On Seeking Deliverance By Special Investigation

The Republic turns its lonely eyes to its hero, Bob Mueller, again. Thanks to the latest developments in the Paul Manafort and Michael Cohen cases, a new rash of analytical thinkpieces is upon us, all informing us in breathless tones about how the Mueller investigation is now moving into high gear, of how much legal jeopardy Trump could be facing, of how ‘impeachment is again on the table if Trump issues pardons’ and so on.

Speculation is permissible when it comes to our national politics; indeed, with our dreaded ‘twenty-four hour news cycles’ and our always-on, always-working internet news sites, all dependent for advertising revenue driven by the proverbial ‘clicks’, such speculation is indispensable: how else can time-slots on news channels be occupied, how else can viewers be driven back, again and again, to check on ‘the latest developments on Trump’s legal troubles’?

Unfortunately, the real legal trouble at hand is for the republic. Its legal and political institutions do not work. It has handed over control of its politics to a Federal prosecutor’s investigation, trusting him to set things right; it is afflicted by historical amnesia, for it seems not to remember that the law in this nation has never adequately curtailed the powers of the rich and powerful and famous, that its most heavy-handed dispensations are reserved for the relatively powerless. The president can issue pardons for all and any federal crimes, and his track record thus far–Joe Arpaio, Dinesh D’Souza–suggests he will do it again and again to save those who might be tempted to rat out on him. And again. For who can stop him? Not the threat of impeachment, for that will be stalled by his mates in the Senate. Not any legal threat to the power of the President and the Executive Branch by subpoena or actual indictment; we can be sure that if that constitutional question ends up in the Supreme Court, we will return with a 5-4 verdict handed down by a handpicked bench. When the smoke clears, we will find the Trump family standing, protected by the legal advice tendered to the Executive Branch by the Office of Legal Counsel, by a phalanx of expensive lawyers. You might hold out the fond hope that Mueller will drive the Trump businesses bankrupt, that he will temper the carpetbagging tendencies of the Trump offspring; but again, here the history of actual persecution of corporate offenders should calm us down all over again.

The lesson here, as it has been for a while, is to step back from the notion of the law and the legal system doing the business of politics. Trump will not be defeated by the rule of law; neither will the real culprits in all of this, the Republican Party. They will only be beaten by a coherent political platform, delivered clearly, loudly, and repeatedly to the folks that really matter: the electorate. The rest of this ludicrous sideshow is an employment scheme for overpaid lawyers and legal commentators.

Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

Twenty Seven Years On, Old White Misogynists Still Get To Send Liars To The Supreme Court

Twenty-seven years on, little has changed in America. Old white men still get to make liars into Supreme Court Justices. Indeed, things have worsened. Back in 1991, the Senate merely elevated a serial sexual harasser to the Supreme Court. Now, they get to send lying, rapey fratboys to the bench. I suppose that’s not so surprising when our President is also a ‘man’ who routinely sexually assaults women. And the US Senate continues to be packed with misogynists.

Brett Kavanaugh, who give ample evidence yesterday that he is a unhinged, vengeful, and demented Republican hack, also established yet again, by means of his constant evasions and his repeated obfuscations, that he was guilty of the charges Christine Blasey Ford‘s powerful testimony had laid against him. On nine separate occasions, he filibustered when asked if he would support a full FBI investigations into the ‘charges’ he was facing. For a man who was supposedly so upset that his good name had besmirched, who was ready to swear on God–though this must be reckoned our culture’s most useless oath-taking of all–that he was innocent, he was remarkably unenthusiastic about the prospects of an inquiry that would support his claims. He knows that once a full FBI investigation is launched, the likes of Mark Judge will not escape inquiry or subpoena; witnesses will be questioned closely; corroborative evidence will mount. And a far more comprehensive picture will emerge of the kind of man the Senate is sending to the Supreme Court.

Kavanaugh did precisely what one would expect a guilty liar to do. He knows that the political calculus favors him. He is backed by a serial sexual abuser and harasser and the Republicans in the Senate. Kavanaugh knows that once he is nominated the game is up; he will not face any threats to his lifetime tenure on the Supreme Court. The Democrats, were they to come to power in 2018 or 2020, in the House and Senate, will not pursue impeachment proceedings against him. They will be too busy engaged in a ‘healing’ process, in ‘moving on.’ All Kavanaugh had to do–and he did just that–is continue to lie, deny, obfuscate, evade, and of course, to show that he is a good little Trumpkin who has learned the right lessons from his master, be as offensive and deranged as possible. Most usefully, that would send a loud and clear signal to the folks on Fox that he belongs on the Supreme Court; they can be counted on to break out the pom-poms and assemble a cheering squad as quickly as possible.

What a contrast yesterday’s hearing provided: Ford was dignified, knowledgeable, and polite; she elevated the proceedings. Kavanaugh bragged, preened, yelled, interrupted, condescended, refused to answer questions, and ranted; he dragged the proceedings down into the basements of the many houses where he and drunken buddies assaulted women.

Stand by for photographs of Brett Kavanaugh, Donald Trump Jr., and Stephen Miller celebrating his confirmation with a few ‘skis’ at a DC watering hole. Our ‘republic’ has the leaders and judicial sages it deserves.

A Winning Liberal Strategy For 2020: Scolding The ‘Hard Left’

With the 2018 elections only a few months away and with the 2020 election season about to commence, concerned citizens should begin devising strategies for wresting back control of the House, the Senate, the White House, and many blocks of affordable housing in Washington DC back from the feckless Republicans dunking the American republic in the Trump swamp. Fortunately for Democratic voters, liberals, progressives, members of the ‘hard left,’ and sundry other disaffected Americans, a winning strategy has already been devised by those who voted for Hillary Clinton in the 2016 elections. The simplicity of this strategy is bracing; it requires little to implement, and can be carried out all day from home, while traveling or commuting, or in-between breaks at work.

Here is how it goes: on social media and indeed, on all available media outlets, blame the loss of the 2016 election not on those who voted for Donald Trump but rather on those who did not vote for Hillary Clinton. (This strategy does require the person doing the blaming to overlook the fact that a large-scale political event like a once in four years presidential election is massively overdetermined with multiple factors playing significant causal roles–like the design of the American electoral system or campaign strategies of choice. Be that as it may, such considerations are mere distractions to decisive action in these times.)

This blaming can proceed along several axes: an easy one is to pick one out of the long list of political, social, economic, and legal disasters that have befallen the Republic since that fateful November 9th in 2016, and to say “This is on you <Bernie bros, doctrinaire leftists, Marxists, postmodernists, or whatever>!” A variant of this is “Well, I hope you are happy, Bernie-Jill Stein voter-bro, you got what you wanted!” or to mutter “But, but, her emails!” (The latter, however, suffers from a simple confusion; the ’emails’ were of great concern to Trump voters–well known for being sticklers for security in all matters pertaining to internet communications–so the liberal scold here runs the risk of not directly addressing the demographic he or she would like to castigate.)

The success of this strategy is all but foretold. After all, not only did this sort of premptive scolding work to great effect in the lead up to the 2016 election, but as a vast literature on political and community organizing shows, shaming, blaming, and scolding are proven strategies for building broad political coalitions. Such imprecations always make their target eager to build alliances with those doing the blaming; their moral and political faults so clearly identified and laid out for all to see, they can now return to the fold with their tails tucked between their legs, all the more enthusiastic about the education they are to receive in how to correctly exercise their adult electoral franchise.

Readers will be happy to know that the implementation of this tactic is well under way. Justice Anthony Kennedy’s retirement appears to have been the flag drop, and we’re off. Time to sit back and dream about impeachment, veto-proof legislation, and a huge, massive, bomb of a blue wave.

The Republican Base’s Malevolent Algorithm

An entirely unsurprising poll shows that sixty-seven percent of the registered Republicans in the US support the current administration’s policy of separating children from their undocumented immigrant (or asylum seeking) parents at the border. (Those children are then imprisoned in cages in concentration camps with no plans for their release or reunification with their parents.) This poll supplements an essay on Stephen Miller whose headline reads ‘The Outrage Over Family Separation Is Exactly What Stephen Miller Wants.”

It will ‘fire up the base,’ you see, and bring them out in numbers for 2018.

The ‘base’ is, of course, why Trump will never be impeached by the Republican Party; it brought Trump to power; it will keep him in it. This is democracy in action; at its ‘best.’ The ‘people’ have spoken–through an electoral system of sorts–and we know what they want. The ‘base’–the ‘fuck your feelings’ crowd–reliably dislikes its Other: the libtards, the bleeding hearts, the snowflakes, the gays, the blacks, the Spanish-speaking, the feminists, the social justice warriors, the Marxists, the postmodernists, the coastal elites, the teachers, the unions, the gun control freaks, the atheists, the campus radicals, the brown, the immigrants (undocumented or otherwise.) The list goes on.

The reason for cashing out the content of the vox populi as a long list of dislikes and resentments is quite simple: this animosity toward its Other animates the ‘base’; apparently, it is the only policy justification it requires. A simple mechanical test for policy evaluation emerges: Does policy X cause fear, anger, dismay among members of the list above? Does it cause them to issue denunciations and condemnations of the Great Leader? Then it must be Good; if not, it must be Bad. Legal academics and concerned philosophers of technology spend a great deal of time pondering the problem of how to regulate automated decision-making; this is one algorithm for political decision-making that seems to have slipped under their radar. The perversity of this politics might make some parents recall the days of using the infamous ‘reverse psychology’ on a recalcitrant toddler; if you want them to do X, you must suggest that they do Y; the immature toddler, unable to realize he or she is being played, does instead. But comparisons and analogies with toddlers are ultimately unsatisfying; toddlers are also quite cute and entertaining and cuddly at times, and the Republican ‘base’ is anything but. Toddlers grow and mature; the ‘base’ appears to prefer curdling.

The presence of the ‘base’ and its frightening acquiescence to any moral atrocity as long as it meets the requirements noted above render wholly ineffective any political strategy that aims to change the Republican Party’s course by shaming it or pointing out its hypocrisies or inconsistencies. (On Twitter, a whole phalanx of tweeters is dedicated to racking up high RT counts by indulging in precisely such activity.)

Fortunately for the US, not all of its citizens are members of the base. Unfortunately for the US, all too many are. Trump will serve at most till 2024; the ‘base’ will be around much longer.

Confessions Of An American Ambien Eater, By Roseanne Barr

I here present you, courteous net surfer and peruser of the productions of bloggers, with the record of a remarkable period in my life: I trust that it will prove not merely an interesting record, but useful and instructive too. That must be my apology for breaking through that delicate and honourable reserve which restrains us from the public exposure of our own errors and infirmities.  Nothing, indeed, is more revolting to American feelings than the spectacle of a human being obtruding on our notice her moral ulcers or scars; for any such acts of gratuitous self-humiliation from those who can be supposed in sympathy with the decent and self-respecting part of society, we must look to our talk shows, our Twitter feeds, our Facebook feeds, our blog pages. All this I feel so forcibly, and so nervously am I alive to reproach of this tendency, that I have for many months hesitated about the propriety of allowing any part of my narrative to make its way online.

Truth be told, there is only one confession to be made, and it will have to do for now, so heavily does the burden of it bear upon me. For many years now, I have consumed the magical potion of Ambien to soothe my easily inflamed nerves; it has induced calmness, a soothing caress of the brow, a gentle lulling to rest in dreamland, a succor eagerly welcome by a vexed and anxious soul like mine. I do not consume Ambien in solitude; there are many fellow sufferers like me who also partake of its healing qualities. But I’m most decidedly alone in my unique and singular experiences, which have now come to haunt me for the spotlight they have shown on my soul, thus revealing its darkest recesses, domains I had thought I would not be exposed to ever again (since that fateful day on the couch in the Upper West Side clinic when I first became privy to their inclinations.)

For I have noticed for some time now, that to partake of Ambien is to engage in a mode of introspective analysis that forces deep and repressed feelings, unconscious ones, to the surface of my conscious sensibility. So powerful is this effect that my bodily being is taken over, my limbs begin to move, my tongue to speak, all of their own accord.  Because I communicate as often with my thumbs as I do with my tongue, Ambien has made me ‘talk in tongues’–with my thumbs, on the keypads of modern smartphones. And the words it induces me to type reveal my soul to me. Sometimes I find out I respect the gibbering opinions of orange-haired fascists, sometimes I find myself to be a clumsy racist; mostly, I’ve found out that I’m not very funny at all, that my glory days, such as they were, are long gone, that I’m living on a reputation borrowed from the past.

But mostly, it is the witless dark bottom of my soul that has been the most disturbing vision of all in my Ambien-infused ambulations.

Note #1: My apologies to the literary estate of Thomas De Quincey for liberally plagiarizing the words they so carefully administer.

Trump’s Legal Escape From ‘Stormy’ Weather

Rudy Giuliani’s supposedly unhinged and indisciplined rant on the Sean Hannity show opened up a legal path for Donald Trump to extricate himself from La Affaire Stormy Daniels with minimal legal jeopardy. By admitting that he recompensed Michael Cohen, and thus admitting knowledge of the contract, Trump makes the non-disclosure agreement with Stormy Daniels valid, and thus ensures she is still bound by its non-disclosure terms–even as he simultaneously denies ever  having had an affair with her. Moreover, even if his recompensing Cohen can be viewed as a violation of campaign finance laws, Trump may get off with merely a misdemeanor violation and not suffer a felony conviction.

Two ugly facts conspire to make such an escape for Trump possible: it has been assumed thus far that Trump would not ‘fess up to knowledge of the contract with Stormy Daniels because to do so would be to submit to the embarrassment of having to admit that he had an affair, or at least a sexual encounter with her, which he then sought to cover up with a pay-off and a non-disclosure agreement, but in point of fact, Trump and his team have realized that there is no embarrassment in simply denying any such ‘contact’ took place. They can call Stormy Daniels a liar and rely on their usual obfuscations to do the rest of the work; for the Republican base, the misogynistic assessment of her as ‘only a porn star’ is enough. The claim that a non-disclosure agreement was the best way to get a ‘hustler’ or a ‘shyster’ to ‘shut up’ will find favor with the Republican ‘base’ quite easily. So the ‘escape’ picture emerges: the non-disclosure agreement was made ‘legally’ to silence a nuisance; the president did speak falsely on occasion, but never under oath in a court of law; his conversations with reporters are like his other lie-ridden interactions with the media, that is, nothing distinctive. Moreover, we can rely on the legal system to deliver the lightest slap on the wrist possible to Trump when it comes to violations of campaign finance law; the rigorous conditions of ‘knowingly and willingly’ required for a felony violation will be hard to meet. The payments Trump made to Cohen can be ‘contextualized’ in some fashion to make them ever so more ‘appropriate’ and not transgressive of legality; they can be made to look less like flagrant violations of campaign finance law if dressed up with the right kinds of  language.

No matter what the political costs, Trump’s legal team has at least devised a scheme for reducing their client’s legal jeopardy; it ‘works’ in conjunction with a particular social setting in which he can also rely on his sentencing on any possible violations of campaign finance laws to be rather gentle. Embarrassment as a social force only works when the subject responds to it accordingly or sees it working as intended; in the current  media setting and in the current psycho-political mood no embarrassment is enough. All will be tolerated in the name of inducing liberal rage. Fuck your feelings indeed.