More Legal Problems For Donald Trump

Donald Trump’s failure to follow the Constitution is causing him further legal problems. He is now facing a lawsuit for violating the emoluments clauses of the Constitution in accepting payments from foreign governments. The Washington Post reports:

Attorneys general for the District of Columbia and the state of Maryland sued President Trump on Monday, alleging that he has violated anti-corruption clauses in the Constitution by accepting millions in payments and benefits from foreign governments since moving into the White House.

The lawsuit, the first of its kind brought by government entities, centers on the fact that Trump chose to retain ownership of his company when he became president. Trump said in January that he was shifting his business assets into a trust managed by his sons to eliminate potential conflicts of interests.

The lawsuit, a signed copy of which Racine and Frosh provided to The Washington Post on Sunday night, alleges “unprecedented constitutional violations” by Trump. The suit says Trump’s continued ownership of a global business empire has rendered the president “deeply enmeshed with a legion of foreign and domestic government actors” and has undermined the integrity of the U.S. political system.

Do The Democrats Have A Death Wish?

The Democratic Party not only lost the fight over who would fill Antonin Scalia’s Supreme Court seat, but they might also be conceding defeat for the future. Talking Points Memo quotes Senator Ed Markey:

“When the Democrats return to the majority and capture the presidency, which we will, that day is going to arrive, we will restore the 60-vote margin,” Markey told MSNBC’s Katy Tur. “We will ensure that, for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people that are nominated, rather than just someone who just passes a litmus test.”

Do Democrats secretly wish to lose?

Assuming that he isn’t saying this for political posturing without any intent to do so, and that his views are representative of the party, this makes no sense. Why allow the Republicans to confirm Justices with only 51 votes, but then go back to requiring 60 votes to confirm liberal Justices to undo the harm caused by the Republicans?

Maybe Markey wants to stand up for principle, but if so there are far more fundamental liberal principles which the Democratic Party has repeatedly compromised on than the view that a Supreme Court Justice should require sixty votes for confirmation. Maybe this could be reconsidered at some future point should the Republican Party return to sanity, but this is not the time to make such a decision. In the meantime, perhaps the Democrats should stick to principles on matters such as defending civil liberties and reversing the surveillance state. Perhaps they should fight to avoid repeating the mistakes of the Bush years in intervening in the middle east. Instead we have Nancy Pelosi and Chuck Schumer supporting Trump’s airstrikes in Syria, and other Democratic leaders including Howard Dean attacking Tulsi Gabbard who has been promoting peace.

Of course we should not be surprised, considering how the Democratic establishment rigged the 2016 nomination for Hillary Clinton, who both was to the right of Antonin Scalia on civil liberties, and favored far more extensive, and dangerous, intervention in Syria than the attack by Donald Trump. Of course that was also another example of the Democrats showing an inability to win, in nominating the worst possible candidate to run against Donald Trump. If you are going to rig a party’s nomination, at least do so for a candidate who can win–unless you have a death wish.

Stephen Colbert Shows That John McCain, Like Donald Trump, Is A Stupid Idiot

With all the bad things which happened this week, we should be relieved that the term nuclear option did not pertain to this week’s military action, in which Donald Trump showed his compassion for the Syrian children he has banning from entering the country by bombing Syria. Stephen Colbert explained the nuclear option, which culminated in the confirmation of Neil Gorsuch to the Supreme Court, in the video above. He also managed to show that John McCain is a stupid idiot.

The news started out good with the Democrats denying Gorsuch the sixty votes needed. As Colbert put it,  “Whoo, they did it, hell yeah! The Democrats won, for about an hour.”

The Republicans responded with the nuclear option:  “It’s like the saying goes. If at first you don’t succeed, change the rules and now you win.”

Initially not all Republicans supported this. Colbert quoted John McCain: “I would like to meet that idiot, I would like to meet that numbskull that would say that. That after 200 years of this tradition where the Senate has functioned pretty well. They think it would be a good idea to blow it up…Whoever says that is a stupid idiot.”

Colbert pointed out, “You have to be pretty dumb for John McCain to call you a stupid idiot, because he thought Sarah Palin could be president.” He then reported that McCain voted for the nuclear option and concluded,  “Senator McCain, In the words of an American hero, ‘You’re a stupid idiot.’”

Colbert then transitioned, “Speaking of stupid idiots, Donald Trump…”  See the video above for the rest.

As for McCain, if we need more evidence that he is a stupid idiot, today he praised Trump’s airstrikes against Syria.

The Authoritarianism Of Donald Trump

The Los Angeles Times has posted the third in a four part series criticizing Donald Trump. (Update: It now appears to be a six part series.) Yesterday I pointed out the first two parts on Our Dishonest President and Why Trump Lies. Part three is on Trump’s Authoritarian Vision. They started with the authoritarian mindset behind Trump’s campaign promises to unilaterally fix everything:

To Trump’s faithful, those words were a rallying cry. But his critics heard something far more menacing in them: a dangerously authoritarian vision of the presidency — one that would crop up time and again as he talked about overruling generals, disregarding international law, ordering soldiers to commit war crimes, jailing his opponent.

Trump has no experience in politics; he’s never previously run for office or held a government position. So perhaps he was unaware that one of the hallmarks of the American system of government is that the president’s power to “fix” things unilaterally is constrained by an array of strong institutions — including the courts, the media, the permanent federal bureaucracy and Congress. Combined, they provide an essential defense against an imperial presidency.

Yet in his first weeks at the White House, President Trump has already sought to undermine many of those institutions. Those that have displayed the temerity to throw some hurdle in the way of a Trump objective have quickly felt the heat.

Consider Trump’s feud with the courts.

He has repeatedly questioned the impartiality and the motives of judges. For example, he attacked the jurists who ruled against his order excluding travelers from seven majority Muslim nations, calling one a “so-called judge” and later tweeting: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

It’s nothing new for presidents to disagree with court decisions. But Trump’s direct, personal attacks on judges’ integrity and on the legitimacy of the judicial system itself — and his irresponsible suggestion that the judiciary should be blamed for future terrorist attacks — go farther. They aim to undermine public faith in the third branch of government.

The courts are the last line of defense for the Constitution and the rule of law; that’s what makes them such a powerful buffer against an authoritarian leader. The president of the United States should understand that and respect it.

The article went on to discuss other institutions under attack by Trump:

  • The electoral process
  • The intelligence community
  • The media
  • Federal agencies

They concluded with a look at the checks on presidential power, wondering if they will be enough:

Trump betrays no sense for the president’s place among the myriad of institutions in the continuum of governance. He seems willing to violate long-established political norms without a second thought, and he cavalierly rejects the civility and deference that allow the system to run smoothly. He sees himself as not merely a force for change, but as a wrecking ball.

Will Congress act as a check on Trump’s worst impulses as he moves forward? One test is the House and Senate intelligence committees’ investigation into Russia’s meddling in the presidential election; lawmakers need to muster the courage to follow the trail wherever it leads. Can the courts stand up to Trump? Already, several federal judges have issued rulings against the president’s travel ban. And although Trump has railed against the decisions, he has obeyed them.

None of these institutions are eager to cede authority to the White House and they won’t do so without a fight. It would be unrealistic to suggest that America’s most basic democratic institutions are in imminent jeopardy.

But we should not view them as invulnerable either. Remember that Trump’s verbal assaults are directed at the public, and are designed to chip away at people’s confidence in these institutions and deprive them of their validity. When a dispute arises, whose actions are you going to consider legitimate? Whom are you going to trust? That’s why the public has to be wary of Trump’s attacks on the courts, the “deep state,” the “swamp.” We can’t afford to be talked into losing our faith in the forces that protect us from an imperial presidency.

These criticisms of Donald Trump are very similar to those I quoted a few weeks ago from Brian Klaas, a fellow in comparative politics at the London School of Economics, and author of The Despot’s Accomplice: How the West is Aiding and Abetting the Decline of Democracy. I have also discussed the increased interest in dystopian novels about falling into authoritarianism, including warnings from Philip Roth.

While Trump is not the only threat to liberty on the political scene, at least Trump is blatant in his attacks, and there is wide-spread understanding of the threat he presents. This has helped to mobilize opposition to him very early in his term.

Bad Day For Trump’s Immigration Ban And Trump Conflicts Of Interest

There were two setbacks for the Trump administration today. The more significant was an appeals court ruling against Trump’s travel ban:

A three-judge federal appeals panel on Thursday unanimously refused to reinstate President Trump’s targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.

The ruling was the first from an appeals court on the travel ban, and it was focused on the narrow question of whether it should be blocked while courts consider its lawfulness. The decision is likely to be quickly appealed to the United States Supreme Court.

That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.

I’ve seen some Trump supporters write this off to a decision of a liberal court. Note that this three judge court ruled unanimously on the issue, including a judge appointed by George W. Bush. (The other two were appointed by Carter and Obama). This ruling was not partisan, considering how blatantly Trump’s Muslim ban violates the Constitution.

Also today, Kellyanne Conway was “counseled” after she broke ethics rules in promoting Ivanka Trump’s products while speaking at the White House.

The White House on Thursday said a top adviser to President Trump had been “counseled” after using a television appearance from the West Wing to promote the clothing and jewelry line sold under the brand of Trump’s daughter…

Experts quickly seized on Conway’s remarks as a direct violation of Office of Government Ethics rules. Don W. Fox, a former OGE general counsel and now the office’s acting director, said Conway’s statements were “jaw-dropping” and “a clear violation of rules prohibiting misuse of public office for anyone’s private gain.”

Peter Schweizer, who has worked closely with Trump chief strategist Stephen K. Bannon and wrote a book, “Clinton Cash,” that was critical of donations to the Clinton Foundation, said, “They’ve crossed a very, very important, bright line, and it’s not good.”

“To encourage Americans to buy goods from companies owned by the first family is totally out of bounds and needs to stop,” Schweizer added. “Clearly, the Trumps feel some of this is related to politics. But whether that’s true or not, these marketing battles need to be fought by Ivanka and her company. They cannot and should not be fought by government employees and the White House.”

I imagine that being  Conway being “counseled” is comparable to when Hillary Clinton was told that she should be using a government server for her email when she was found to be ignoring this rule. Hopefully Conway pays more attention. More importantly, hopefully the entire Trump administration pays more attention–perhaps starting with Donald Trump releasing his income tax returns.

Realistically this is a relatively trivial incident. If anything, being promoted by Conway might even further reduce Ivanka’s sales, which have been suffering by the poor opinion about her father. What is more important are the vast conflicts of interest present in the financial interests of Trump’s family (along with the financial interests of some of his cabinet appointees).

Most of the examples will probably turn out to be more mundane actions in which government actions might benefit Trump’s business holdings. One of the more interesting examples was repeated in the same article linked above:

The Conway episode followed other instances in which Trump’s political rise and his presidency have provided a promotional platform for the family businesses.

On Monday, first lady Melania Trump filed a lawsuit accusing a British news company of publishing an inaccurate story that hurt her ability to take advantage of a “once in a lifetime opportunity” to build her brand of jewelry and accessories. The lawsuit said that the August 2016 article, which falsely suggested Melania Trump had once worked for an escort service, damaged her ability to build “multimillion dollar business relationships for a multi-year term” and damaged her brand during a time when Trump “is one of the most photographed women in the world.”

Trump’s Incompetence And Mental State Alarm Washington

Donald Trump continues to show both his bigotry and his incompetence in his attacks against the federal judges ruling on his travel ban. The Hill reports:

Trump argued the law gives him broad powers to control who enters and leaves the U.S.

“A bad high school student would understand this. Anybody would understand this,” he said.

Yes, a bad high school student very well might be fooled into thinking that Trump is right. Fortunately judges who went beyond high school to study law are more likely to understand how Donald Trump is violating the law and violating the Constitution.

If we can trust Huffington Post as a source, reportedly his own staff is alarmed at Trump’s conduct. Leaks include the content of a rather strange 3 am call:

President Donald Trump was confused about the dollar: Was it a strong one that’s good for the economy? Or a weak one?

So he made a call ― except not to any of the business leaders Trump brought into his administration or even to an old friend from his days in real estate. Instead, he called his national security adviser, retired Lt. Gen. Mike Flynn, according to two sources familiar with Flynn’s accounts of the incident.

Flynn has a long record in counterintelligence but not in macroeconomics. And he told Trump he didn’t know, that it wasn’t his area of expertise, that, perhaps, Trump should ask an economist instead.

The story goes on to describe how leaks are becoming commonplace because of government officials who are alarmed by Trump’s bizarre conduct:

Unsurprisingly, Trump’s volatile behavior has created an environment ripe for leaks from his executive agencies and even within his White House. And while leaks typically involve staffers sabotaging each other to improve their own standing or trying to scuttle policy ideas they find genuinely problematic, Trump’s 2-week-old administration has a third category: leaks from White House and agency officials alarmed by the president’s conduct.

“I’ve been in this town for 26 years. I have never seen anything like this,” said Eliot Cohen, a senior State Department official under President George W. Bush and a member of his National Security Council. “I genuinely do not think this is a mentally healthy president.”

There is the matter of Trump’s briefing materials, for example. The commander in chief doesn’t like to read long memos, a White House aide who asked to remain unnamed told The Huffington Post. So preferably they must be no more than a single page. They must have bullet points but not more than nine per page.

Earlier in the week, Glenn Thrush and Maggie Haberman of The New York Times reported on the isolation of Donald Trump and difficulties faced by the Trump administration in its first two weeks:

Aides confer in the dark because they cannot figure out how to operate the light switches in the cabinet room. Visitors conclude their meetings and then wander around, testing doorknobs until finding one that leads to an exit. In a darkened, mostly empty West Wing, Mr. Trump’s provocative chief strategist, Stephen K. Bannon, finishes another 16-hour day planning new lines of attack.

Usually around 6:30 p.m., or sometimes later, Mr. Trump retires upstairs to the residence to recharge, vent and intermittently use Twitter. With his wife, Melania, and young son, Barron, staying in New York, he is almost always by himself, sometimes in the protective presence of his imposing longtime aide and former security chief, Keith Schiller. When Mr. Trump is not watching television in his bathrobe or on his phone reaching out to old campaign hands and advisers, he will sometimes set off to explore the unfamiliar surroundings of his new home…

The bungled rollout of his executive order barring immigrants from seven predominantly Muslim countries, a flurry of other miscues and embarrassments, and an approval rating lower than that of any comparable first-term president in the history of polling have Mr. Trump and his top staff rethinking an improvisational approach to governing that mirrors his chaotic presidential campaign, administration officials and Trump insiders said…

Cloistered in the White House, he now has little access to his fans and supporters — an important source of feedback and validation — and feels increasingly pinched by the pressures of the job and the constant presence of protests, one of the reasons he was forced to scrap a planned trip to Milwaukee last week. For a sense of what is happening outside, he watches cable, both at night and during the day — too much in the eyes of some aides — often offering a bitter play-by-play of critics like CNN’s Don Lemon.

Until the past few days, Mr. Trump was telling his friends and advisers that he believed the opening stages of his presidency were going well. “Did you hear that, this guy thinks it’s been terrible!” Mr. Trump said mockingly to other aides when one dissenting view was voiced last week during a West Wing meeting.

But his opinion has begun to change with a relentless parade of bad headlines.

Can a president whose reading is limited to single page memos make the changes needed to turn this around, or will he become increasingly isolated, perhaps to the point of talking to the pictures on the White House walls like Richard Nixon in his final days in office?

Clinton Ordered To Provide Written Testimony Regarding Use Of Private Email

Clinton Email Cartoon Deleted

Hillary Clinton might never get past the email scandal. The New York Times reports that a federal judge has ordered her to provide written testimony:

A federal judge on Friday ordered Hillary Clinton to provide written testimony under oath about why she set up a private computer server to send and receive emails while secretary of state, ensuring that the issue will continue to dog her presidential campaign until the eve of the election.

In a brief ruling issued on Friday afternoon, the judge, Emmet G. Sullivan of Federal District Court in Washington, approved a motion by the conservative advocacy organization Judicial Watch to pursue its vigorous campaign to expose Mrs. Clinton’s use of the private server. In addition to requiring her testimony in writing, the judge allowed the group to depose a senior State Department aide who had warned two subordinates not to question her email practices.

Both the the State Department Inspector General report and the FBI statement on the investigation revealed considerable impropriety on Clinton’s part, even if the FBI did not recommend criminal prosecution.

It was also revealed yesterday that Hillary Clinton had told the FBI that she used private email on the advice of Colin Powell. Powell denied any recollection of the conversation and expressed disapproval of the use of private email for classified information.

In an update to a post from earlier in the week, the sailor who tried to use the Hillary Clinton defense for mishandling classified information was unsuccessful. He has been sentenced to one year in prison. There were many differences in the cases, but the most significant is that he was a lowly Navy sailor and Clinton is in line to be Commander in Chief.

Adnan Syed, Subject of Serial Podcast, To Receive New Trial

Serial

If you listened to Season 1 of Serial, this will be major news. If you didn’t, the case probably won’t matter to you. The podcast looked at the case of Adnan Syed, who was convicted of murdering his girl friend, and cast doubts as to his guilt. The publicity from the podcast led to a reexamination of the case. Today a Baltimore judge vacated his conviction and granted him a new trial. The Baltimore Sun reports:

A Baltimore judge on Thursday ordered a new trial for convicted murderer Adnan Syed, adding a new chapter to a two-decade-old case propelled to international attention by the popular “Serial” podcast.

Syed, now 35, has been serving a life sentence since 2000, when he was convicted of killing ex-girlfriend Hae Min Lee the year before. The body of Lee, a classmate of Syed at Woodlawn High School, was found buried in Baltimore’s Leakin Park.

Retired Judge Martin Welch, who had denied Syed’s previous request for a new trial, vacated Syed’s conviction Thursday and said questions about cell phone tower evidence should have been raised by his trial team.

The ruling came four months after a hearing that also featured testimony from an alibi witness who had been featured in “Serial.”

The podcast was downloaded millions of times, drawing legions of devoted fans who scrutinized the case online.

Good News From Supreme Court On Abortion & The Typical News On Trump and Clinton

Abortion Sign

It was a good day with regards to reproductive rights as the Supreme Court struck down a law in Texas designed to restrict abortions by imposing absurd requirements on abortion clinics designed to make it too difficult to operate.  The New York Times reports:

The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion…

he Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion..

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

This law came from Republicans who claim to both oppose over-regulation of business and government take-overs of health care.

The New York Times also points out that the Court has leaned left with eight members when it avoids a tie.

Otherwise it was a typical day. Donald Trump said more stupid things, this time calling Elizabeth Warren a racist. Plus we have further evidence that Clinton was lying about her email as more examples were found of work-related email which appear to have been destroyed with the email Clinton claimed was personal. These stories come after too many examples of Donald Trump saying stupid things to list, and a similar report on Clinton’s email three days ago.

Implications Of The Death Of Supreme Court Justice Antonin Scalia

scalia-jpg

Supreme Court Justice Antonin Scalia was found dead at a Texas ranch where he was staying while on a hunting trip at age 79. He was appointed to the Court by Ronald Reagan in 1986. His conservative rulings have had a profound, and negative, effect on the country during that time.

The legal and political ramifications are likely to be enormous. The next several months could be dominated by a fight over confirmation of Obama’s appointment, likely expanding the range of issues which the presidential candidates must discuss over the next several months. Voters might think more about issues such as reproductive rights and voting rights, which could be greatly influenced by the balance of the court, during the election year.

Republicans might try to prevent any Obama appointee from being confirmed hoping that a Republican could be elected an make the next choice. Such obstructionism might also backfire against the Republicans, along with demonstrating how many of their views are not accepted by a majority of Americans. It is also possible that Democratic Senators will block right wing choices should there be a Republican president in 2017.

For the current year (and possibly beyond) this means one less conservative vote on matters the Supreme Court is now considering, including  abortion rights,  affirmative action, and another challenge to Obamacare. I also wonder to what degree Scalia was able to influence any swing justices to side with the conservatives. There is also the possibility of some matters coming down to a four to four tie.

The Washington Post had an article in December suggesting that  tie votes on the court, due to a vacancy, will favor liberals, even if the author doesn’t seem happy with that prospect:

Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals. Conservatives wouldn’t like the regime of liberal rulings that would govern in most of the nation without Supreme Court oversight. And the prospect of liberal dominance may actually stiffen the spine of the historically more accommodating Senate Democrats…

A Supreme Court vacancy would favor liberals, because an eight-member court would often divide 4 to 4, affirming the decisions of the predominantly liberal lower courts.

Ties would be most common if the vacant seat belonged to swing voter Kennedy. If Scalia were the one to leave, Kennedy’s conservative tilt would sometimes generate the ties, barring the occasional walkabout from Chief Justice John Roberts. And if Ginsburg or Breyer left, Kennedy would side with the three remaining liberals often enough to sometimes tie the court in important cases. In addition to his much-touted vote for same-sex marriage in Obergefell v. Hodges, Kennedy has voted with the liberals in civil rights and environmental cases, to rein in partisan redistricting and to grant Guantanamo prisoners the right to challenge their detention.

A tied Supreme Court traditionally issues a per curiam, or unsigned, decision affirming the ruling of the lower court. So under an eight-member court that regularly produced split decisions, each circuit would be like a little Supreme Court of its own. Obama has overseen a significant transformation of the federal courts, with nine circuits now dominated by Democratic appointments and only four by Republicans. On really important cases, the circuit courts are likely to meet en banc, with most or all of the judges sitting, meaning raw numerical dominance will always matter.

The 5th, 6th, 7th and 8th circuits, where conservative decisions would stand in the case of Supreme Court ties, mostly cover red states in the South and Midwest. Only some of the Great Lakes states are caught offsides. Meanwhile, the blue states on the coasts, along with purple Western states such as Colorado, are in liberal circuits. But here’s the kicker: Since most of the circuits are controlled by liberals, much of the conservative heartland is marooned in blue circuits. Arizona, Idaho and Montana are in the much-reversed liberal 9th Circuit. The entire Southeast, from Virginia to Florida, is covered by two circuits liberalized by Obama appointees. One liberal circuit, the 10th, has just one reliably blue state, New Mexico.

Update: Mitch McConnel says that a new justice should not be chosen until after the election.  SCOTUSbLog has more on cases currently under consideration. President Obama is about to speak as I am typing this, and is expected to say he will be nominating someone despite GOP objections.