Corrupting The Judiciary

There is a bedrock principle of ethical behavior that requires avoiding conflicts of interest. If someone serves on a board or commission, for example, and a pending case has been brought by a relative or close friend,  we expect that person to recuse–to abstain from participation in the decision.

When the issue is judicial behavior, it is even more important to avoid even the appearance of bias or impropriety, because the legitimacy and effectiveness of the judicial system depends upon public confidence in the probity and disinterestedness of judges.

One of the (multitude of) problems with Trump’s nomination of unqualified judicial candidates that Mitch McConnell then rams through the confirmation process is that ethical behavior is one of the qualifications a number of them appear to lack.

A recent report originally penned by David Badash for The New Civil Rights Movement is a troubling example.

Legal experts are scratching their heads after a federal judge appointed by President Donald Trump announced on Tuesday he is delaying handing down his decision in a Trump tax returns case until other federal judges hand down their decisions in other Trump cases. That judge is a former Trump transition team volunteer and has donated to the Trump campaign.

District Judge Trevor McFadden of the U.S. District Court for the District of Columbia announced he will hold up his ruling in a case brought by the House Ways and Means Committee against the U.S. Treasury Dept. The case involves gaining access to six years of Trump’s tax returns. The law clearly says the IRS “shall” hand them over to Congress. The Trump administration says Congress has no right to investigate.

This is not a case where legal or factual complexities require time-consuming analysis. This is a case in which a judge has a blatant conflict of interest, and should have recused himself.

Judge McFadden has already exhibited bias in his handling of the case, which was originally brought last  August. According to Politico, he denied House Democrats’ request to expedite consideration of the case as well as their request to rule on its merits, despite the fact that this would seem to be a textbook case for summary judgment.

Now, he has informed the parties that he will not rule on the matter until the court that is considering a challenge to the subpoena of former White House lawyer Don McGahn has ruled. He has not offered an explanation for that delay, nor indicated what the McGahn case has to do with the litigation before him–undoubtedly because (as lawyers and legal commentators have noted) there is simply no connection between the issues in the two cases.

The only explanation that makes sense is that Judge McFadden is trying to help the President avoid disclosure of his taxes. Since the law is clear and unambiguous– a ruling in favor of Trump would be a too-obvious gift to a favored litigant–he is apparently trying to avoid ruling at all until after the election.

The Executive Editor of Above the Law summed it up as a “Trump judge trying to look for a way to prop up Trump’s terrible arguments without looking like he’s a Trump judge.”

It is no longer possible to ignore the fact that Trump, Barr, Pence, Pompeo and others in the administration are deeply corrupt. We are just beginning to realize just how much Trump’s terrible judicial choices have added to the rot and corruption.

And according to the Washington Post, one in every four circuit court judges is now a Trump appointee …

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The Danger Zone

Democratic systems vary, but they share certain foundational assumptions. The most important of those is the starting point: We The People are the “deciders.”  Ultimate authority rests with the voters.

In democratic theory, candidates contend for support during election campaigns, voters cast their ballots, and the candidate who garners the most votes wins. (At least if there’s no Electoral College involved).

In order for this process to work, both winners and losers must respect the will of the people.

Losers may disagree with positions endorsed by the winning candidates, and as the “loyal opposition,” they may work in accordance with the rules to defeat the winners’ agenda, but democratic norms require that they acquiesce to the people’s choice.

When that doesn’t happen–when the losers disregard the rules and norms in order to frustrate the choices made by the electorate–governance can no longer be considered either legitimate or democratic.  Political actors who accept authority when they win, but defy the settled norms of democratic behavior when they lose , undermine the public trust and make a mockery of the rule of law.

The visceral reaction to Mitch McConnell’s unprecedented theft of a Supreme Court seat reflected a widespread recognition that this was no ordinary political maneuver–it was the arrogant demonstration of a cheat that he would abide by the rules only when they favored him.

When Republicans in the North Carolina legislature stripped the incoming Democratic governor of powers the office had previously exercised–because they could–it was their middle-finger-to-democracy gesture.

That “in your face” rejection of democratic norms is spreading.

In a newsletter for the Boston Globe, Michael Cohen recently pointed out, “in a normal representative democracy, if you run for office and then lose you let the other party run things for a while. That doesn’t mean a political party can’t oppose those efforts, but it does mean that you have to respect the voters’ decisions.”

That isn’t what is happening in Wisconsin or Michigan.

In these two states, Republican gubernatorial candidates were defeated in this year’s midterm elections. Democrats also won both attorney general races. And now Republicans are refusing to accept the results.

Instead they are trying to use lame-duck sessions – before the Democrats are sworn into office – to weaken the power of the incoming Democrats and put in place policy changes that will benefit Republicans.

Let’s start with Wisconsin, where soon-to-be former governor Scott Walker and his Republican allies in the state legislature have spent the past eight years making a mockery of democracy in the state.  Upon taking office they rammed through a highly controversial measure that stripped collective bargaining rights from the state’s public sector unions. Then they re-wrote legislative maps to give themselves out-sized control of the state government. In the 2018 election, Democrats won 53 percent of the vote, compared to 45 percent for Republicans. Yet, because of gerrymandering, that translates into a 64-36 advantage for Republicans in the state assembly.

But apparently that’s not enough for Republicans. Now they are enacting legislation that would kneecap Democrats once they take office….

For Governor-elect Evers, Republicans would not only force him to enact work requirements for Medicaid, but would also require him to get the legislature’s permission before submitting any request to the federal government to change how federal programs are administered. In effect, Republicans would give themselves a veto over much of what Evers would try to accomplish as governor. Walker has stated publicly that he will sign the bills.

….

Republicans aren’t even being shy about their agenda. In Wisconsin, Republican Senate Majority Leader Scot Fitzgerald defended his party’s actions by saying, “I’m concerned. I think that Governor-elect Evers is going to bring a liberal agenda to Wisconsin.”

He’s right. But of course Evers’s agenda is what Wisconsin voters chose.  To put roadblocks in front of it is to, in effect, say to voters that their choices don’t matter. It’s hard to imagine a statement more contemptible in a democracy than a political leader telling a state’s voters, “only the views of the people who voted for me matter.” But that’s precisely what Fitzgerald and his Republican colleagues are doing.

Changing the rules after they’ve lost the game. Undoing the results of a democratic election because they lost.

This behavior is nothing less than an attack on America and its values.

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The Gravedigger Of American Democracy

This post is a plea to my Indiana readers.

When those of you who haven’t already voted go to the polls, vote for Joe Donnelly.

Am I enthusiastic about Donnelly? No. His television ads are insulting (although not quite as despicable as the spots supporting his opponent, Braun.) Those ads repel rather than motivate the Democratic base and they infuriate even moderate Democrats. His support for Trump’s wall is an obvious play for the sizable and embarrassing contingent of Hoosiers who oppose immigration and fear immigrants.(News flash, wall enthusiasts: the great majority of “illegal” immigrants fly to the U.S. and then overstay a visa. A wall–even if building it on the border were feasible–would do exactly nothing to deter them. But don’t let logic interfere with your bigotry.)

There’s more, but it’s all irrelevant, because a vote for Donnelly is a vote against Mitch McConnell. And that makes it really, really important.

In a review of a book on the rise of Hitler that drew parallels between the 30s in Germany and the contemporary U.S., ( the book title is The Suffocation of Democracy), the New York Review of Books included a perfect characterization of McConnell:

If the US has someone whom historians will look back on as the gravedigger of American democracy, it is Mitch McConnell. He stoked the hyperpolarization of American politics to make the Obama presidency as dysfunctional and paralyzed as he possibly could. As with parliamentary gridlock in Weimar, congressional gridlock in the US has diminished respect for democratic norms, allowing McConnell to trample them even more.

As one of my sons noted, in a Facebook exchange with a Democrat unhappy with Donnelly,

As most of us (sadly) recognize, we don’t have a choice on the ballot between “perfect”and not perfect; we only have a choice between “decent” (Donnelly) and “horrible” (Braun/McConnell). Let’s go for decent.

Donnelly will vote for Democratic priorities about half of the time. Braun will vote for right-wing Republican priorities and continue to demonstrate his fidelity to Trump and Trumpism all of the time.

A Republican friend has come to the same conclusion. Commenting on the Donnelly/Braun race, he wrote that Braun, in his view, had violated one of Indiana’s most important values by running explicitly as a “Christian.”

Does that not make it appropriate to ask which biblical verses he adheres to and which he does not? Which he elevates and which he dismisses? Perhaps candidates will need on a scale of 1 to 10 to rate their conviction in various tenets of Christian faith, so we know who to trust.

How are these questions not appropriate if Braun runs as if Christianity is a qualification for office, when in Indiana, it explicitly is not.

I’m not being clever. Braun’s kind of campaigning is so outrageous that our Ancestors here saw through it…. Recognized the danger and the nonsense…and banned religion as a qualification for government. I don’t think anybody who doesn’t understand that has any business near the levers of power.

I agree. But even if Braun weren’t so obviously an eager participant in the Trumpist assault on American and Hoosier values, even if he wasn’t touting his Christian credentials at a time when Trump is demonizing immigrants and engaging in rhetoric that encouraged a rightwing fanatic to mow down eleven Jews, a vote for Donnelly would still be important.

Why? Because Donnelly’s first vote will be against Mitch McConnell, and McConnell–aka the most evil man in America–is the gravedigger of American Democracy. And a vote for Donnelly–warts and all– is an opportunity to cast a vote against Mitch McConnell.

And any vote against Mitch McConnell is a vote to be proud of.

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What Now?

I cannot recall a time when so many Americans were this angry. Of course, I wasn’t around for the civil war, (although sometimes I feel that old.)

We have certainly been deeply at odds before. Mostly, our conflicts have centered on clashing worldviews: wars, religious conflicts, extensions of civil rights, reproductive liberty, dissent and patriotism.  But right now, the fury being expressed by so many ordinary citizens seems different in kind.

It feels very personal.

Americans still have different perspectives on the issues, of course–in spades. U.S. citizens are not just polarized; they occupy different, inconsistent realities. But I think there is another element to the anger I see, an element the Kavanaugh hearings have amplified.

Reasonable Americans (by which I mean everyone who is to the left of Ann Coulter and Tucker Carlson) feel robbed.

There was the 2016 election, of course, in which the presidential choice of the majority was ignored, courtesy of an Electoral College that has outlived whatever utility it may once  have had.

There is the growing realization by urban dwellers that their votes–thanks to that same Electoral College– count for less than the votes of the far less diverse inhabitants of rural America.

And that’s when those urban folks get to cast their votes. Anger about increasingly blatant vote suppression tactics has been growing, too, especially among minority constituencies that have been robbed of their ability to redress their grievances via the ballot box.

Perhaps no robbery has rankled as much as the theft of a Supreme Court seat that–in accordance with American history and constitutional norms– should have gone to Merrick Garland.  The in-your-face behavior of Mitch McConnell poured salt on that wound. McConnell and the GOP made no effort to cloak their power play in even the thinnest of patriotic excuses; they didn’t bother to pretend that they were acting on some bizarre view of the national interest. Instead, they gloated publicly about their ability to abuse their power, and they were forthright about one reason for their unprecedented behavior: hatred of America’s first black President.

Women, of course, are routinely robbed of equality, respect and status in multiple environments, especially but not exclusively the workplace. Various religions counsel our submission, longstanding networks of “good old boys” dismiss and block our concerns and ambitions, the “powers that be” discount and trivialize our reports of victimization.

Moreover, to an extent only now becoming clear, we are viewed by far too many men as prey–objects to be harassed or assaulted with impunity.

Those on the right are no less angry–they actually may be more enraged–but the reasons are very different. These are primarily White Christians (disproportionately but not exclusively male) who have a well-founded fear that they soon will be robbed of their cultural dominance and privilege. They are reacting with fury to culture change and the increasing claims to a place at the civic table by LGBTQ, black and brown people, and women. Robert Jones has documented their resentment and rage in his recent book, The End of White Christian America.

The Kavanaugh hearings poured gasoline on all of those fires.

It was all there: the “old boys” once again dismissing the experience of a credible and accomplished woman, while simply ignoring the thousands of women who called and wrote and confronted them. The petulant,  entitled (and embarrassing) behavior of a privileged white guy outraged by the very idea that he might be called to account. The incivility shown to Democratic committee members by Kavanaugh, Senator Grassley and committee Republicans.

The hearing reopened the wound over Merrick Garland (not least because of the striking contrast in the two men’s judicial demeanor), and it reminded Democrats that–thanks to gerrymandering and the Electoral College– Republicans control  Congress and the White House despite the fact that a significant majority of the citizens who cast ballots voted Democratic.

Pent-up fury over all of this– plus the daily outrages of the Trump Administration– is likely to erupt in ways we’ve not previously seen.

I don’t know what comes next, but I’m pretty sure it’s going to be very ugly.

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Speaking Of Treason

The dictionary defines treason as betrayal, treachery, disloyalty and faithlessness. I looked it up, because it was the word that came to mind when I read this article by Josh Marshall at Talking Points Memo.

Marshall was revisiting a report that first emerged in June, 2016, about a remark made by Kevin McCarthy, House Majority Leader, asserting that both Donald Trump and Dana Rohrabacher were on Putin’s payroll. When the comment leaked, staff members dismissed it as a “joke”–which it pretty obviously wasn’t. At the time, there was no way of knowing  what prompted the observation. But as Marshall writes,

Given all we know now, it’s worth revisiting not only the stunning quote but the context around it.

Let’s start by reviewing the gist of the news. Here, from Entous’s article, McCarthy pipes up in a conversation among House leadership about Russia and Ukraine.

That’s when McCarthy brought the conversation about Russian meddling around to the DNC hack, Trump and Rohrabacher.

“I’ll guarantee you that’s what it is. . . . The Russians hacked the DNC and got the opp [opposition] research that they had on Trump,” McCarthy said with a laugh.

Ryan asked who the Russians “delivered” the opposition research to.

“There’s . . . there’s two people I think Putin pays: Rohrabacher and Trump,” McCarthy said, drawing some laughter. “Swear to God,” McCarthy added.

“This is an off the record,” Ryan said.

Some lawmakers laughed at that.

“No leaks, all right?,” Ryan said, adding: “This is how we know we’re a real family here.”

Marshall notes that McCarthy and Ryan had each met with Ukrainian Prime Minister Groysman earlier in the day.

According to the recording obtained by The Washington Post, in his meetings with top US officials Groysman had focused on the dynamic we’ve all grown familiar with over the last two years: Russian funding of populist, rightist political parties, propaganda campaigns meant to throw competitor states off balance and into turmoil and even financial subsidies directly to key politicians.

Whatever else Groysman discussed with them, subsequent comments made by Ryan make it clear that he was aware of Russia’s very sophisticated cyber-warfare techniques, and that they weren’t confined to Ukraine: financing populists, financing people in various governments to sabotage those governments, interfering with oil and gas energy production, and a variety of other disruptive strategies.

The question is whether Groysman told McCarthy and the others something more specific. It’s not a stretch to imagine he did. The accounts suggest he was describing patterns and candidates very much like Donald Trump. We simply don’t have evidence to settle that question. The people in that meeting certainly aren’t talking. What strikes me is that the people in that meeting, certainly Kevin McCarthy and Paul Ryan had a very clear sense of Russian operations in Ukraine and Europe more broadly and how it matched what was taking shape with Donald Trump. The gist of Groysman’s message was that western countries needed to stand united because Russia represented a common threat. The first news of cyberattack the day before only put the equation in a sharper relief.

Whatever they knew then or suspected, the coming months would add dramatic weight to McCarthy’s suspicions. Wikileaks began releasing DNC emails a month later, throwing Clinton’s campaign repeatedly off track. Trump would more aggressively cheer on Russia’s actions. And remember: precisely what was happening – whether Russia was the power behind Wikileaks or someone else – wasn’t 100% clear at the time to ordinary citizens. But at least Ryan and likely McCarthy as well had contemporaneous intelligence briefings which made it crystal clear. Both men were among the 12 members of Congress who were briefed on the Russian campaign in early September 2016 by Jeh Johnson (DHS Secretary), James Comey and Lisa Monaco (White House Homeland Security Advisor).

At that briefing, according to reports,

“The Dems were, ‘Hey, we have to tell the public,’ ” recalled one participant. But Republicans resisted, arguing that to warn the public that the election was under attack would further Russia’s aim of sapping confidence in the system.

Senate Majority Leader Mitch McConnell (R-Ky.) went further, officials said, voicing skepticism that the underlying intelligence truly supported the White House’s claims. Through a spokeswoman, McConnell declined to comment, citing the secrecy of that meeting.

As the sentences I’ve bolded indicate, McCarthy, Ryan and Mr. Evil–aka Mitch McConnell–have been aware of the nature and extent of Russian meddling since June of 2016. To get a complete and accurate picture of their disgraceful conduct, you need to click through and read the entire analysis, but as Marshall  concludes,

McCarthy and Ryan as well had clear warnings and a clear understanding of the Russian pattern of conduct and Trump’s probable connection to it. They would get a lot more evidence over coming months confirming this impression from June 2016. But they either ignored what they knew or decided to make a conscious decision to unknow it as they moved more and more firmly into lockstep support of Donald Trump. We see this especially clearly with McCarthy, the one who appeared most sure of the connection in this June 15th 2016 meeting and would become the most loyal and staunchest advocate for Trump in the ensuing months and years.

Treachery? Disloyalty? Faithlessness?

Ryan said the Republicans were all “family.” Right. Like the Corleones…

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