to a coalition dominated by non-Muslim outsiders, the nation’s best hope for greater security is focusing on what it can plausibly hope to control – access to its own territory.

Im-Politic: Marriage Equality and the Constitution

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10th Amendment, Constitution, equal protection, gay marriage, Im-Politic, marriage equality, Reserve Clause, same-sex marriage, states' rights, Supreme Court

Yesterday, one of my Facebook friends wrote a detailed response to my post on the Supreme Court’s marriage equality decision that focused on some of the main Constitutional issues raised. I just replied on Facebook and then realized that it’s a subject worthy of a follow-on piece.

My critic made the following arguments:

“Whether or not a judicial decree brings temporary delight to one group or another is not an adequate criterion for supporting the action. While many do not see what is behind the curtain, the real issue involves the relationship between government and the governed. The Supreme Court has taken it upon itself to bring an end to self-government, and the sovereignty of the states in one rogue action. The Constitution grants to no part of the Federal Government any power to redefine marriage as understood for thousands of years. Worse yet, many of the state laws were supported via referendums. 

“The Supreme Court has fashioned itself to be a politburo. Now we will see if any part of government or society has the gumption to tell them to go jump in a lake.”

Here’s my position:

“Without trying to put words in your mouth, it sounds like you’re making the states’ rights argument. As I mentioned in my post, I’m not a lawyer, and its thrust was not Constitutional. But obviously, the issue is critical, so here’s why I find this objection weak.

“First, the states are manifestly not sovereign political entities. They are members of a political union whose supreme law is a federal Constitution. The sine qua non of sovereignty is the absence of any higher recognized authority. Second, what is legitimately left of the states right issue flows from the Constitution’s reserve clause, the popular name for the 10th Amendment. It holds ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’

“This amendment has been long and heatedly debated. But there can be no doubt that it does not say that everything not included among the federal government’s responsibilities is automatically and for all time the purview of the states. And it certainly doesn’t specify that the regulation of marriage is some special province of the states – or any level of government. What it does specify is that any powers assumed by the states need to conform to provisions of the Constitution.

“One of these, of course, is equal protection under the law. So whether marriage regulation is an eternal right of the states or not (and again, I see nothing in the Constitution indicating this), there is no legitimate basis for arguing that marriage can be regulated in ways that discriminate on the basis of sexual preference.

“And as for the referenda point, “the people” don’t have the right to put in place policies that violate Constitutional norms, either. Regarding your point about longstanding notions of marriage, my post did point out that for thousands of years before current traditional marriage emerged, the institution took many different forms. And since no one has a crystal ball revealing what it will look like in the far future, what’s the case for making policy or law or interpreting the Constitution based on traditional marriage’s continued durability?

“Finally, as I made clear at the start of the post, I believe current traditional marriage is the best from the crucial child-rearing standpoint (all else equal, which it rarely is). But as I also made clear, policy-making can’t be about my own individual preference, or anyone else’s. And that goes double for interpreting the Constitution.”

Since I’m hardly the last word on these matters, I’ll be eager to see what further discussion these posts generate.  But a national right to marriage equality has now been established, and to me it looks solidly grounded not only in good – and necessary – public policymaking principles, but in good – and necessary – Constitutional interpretation.

Im-Politic: Mainstream Conservatives’ Sovereignty Concerns are Way too Selective

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American Enterprise Institute, Buy American, Constitution, COOL, Financial Stability Board, food safety, free trade agreements, G-20, Im-Politic, NAFTA, regulation, sovereignty, The Wall Street Journal, TPP, Trade, Trans-Pacific Partnership, Wall Street, World Trade Organization

Ever since the NAFTA negotiations launched the current era of U.S. trade policy 20 years ago, critics on both the left and right-wing fringes (and I’m not using the word pejoratively) of American politics have complained that many new trade deals have threatened American sovereignty. Joining this chorus over the years have been voices from the far right that have detected the same danger from international organizations like the United Nations. These critics, who typically finger one-world-er American officials as co-conspirators, invariably are dismissed by mainstream journalists and pundits as a paranoid “black helicopter crowd.”

So imagine how strange it is to see a member of the U.S. government’s Securities and Exchange Commission (SEC) co-author an op-ed for The Wall Street Journal claiming that Washington has secretly outsourced some key financial regulatory authority to a little-known international body called the Financial Stability Board (FSB). According to SEC Commissioner Daniel Gallagher and former senior Treasury Department official Peter Wallison, the Obama administration :

“has consistently moved to implement the FSB’s decisions without telling Congress, or the public, that it regards the FSB’s decisions as binding. There’s a reason for this lack of candor. Congress has never endorsed the idea that FSB decisions are binding on U.S. agencies. The FSB’s authority, if any, flows from the G-20 [a grouping of the world’s 20 biggest economies]. Allowing its decisions to dictate U.S. policy means that an American president can create authority to issue domestic regulations simply by making an agreement with the G-20 or other foreign leaders.”

The purpose of this post isn’t to evaluate whether Gallagher and Wallison are right in contending that “This is a dangerous precedent. The FSB’s decisions cover the financial system. But there is nothing to stop similar agreements about the environment, telecommunications and other crucial matters if the precedent is allowed to stand. The result would unravel the separation of powers and the role of Congress in the U.S. constitutional system.”

Rather, the point is to ask where these two, and other establishment conservatives, have been for the last two decades – during which nearly any American laws and regulations having any effect on U.S. trade flows have been vulnerable to the decisions of the World Trade Organization (WTO). And to wonder whether they will finally take off their blinders?

The WTO technically cannot strike down U.S. policy decisions. But it can bring about their elimination, and prevent their enactment, by authorizing countries claiming to be victimized by these measures to respond with tariffs versus American goods and services aimed at their markets.

Nor is this a theoretical possibility. For example, the WTO right now is ruling on whether Washington can require food producers to tell U.S. consumers whence their products come.  And its rules helped President Obama and the offshoring lobby defeat proposals to broaden the Buy American requirements governing federal purchasing policies – which would have greatly increased U.S. production of real world goods and services, and employment in those sectors, at the depths of the Great Recession, when they were desperately needed. (In fact, they still are.) Stronger and wider Buy American rules would have limited multinationals’ ability to supply the U.S. government from their foreign factories and other facilities – at U.S. taxpayer expense.

Moreover, other U.S. trade agreements have generated the same dangers, thanks to dispute-resolution systems that give all signatories equal say and votes, even though the American market is invariably the largest single national market at stake.

In principle, Washington’s submission to these global organizations is constitutional, because American membership and participation were expressly approved by Congress. But how many legislators do you suppose actually read the full texts? And how many do you suppose believed then-U.S. Trade Representative Mickey Kantor, who championed the WTO’s creation with a classic piece of Clinton-style parsing: “[T]he WTO does not require the United States to change any law, regulation at the federal or state or local level as the result of any decision made under this use — dispute settlement process. That’s up to the Congress or other legislative bodies, whether or not they wish to take that act. We’ve not given up any sovereignty in that regard.”

Now of course, President Obama is asking Congress to approve another major trade agreement – the Trans-Pacific Partnership (TPP) – that because of its sweeping regulatory scope arguably contains more threats to America’s sovereignty than the WTO. Yet both the Wall Street Journal editorial page staff that published the Wallison-Gallagher piece, and the American Enterprise Institute that employs Wallison, strongly favor TPP ratification. Which makes it hard to avoid concluding that they think it’s more important for the Constitution protect Wall Street than to protect American workers and the rest of the nation’s productive economy.