“Donald Trump joked with Vladimir Putin about getting rid of journalists and Russian meddling in US elections when the two leaders met at the G20 summit in Japan.
As they sat for photographs at the start of their first formal meeting in nearly a year, the US president lightheartedly sought common ground with Putin at the expense of the journalists around them in Osaka. . . .When journalists asked Trump just before he left for Japan what he would like to talk to Putin about, he told them it was “none of your business”. As they sat alongside each other, a reporter asked whether he was going to tell Putin not to meddle in the 2020 election.
Trump said: “Yes, of course I will,” drawing a laugh from Putin. Then, without looking at Putin, Trump said briskly: “Don’t meddle in the election, please,” and then repeated the phrase with a mock finger wag as Putin and the US secretary of state, Mike Pompeo, smiled broadly.” – The Guardian
Monthly Archives: June 2019
Pure spite denies medical care for the rural poor in red states
Quote of the day comparing states that accepted Medicaid expansion and states that refused to do so:
The Long Game: SCOTUS imperils California’s authority to protect the coast
A 5-4 ruling of the U.S. Supreme Court, in Knick v. Township of Scott, threatens the California Coastal Commission’s ability to oversee land and water use in the coastal zone and to ensure public access to beaches and oceanfront. But not right away. The activist conservative ideologues that form the 5-man Republican majority on the Court – in lockstep with the conservative legal movement – are playing the long game. The four Democratic justices in the minority of the Court’s most significant 5-4 decisions (which will continue inexorably for the foreseeable future), understand the long game, and are responding with increasingly furious dissents as the majority overturns longstanding precedents.
The case at hand is nothing special: a property owner’s dispute regarding a land use decision by a local government. The decision overturned a 1985 ruling – and decades of previous precedents – that required property owners to seek redress in state courts (when state and local land use decisions were in dispute) rather than in federal court. In Knick v. Township of Scott, the majority ruled that property owners in land use disputes could bypass state courts and proceed immediately to the federal courthouse.
The common law concept of eminent domain is a sovereign power of the state to ‘take’ property – chiefly to purchase land for public use (to build a highway, a city hall, or an aqueduct, for instance). States may also impose averse restrictions on property to protect public interests (such as to ensure sustainable development along California’s coast), a regulatory taking. Takings are pervasive at the federal, state, and local levels – and have existed since before the Constitution was ratified. In the 19th century, the taking of private property was instrumental in construction of transcontinental railroads.
The law and practice in this area is so well established that the prospects for successfully resisting takings in state courts are severely limited. So the conservative legal movement has focused for decades on capturing the federal courts, in this case with some creative legal theories regarding the Constitution’s Takings Clause.
The Takings Clause (the last lines of the Fifth Amendment) reads in full: “nor shall private property be taken for public use, without just compensation.” The conservative legal movement (including the Federalist Society, which can take the lion’s share of credit in the seating of the five-member ideological conservative majority on the Supreme Court) has pushed since the Reagan era to change Constitutional law so that the property rights of individuals trump the authority of government to interfere with those rights, as the California Coastal Act has done successfully.
David Savage in the Los Angeles Times noted the environmental implications of this ruling for California, which has strict regulations restricting development in cities and on the coast. Based on the Coastal Commission’s considerable influence and the persistent challenges it has faced since its inception, the biggest target of movement conservatives, in my view, is the California Coastal Act of 1976.
In fall 1972, California voters passed Proposition 20, which established the California Coastal Commission. Under Prop 20, the Commission’s authority was to expire in four years; the legislature made the law permanent when it passed the California Coastal Act of 1976. Environmental advocates have found reason to criticize the Commission from time to time. (The Coastal Commission, for instance, approved construction of an estate, featuring five houses, in the mountains overlooking the Pacific for U2 guitarist The Edge, aka David Evans. But Evans lost his latest battle to build with the victory going to the Sierra Club, which opposed the Commission’s approval. In March this ruling was described by the Malibu Times as the “nail in the coffin” for Evans’ plans after a 14-year legal battle. Rest assured, he will appeal to federal court now.)
On the whole, despite the criticism, the Coastal Commission has been extraordinarily successful in protecting the California coast from unsustainable development. (In the Evans’ case, it acted to establish compliance with previous setbacks it had suffered in court.) While its efforts to ensure public access to beaches where very rich people live have been less successful – with court battles dragging on for decades, creating legal stalemates – it has continued its efforts on behalf of the public, often (if not always) winning.
Throughout the past four decades, the Commission’s authority has been under fierce attack by conservatives, who oppose environmental regulations and regard the Commission’s strict environmental rules as draconian. The Act has withstood most significant legal challenges, because it was well crafted to conform to precedent and established law.
That changed with this week’s ruling in favor of Rose Mary Knick, the client of the Pacific Legal Foundation, which has been on a quest to get federal courts to reinterpret the Takings Clause for decades. This ruling is hardly PLF’s first victory at the high court, but it is potentially its most far-reaching victory to date.
This ruling is troubling because if every land use dispute becomes a federal case, with a Supreme Court majority comprised of conservative ideological activists, then the authority of government to enact and enforce environmental regulations will be subject to challenge. The legal basis for environmental protections has suddenly become much less secure. Not only the California Coastal Act, but the Clean Air Act, the Clean Water Act, the Environmental Protection Agency, the Endangered Species Act, and much else are all at risk of being ruled unconstitutionally burdensome – a violation of the Takings Clause.
Last month, in a post about two recent Supreme Court cases, I wrote about the expansive agenda of the aggressively activist conservative SCOTUS majority. The five Republican men comprising the court’s majority have sidestepped textualism and originalism (to which they sometimes pledge allegiance) and rejected the conservative legal principle stare decisis. Rather than reliance on the Constitution, or devotion to legal principle, the majority appears committed to results-oriented jurisprudence—consistent with the Republican Party’s wish list.
In the second case, Franchise Tax Board v. Hyatt (which overturned Nevada v. Hall), Justice Breyer expressed concern, in light of the majority’s disregard of stare decisis, about future rulings of the court:
“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”
In Knick v. Township of Scott, Justice Kagan objected in her dissent: ‘Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens.’
She referenced Breyer’s dissent in Hyatt:
Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent…. He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect…. He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
Then Kagan concluded, “Well, that didn’t take long. Now one may wonder yet again.”
While I have focused on the consequences for environmental law – and the threat to the California Coastal Commission – the implications of this ruling are far broader.
This reinterpretation of the Takings Clause also threatens workplace-safety regulations, progressive taxation, and employee rights. As I wrote last month, this activist conservative majority may be ushering us into a new Lochner Era, when federal rules and regulations did not impede business or corporations. With the latest 5-4 ruling, the court takes us a step closer to overturning federal authority to ensure that we have clean air and water, safe workplaces, consumer protections, and the right to union representation.
“Because he’s one of the best presidents we’ve had for a very long time. Very long time.”
Reporter’s question to Trump supporter: “What’s the main reason you’ll vote for him again?“
Her response:
“The main reason? Because he’s one of the best presidents we’ve had for a very long time. Very long time.
He doesn’t lie. I know y’all say he does. He doesn’t. He doesn’t. And I’m just going to be honest. I’m not trying to be mean. But the way the media treats him, it’s a disgrace.”
Donald Trump will get her vote. And it won’t matter that Trump hasn’t really delivered on his campaign promises.
It has been clear forever (or at least since my first post on this blog) that Trump has no intention of reaching out beyond his base.
Trump is undoubtedly convinced that whipping up the base worked for him last time. (Well, in the last presidential campaign, not in 2018.) But in 2020, James Comey will be out of sight; there will be no Clinton Cash: The Untold Story of How and why Foreign Governments and Businesses Helped Make Bill and Hillary Clinton Rich as a template for mainstream media reporting; the Democratic nominee won’t neglect campaigning in Michigan, Wisconsin, or Pennsylvania; and no one will be confident that either staying home or casting a protest vote couldn’t possibly prevent a Democratic victory.
This time around: we’ve experienced a Trump presidency, we’ll be looking out for Putin’s meddling, and Democrats – aware that Trump’s reelection would pose an existential crisis – will pull out all the stops to win.
That’s not a guarantee, but as much fun as Trump’s campaign rallies generate for true believers (“Lock her up! Lock her up!”), and as much bewildered angst as they create for more critical observers (“He doesn’t lie. I know y’all say he does. He doesn’t.”), it’s not clear that Trump is helping himself. As Jonathan Bernstein notes, “… the question is what Trump has accomplished with all of his non-stop electioneering. And the answer to that is pretty simple: Bupkis. Nada. Nothing.”
Democrats should be heartened by this. In Josh Marshall’s words, “… the idea that Trump can be a complete maniac and buffoon but none of it matters because of the electoral college or other magic powers becomes at a certain point enervating and demoralizing for those who see the danger he represents and the necessity of his electoral repudiation. There’s little evidence to back it up.”
There’s no guarantee. But Trump’s foolery may end up mattering.
Adam Schiff: Bill Barr is the second most dangerous man in the country
“But I do want to, before we move on from the subject of Barr and contempt, talk about, I think, the most grave concern about Bill Barr. And that is, during his Senate testimony, he opined that the president could have made the Mueller investigation go away any time he wanted because he thought it was unfair. That’s his view of the unitary executive.
Under that view a president is truly above the law. Because what president would not think an investigation against him or her was unfair? It also means that the president can make go away any of the investigations that were farmed out to any of the other elements of the Department of Justice. And, because they are stonewalling us on just about everything, it also means that we might not know – unless whistleblowers step forward – whether Bill Barr is abusing his authority even beyond the fundamental abuse by trying to exonerate the president on obstruction of justice.
And so we find ourselves, I think, for the first time with an attorney general who really is the president’s defense lawyer and spokesperson. And who’s quite good at it. And has the veneer of respectability to camouflage what he’s doing. He is not the sophist that Giuliani is. He’s much more dangerous. And I think he’s the second most dangerous man in the country for that reason.
When you listen to his interviews and you listen to the way he dissembles—when he was asked, even on Fox News, about, well, Didn’t Don McGahn call for Mueller to be fired? His answer was, No, he called for him to be removed, as if that’s a distinction that really makes a difference here. When he was asked, Well, you said that the president fully cooperated, but the president wouldn’t even sit down for an interview. No, no, I said the White House fully cooperated.
When you have an attorney general willing to dissemble that way. When you have an attorney general—and I hesitate to use the word, but there’s no other word that seems to apply here—that lies to Congress as he did when Charlie Christ asked him about whether he was aware of these revelations that had been reported about the Mueller team, and he said that he was not. That’s a very dangerous situation.
And as someone who came out of that department—I spent six years with the Justice department. I venerate the department. To think that it is being led by someone this way—you know, it breaks my heart for the department, but it’s profoundly concerning for the country.” – Congressman Adam Schiff on Attorney General Bill Barr, Council on Foreign Relations, June 4, 2019
Ryan Goodman, at Just Security, provides a side by side comparison of Barr’s and Mueller’s statements about the Special Counsel Report. Goodman comments:
“Whether or not Mueller was intentionally trying to correct the record, the differences between what he and Barr said are, in many cases, stark. Some of the differences involve near complete contradictions—in other words Mueller’s statement and Barr’s statements cannot both be true. Other differences are more a matter of emphasis or tone (e.g., references to the threat posed by the Russian operations, descriptions of the qualities of the special counsel staff).
The special counsel’s Report also contradicts some of Barr’s statements (such as his claim that the Report found no evidence of “collusion,” his suggestion that difficult issues of law and fact stopped the special counsel from concluding the president engaged in criminal obstruction, his claim that the President cooperate fully with the investigation). The following analysis, however, does not include the Report. Instead, it focuses only on Mueller’s public statement and how it compares to statements made by Barr between March 22 (the date that the special counsel handed his final report to the attorney general) and May 29 (the date of Mueller’s statement). This includes statements made by Barr in his 4-page summary submitted to Congress, a formal press briefing, and three congressional hearings, but it does not include Barr’s interviews with Fox News and the Wall Street Journal.”
Tick tock, tick tock – Why hasn’t the House staged televised hearings with live witnesses?
Well, finally: “In their attempt to move forward with impeachment, the Democrat-led House Judiciary Committee is reaching way back, calling Watergate star John Dean to testify on June 10.”
It’s a beginning and long overdue.
Never mind what you think about impeachment, or Nancy Pelosi’s resistance to it, or optimal timing for it, or initiating impeachment proceedings, or any other permutations. Why haven’t we had televised hearings with live witnesses in the House of Representatives every week since Bill Barr released his redacted version of Robert Mueller’s report? There are scads of people whose testimony the Trump White House can’t possibly block – including many B-List folks who aren’t household names, but (as in the Watergate hearings of another era) can advance the narrative of presidential wrongdoing. (John Dean is fine, as a warm-up, though the Mueller Report mentions a cavalcade of others who have a closer connection to Donald Trump.)
The absence of hearings up till now represents Congressional malpractice. Numerous commentators have highlighted the importance of telling a story through House hearings:
June 6 – Jonathan Bernstein (“Stop Obsessing About Impeachment Poll Numbers“):
What the House can do is relentlessly dramatize and amplify the story that the Mueller report tells, along with other Trump impeachable malfeasance and scandals. So far, they haven’t really done that effectively.
June 4 – Josh Marshall (“Thoughts on Impeachment“):
The most effective action the House can take is to investigate the President’s wrongdoing and bring it before the public and hold the possibility of impeachment in the offing as they bring new evidence to the public about the President’s misrule.
But here’s the thing. . . .
If the most aggressive stance toward President Trump isn’t impeachment but aggressive investigation – which I firmly believe – then you actually have to be aggressive and show you’re being aggressive.
June 2 – Francis Wilkinson (“Before Impeachment, Democrats Must Win the War for Truth“):
Democrats . . . should methodically highlight the truth of Trump’s ethical and policy failures, day after day, in hearings, reports, news conferences and events in Washington and around the country. And then they must get up each succeeding day and do it all over again.
May 30 – Donna Edwards (“Democrats need to repackage the Mueller report for TV“):
It’s time for Democratic leaders to repackage Mueller’s findings in a form that will be more readily digested by the American people. Unfortunately, the current approach of investigations in no fewer than six committees, multiple subpoenas, innumerable court proceedings and White House delay tactics just creates more confusion. How can the United States focus on the findings if a Democratic House will not singularly focus its investigations? From the cheap seats, it appears that there may be too many balls in the air.
It is no surprise that few Americans are talking about the report over the water cooler. The only voice that breaks through with a consistent (if mostly untrue) message is President Trump’s, especially absent an alternative narrative. Democrats should look at this differently. Mueller has given Democrats cover to present that narrative and proceed with impeachment as the appropriate process under the Constitution.
May 29 – Benjamin Wittes (“Mueller Bows Out: What Does Congress Do Now?“)
Congress’s current strategy is an incoherent muddle. . . .
The better approach, in my view, is to focus on live testimony from witnesses who supplied the material about President Trump’s conduct that Mueller made public in the report—mostly but not exclusively in Volume II. There are a lot of these witnesses. Congress could easily hold weekly hearings that would be riveting television. Who knows? They might even get what the president most values in the world: good ratings. The goal would be to focus public attention on the president’s abuse of the intelligence and law enforcement communities and his individual conduct with respect to Russia. Such hearings could develop new information. They could also enrich our understanding of the existing factual record. They would serve to publicly validate and elucidate Mueller’s findings and, critically, to shift those findings from the voice of Mueller himself to the voice of the president’s closest aides. Perhaps most importantly, they would create a sustained vehicle for focusing on Trump’s conduct—which is, and needs to be, the central issue.
If I were in charge of the House judiciary committee, a wide array of witnesses named in the report would receive an invitation for public testimony—and any of them who did not immediately agree to appear would receive a subpoena in short order. The idea would be to bring the Mueller report to life and, along the way, to establish clearly in case law the ability of Congress to conduct such oversight hearings against a recalcitrant executive.
May 22 – David Corn (“Have the Democrats Blown the Trump-Russia Scandal?“):
For five months now, the Democrats have held power within the House. While passing legislation to address voters’ needs and while battling to enforce subpoenas, they could also be telling the story—with hearings featuring witnesses who could present compelling accounts that have a chance of grabbing the nation’s attention for at least a few minutes.
Three percent of Americans say they have read the Mueller report. That number is probably high. Yes, many have seen the headlines and the news accounts summarizing the report’s findings and allegations. But there is something visceral about a well-run hearing. It is a different way of presenting information to the citizenry. (John Dean’s testimony during the Watergate hearings continued for days and captivated the nation.) Congressional hearings could be used to convey the basics of the Trump-Russia scandal that have disappeared in the ceaseless shuffle—and been shoved aside by the debates over collusion and obstruction.
May 5 – Jonathan Bernstein, who has been at it a while (“Impeaching Trump Would Constrain Democrats Too Much“):
The “before” question is whether to continue investigations and hearings as part of regular House oversight, or as part of an explicit impeachment inquiry.
Are there advantages with the latter? Not really, I don’t think. Whether it’s called impeachment or not, what matters at this stage is whether Democrats can find ways to publicize Trump’s malfeasance, in hopes of both hurting Trump’s popularity and of finding new allies among any weak Trump supporters among congressional Republicans.
April 22 – Norman Ornstein (“Impeachment Is Not the Answer. At Least Not Yet“):
What we need is for the Judiciary, Intelligence, and Homeland Security Committees to conduct a series of deep dives into the areas of communication and coordination between Trump and his campaign with Russians and their surrogates, such as WikiLeaks; the multiple categories and areas of obstruction of justice that Robert Mueller outlined; the threats to our intelligence operations and our justice system from Trump and his operatives; and the moves by Russia to interfere in and influence our elections used by Trump and unchecked by Republicans. Other committees, such as Ways and Means and Banking, need to be ready to do the same thing as more information emerges from the SDNY and the New York attorney general, among others, about Trump’s financial dealings, including with the Russians, and about Russian money laundering. The witnesses need to include Mueller and Rosenstein, of course, but also the range of figures mentioned in the report, and also a range of experts in areas such as ethics, constitutional violations, intelligence operations, and election administration and security.
Democrats need to stage and coordinate hearings across committees and subcommittees, to make sure they do not overload Americans’ ability to pay attention. Most important, they need to structure the public hearings in a dramatically different way than usual. Each committee needs to use experienced counsel—a good example might be former U.S. Attorney Preet Bharara—and limit, if not abandon, opening statements, except from the chairs. No five-minute rounds of questions going down the line of every committee member, leading to utterly disjointed discourse, making it easy for hostile witnesses to evade, filibuster, or otherwise avoid follow-ups and get through a five minute period, which is then followed by a five-minute breather with an ally on the Republican side, and then another five minutes from the next member of the panel that may have nothing to do with the previous round of questions.
Good grief. Bill Barr can hardly sink any deeper into the tank for this president
“I think one of the ironies today is that people are saying that it’s President Trump that’s shredding our institutions. I really see no evidence of that, it is hard, and I really haven’t seen bill of particulars as to how that’s being done. From my perspective the idea of resisting a democratically elected president and basically throwing everything at him and you know, really changing the norms on the grounds that we have to stop this president, that is where the shredding of our norms and our institutions is occurring.” – Attorney General Barr on “CBS This Morning”
For a bill of particulars, of course, we need look no further than the Mueller Report (as if we needed that report as evidence of Trump’s off the rails behavior). And, in the world according to Barr, it’s the opponents of the President who are shredding norms.
The Attorney General’s interview with CBS, following Bob Mueller’s brief public statement earlier in the week, continues his ongoing misrepresentation, obfuscation, and validation of baseless conspiracy theories to subvert the rule of law, undermine our law enforcement and intelligence agencies, and shore up Trump’s political position.
(Full disclosure: the first two words of the headline were inspired by Barr’s hapless mien, reminiscent – to the editor – of Charlie Brown.)