Plus ça change . . .

Having barely finished writing a review of First: Sandra Day O’Connor An Intimate Portrait of the First Woman Supreme Court Justice by Evan Thomas, the advancement of women’s rights was on my mind.

O’Connor, raised on a remote cattle ranch in the Arizona desert, finished her undergraduate studies and earned her law degree at Stanford University in six years, graduated third in her class and was only 22 years old! A newly-minted lawyer with that record could expect to find a good job at a prestigious law firm, right? Wrong. It was 1952, and no established law firm would hire a woman lawyer.

Determined to work in the profession she had prepared for, O’Connor opened her own firm with another woman, setting up shop in a mall. Later, she found work in the government, and later still, using her shrewd political skills and aided by powerful contacts, she was appointed to fill a vacant seat in the state senate. Within three years, she became the first woman ever to be majority leader in a state senate. It didn’t take long before she ascended to the U.S. Supreme Court as the first woman justice.

At the Court, O’Connor voted mostly with the conservatives during her first decade, satisfied with incrementally advancing the cause of women. With the passage of time, however, she began tacking to the left. Though a conservative, she evolved to occupy the space between conservatives and liberals, becoming the swing vote that determined the outcome in 330 cases, often championing the rights of women, children, gays and minorities.

O’Connor’s frustration at still not being able to land the job she wanted as a lawyer even 12 years after her graduation in 1964 came to mind when I saw this tweet by @sarahoconnor, a reporter for the Financial Times:

In 2019. Still blind. Or worse.


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Bring on the Mueller Report

Please, Counselor Mueller, show us your report
Barr’s letter is duller and much, much too short.

  For months we’ve been waiting,
  we’re all speculating.
  Now Barr's arrogating
  the right to decide, even hide,
  the fruits of your labors
  —This we can't abide!



Barr’s stalling,
stonewalling,
appalling!
We need to see what you wrote.
Barr's conclusions are spurious,
they make us furious.
His excuses won’t float.

Now
Subpoenas are flying,
There'll be no denying.
Nadler is on it, Schiff and Cummings too--

Show us, show us, show us what is true!

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The unbearable mystery of Mueller

Special Counsel Robert S. Mueller
Photo credit: USAToday

For almost two years Democrats waited with apprehension and Republicans with dread for Special Counsel Robert Mueller to conclude his investigation into Russian interference in the 2016 election. When the day finally came, Attorney General William Barr received the report. Two days later, he summarized the conclusions in a four-page letter. Republicans were elated, Democrats were stunned, and the president was jubilant.

Barr wrote that Mueller found neither Trump nor members of his campaign had conspired with the Russians. 

But the other charge, obstruction of justice, remained unresolved. Mueller wrote

while this report does not conclude that the President committed a crime, it also does not exonerate him [emphasis mine]. 

Whereupon Barr took it upon himself, in consultation with Deputy Attorney General Rod Rosenstein, to go where the Mueller Report had not. He concluded that President Trump had not obstructed justice, despite Mueller’s refusal to exonerate him. 

Why did Special Counsel Mueller decide not to decide? Prosecutors normally prosecute.

A Special Prosecutor is appointed when an important investigation demands that it be led by someone deemed to be completely independent and resistant to countervailing political winds. By not resolving the question of Trump’s obstruction of justice, Mueller obviated the purpose of having an apolitical Special Counsel. The final decision now falls to a Trump appointee, the Attorney General, or Congress, which is nothing if not political. 

Barr is hardly unbiased. Before his nomination, he wrote an unsolicited memo that called Mueller’s obstruction of justice investigation “fatally misconceived.” Barr wrote that, given the executive power inherent in the office, it is impossible for the president to obstruct justice. It was completely within Trump’s powers as head of the executive branch, Barr wrote, to ask FBI Director James Comey to go easy on then-National Security Advisor Michael Flynn and fire Comey for his suggestion that the President had acted inappropriately.  

Barr believes that there cannot be obstruction without an underlying crime. Once Mueller cleared Trump of collusion, the underlying crime was gone, so ipso facto  Trump could not be obstructing justice.

It was clear early on that members of the Trump campaign had meetings with Russian nationals and tried to hide and then deny those actions. The infamous June 9, 2016, meeting in Trump Tower was one of these. It was attended by three senior members of the Trump campaign (Donald Trump Jr, son-in-law Jared Kushner and then-campaign manager Paul Manafort) and a Russian government lawyer. Trump Jr had written that he would love to receive opposition research on Hilary Clinton from the Russians. Trump and his aides concocted several stories to explain the meeting, but none of the lies was able to withstand the truth eventually uncovered by tireless journalists.

We also know that during the campaign the president was working on a lucrative business deal, the erection of a Trump Tower in Moscow. Was he compromised by his eagerness to do business with Putin? Was making lots of money the only motive for Trump’s deference to the Russians?

Did Mueller fail to draw a conclusion because it might have prejudiced ongoing investigations he had referred to other jurisdictions? Would a conclusion have contaminated the jury pool for a future grand jury?

The Democrats will have to choke on these questions and more until, if ever, the full report is released. House committees may carry on the multiple investigations they have begun. They may call Mueller to testify, despite Barr’s opposition.

But if the Dems are wise, they will concentrate on giving the voters what they want. Healthcare leads the list. Trump may have given Democrats a gift by proposing to completely repeal the ACA / Obamacare. Voters are much more interested in the bread-and-butter issues that affect them directly every day than they are in the political bickering in Washington. 

If American democracy can withstand the Trumpian onslaughts, an accurate history of the Trump era will one day be written.

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Bullets vs gender

On March 16, Rep. Steve King (R-IA) posted this inflammatory image on his Facebook page. A member of the US Congress, sworn to uphold and defend the Constitution, King implicitly endorsed a new War Between the States. Yes, you read that correctly. 

King has a long history of making provocative assertions, racial and cultural insults. He uses racist language, demeans Latinos, demonizes Muslims, and promotes neo-Nazis and white supremacists on Twitter. He has a confederate flag on his desk. Long before Trump made building a border wall, eliminating birthright citizenship and persecuting undocumented immigrants the pillars of his presidential campaign, Steve King had embraced these positions. 

In an interview with The New York Times last January, King said, “White nationalist, white supremacist, Western civilization — how did that language become offensive?” That was the final straw. The Republican leadership had given King a by for years. It was politically expedient. The Iowan was a kingmaker. But finally those remarks cost him his committee assignments. The Republicans may have found their spines because the election was over.

The differences between Republicans and Democrats have never been so stark, the parties so hostile to each other. The country is increasingly more polarized, to an extent most reasonable non-extremists never thought possible. So much so that I am no longer sure a civil war couldn’t become a reality. We already have violence and aggression, shameful disrespect and outright hatred of the Other, i.e., people with brown skin or opposing viewpoints. Mass shootings are now commonplace.

Without a leader to show the way, but instead with a president who personifies intolerance, exacerbates ill will and incites violence, American democracy is on its way towards morphing into a repressive regime, even without a coup or an insurrection. 


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Trump’s elusive wall


Trump promoting his wall -USA Today

Donald Trump needs The Wall that he’s been hawking since he entered the presidential race, but the Democrats, led by Speaker Nancy Pelosi, won’t let him have it. Like a spoiled brat who can’t get his way, the President had a tantrum. He retaliated by shutting down the government.

Donald Trump hates to admit he made a mistake. He rarely apologizes. Now he’s boxed himself in by saying he won’t reopen the government that he himself shut down unless he gets his Wall, but the Democrats are standing firmly against a wall they say would be ineffective. Negotiations are at an impasse. Trump is holding 800,000 federal workers hostage to something that began as a mnemonic device, a way to remember what he was supposed to say.

Why is Trump so enthralled by his Wall?

Before he officially became a candidate, Trump’s political advisers realized that immigration would resonate with conservatives and unemployed workers left behind in a growing economy that did not need their skills. In order to keep the easily distracted candidate on message, his handlers hit upon The Wall — a simple concept, an easy-to-remember four-letter word. It appealed to Trump the Builder — Build the Wall! — and the crowd’s enthusiastic response to the slogan converted it to a meme that has practically become a symbol for Trump himself.

The Trump Tower escalator descended with the aspiring candidate to a waiting crowd so that a beaming Trump could announce his candidacy. He described the evils he said were afflicting the country and attributed them mostly to immigrants who he said were invaders that arrived in hordes at the southern border. To stymie them Trump envisioned a “beautiful” Wall he would erect to “Make America Great Again” by walling out undesirables. America for Americans! (Never mind that America was built by immigrants and most Americans are descended from them.)

The Wall has become a convenient way for Trump to distract the country when new revelations from the Mueller investigation grab the headlines or challenge his version of events.

Now Trump has seized on the expedient of declaring a national emergency so that he will be able to use expanded executive power. The White House is looking for options like using military manpower and funds designated for other projects. The Pentagon may not look favorably on losing funds needed perhaps to build new barracks.

Democrats will lose no time before they challenge Trump in court. The president cannot overrule Congress by appropriating funds for a project it has not approved without precipitating a constitutional crisis. We are again in uncharted waters.


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Mending Wall by Ben East

Author, teacher and diplomat Ben East reflects on two dissimilar walls: one a poem by Robert Frost, the other the obsession of Donald Trump. With admiration and his permission I am reblog it below.

Only 2,000 Miles to Go

Robert Frost’s great poem, outwardly a critique on a pre-existing wall, arguably has little to do with the hypothetical wall being proffered today.

But Frost’s wall stands for so much more, and the critique applies more universally than merely to stone piled on stone. The critique can be said to include any barrier that divides us. The critique includes blind adherence to tradition. The critique marvels at the depravity and ignorance displayed by our fellow man.

I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.

Frost’s narrator, in his easy country voice, recognizes that nature itself opposes these barriers. Hunters or weather or the invisible hand of the outdoors, the ordinary stuff of time’s passage, work in concert against the wall.

The narrator resonates common sense in questioning why his neighbor would rebuild the wall between their properties. And this same good sense reveals the answer: the neighbor is an individual of dim intellect and long habits.

He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, “Good fences make good neighbours.”

I’ve always loved this poem. Today I love it more than ever. I hear in this lament the nation’s former poet laureate snickering at today’s gross display of race-baiting, fear-mongering, ignorance, and megalomania.

Something there is that doesn’t love a wall…

Mending Wall
-Robert Frost

Something there is that doesn’t love a wall,
That sends the frozen-ground-swell under it,
And spills the upper boulders in the sun;
And makes gaps even two can pass abreast.
The work of hunters is another thing:
I have come after them and made repair
Where they have left not one stone on a stone,
But they would have the rabbit out of hiding,
To please the yelping dogs. The gaps I mean,
No one has seen them made or heard them made,
But at spring mending-time we find them there.
I let my neighbour know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.
And some are loaves and some so nearly balls
We have to use a spell to make them balance:
“Stay where you are until our backs are turned!”
We wear our fingers rough with handling them.
Oh, just another kind of out-door game,
One on a side. It comes to little more:
There where it is we do not need the wall:
He is all pine and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, “Good fences make good neighbours.”
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
“Why do they make good neighbours? Isn’t it
Where there are cows? But here there are no cows.
Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
Something there is that doesn’t love a wall,
That wants it down.” I could say “Elves” to him,
But it’s not elves exactly, and I’d rather
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, “Good fences make good neighbours.”

_____________________________________________________

Ben East published his first novel, Two Pumps for the Body Man (New Pulp Press, 2016), as a Bush-Cheney era black comedy. Set in Saudi Arabia, Two Pumps does for American diplomacy and the War on Terror what Catch-22 did for military logic during the Second World War. 

His second novel, Patchworks (Moonshine Cove Publishing, Sept 2017), examines American gun culture in a similar light.

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Can Trump declare a state of emergency?

photo by Jonathan Ernst/Reuters

Upon reading Elizabeth Goitein’s “What the President Could Do If He Declares a State of Emergency” in The Atlantic, my dismay spurred me to write the previous post. In “Our democracy may not be as robust as we think,” I considered a few of the disasters Trump would be empowered to inflict on the American public by declaring a state of emergency.

After publishing the post, I began to read The New York Times, and almost immediately came upon Bruce Ackerman’s “No, Trump Cannot Declare an ‘Emergency’ to Build His Wall,” The title promised to contradict all I had written based on Goitein’s article.

But Ackerman’s article was nuanced.

He refers to laws that would seem to prevent the president from suspending civil liberties and imposing martial law or build his wall. The first is a provision in a statute of 1878 that expressly forbids the willful use of “any part of the Army or the Air Force to execute a law domestically” unless “authorized by the Constitution or an act of Congress.” Then he refers to another statute from 1807 that directs the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” will “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity … unless authorized by law.”

Would Trump respect these statutes? For that matter, is he even aware of them? Is anyone in his cabinet or on his staff sufficiently conversant with the law to attempt to curb his illegal impulses? We have seen Trump compose executive orders and issue commands without seeking legal advice, unaware that he may be violating the Constitution or the laws of the land. His M.O. is “Act first, think later (if ever).” Knowing the presidency confers great power, Trump seems to think there are no restraints. If he were to declare an emergency, there would be a delay before the courts or Congress could thwart him. 

Ackerman admits that the laws he refers to “do contain a series of carefully crafted exceptions to the general rule.” He concedes that Trump might take advantage of the exception which authorizes the military to detain suspected terrorists. That’s not a stretch, since the President has repeatedly characterized migrants who cross the border illegally as terrorists.

But Ackerman believes that “it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.” It is “unconscionable” for a moral and compassionate person, but Trump has repeatedly demonstrated that he is neither. He has already gassed them.

The National Emergencies Act “formalize[s] the power of Congress to provide certain checks and balances on the emergency powers of the President,” writes Ackerman. It gives the House the right to rescind a state of emergency declared by the president and requires the Senate to ratify within 15 days. It seems foolishly optimistic to trust that the the legislators in the current divided Congress could come together in both houses long enough to pass a resolution.

Yet, in a neat twist of logic, Ackerman argues that Congress would intervene:

Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.

Hmm. That remains to be seen.

Finally, Ackerman concedes that, despite the legal obstacles that confront him, Trump could well declare a state of emergency. “He will likely take the most irresponsible path possible, issuing his ‘national emergency’ through a tweet or a question-begging written pronunciamento.”

We have reason to be very concerned.

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