How to Avoid a Trump Repetition

Talk about counting your chickens before they are hatched, but I think now is the time to start thinking abut the institutional changes that we can make that will prevent a repetition.

Establishing the validity of truth versus lies.  When the US Supreme Court liberalized libel law to project the media, little did it, or anyone understand that it was legalizing massive and uncorrected falsity.  We have to create some kind of procedural mechanism for the establishment of falsity.  My own thought is that it should be possible to bring a court action against the lie itself, in such a way that it is not about money, but about establishing truth.  Just think if such a mechanism existed to conclusively rebut the peddlers of the birther poison.  At a minimum it would give the fact checkers a common direction, and  finding to which debate opponents could appeal.

Wee tend to get deeply discouraged that around 40% of voters say they approve of Trump.  But remember that only a third of those say that his policies are what matters most.  The rest like the “personality”, whatever that means.

Remember, they met that personality on TV, and much of his early success was simply name recognition.  Remember how Mike Dukakis parlayed a very different TV program, “The Advocates” to a national nomination.

At one level, therefore, the TV networks just have to be much more careful about who they build up.  (How do you think the person who at NBC who accepted Trump’s pitch feels these days?)

Which leaves Fox!

There are many ways to constrain this aberration, with libel law changes being one, but always lurking in the background is the old fairness doctrine.  A way should be found to resurrect this, such as by limiting the exception when the number of meaningfully different outlets falls below a certain level.  Alternatively, controlling Fox through advertisers might become a long term project.

 

 

 

When Does the Trump Game End?

I can claim no special knowledge about how the Trump game ends.  But I do have a theory about when.

Its simple.  We run up against the debt ceiling somewhere between August and October.

I refuse to believe that the real banking and economic powers — worldwide– are willing to trust Trump, the way he is now, with that negotiation.  It would make the  shutdown seem like kindergarten play.

Of course, if my theory is wrong, then we are in for a terrible ride.

 

Regardless of How the Votes Go, It’s Going to Be the Republicans Tax Code

As long as most of us have been alive, the Democrats have “owned” the tax code, being blamed for every trade off and decision.

Assuming for a sad moment that the Republicans manage to ram this monster of redistribution through, it will become “their” tax code.

We can run ads against every element.

We can do April 15 ads.

We can print and Photoshop copies of the 1040 with Trump’s, McConnel’s and Ryan’s photos superimposed.

Every time a Republican complains about anything to do with taxes we throw it back in your faces.  “You wrote the code, you rammed it through.  You own it now.  You pay the price.”

Of course, if they fail to pass their bill, then anything wrong with the code is still their fault, because they are too pathetic to have changed it.

Not the platform I would like to have to run on, but one I would love to run against.

 

Refusing to Move a Vice Presidential Replacement Would Be The Ultimate Garland Payback

It’s time to start speculating about a post-Trump 2019.  Supposing Trump is impeached, Pence moves up, and Congress starts to talk about replacing him as the investigation reaches Pence.

Then the Dems, now in the majority, citing the Garland nomination, refuse to approve a new VP.  “The people should decide.” (imagined quote).

When Pence is convicted, we get, glory of glory of glories, President Pelosi.  Pelosi, of course, re-nominates Garland, no longer subject to the filibuster.

 

Could Obamacare Repeal Split the Union Apart?

Then the Supreme Court decided Dred Scott, I doubt that they intended to split the Union apart, probably the opposite.

When Chief Justice Roberts engineered the decision that allowed states to opt out of the Medicare expansion, I suspect that he too had no such intent.

But that may be the consequence.

As the data on state budget implications of the Repeal making its way to the Senate becomes frighteningly clear, it is starting to seem as if the result will be to put opt-in (generally blue) and opt-out (generally red) states on fundamentally economic and political paths.

In Blue states, the economics and politics will do deep damage to the Republicans, with likely single party domination in many more blue states.  The reverse will be true in red states, at least until the voter rolls expand — and every effort will be made to prevent that.

At what point, with the states divided into single party red, and single party blue, how long till various forms of secession start to be appealing to both sides?  Remember that the right’s obsession with state’s rights tends to blind them to the advantages of the Federal role.

A frightening prospect.  But when one party stops representing a huge swathe of the country, that is what happens.

 

 

 

 

 

If Trump Is Planning a Pardon for the Arizona Sheriff, He Might Want to Think again.

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.

Time for second thoughts, Mr President.

Note:  This is a version of a very recent post on my access to justice blog.

 

 

Great Article on Why the Left Gave Up Violence

The Washington Post has a great article on why the left gave up violence.  The two first are basicially that it is counter-productive, and that there are better ways to get change.  Te other however, is much more interesting, and worthy of much thought:

The third and most important reason for giving up violence can be found in the new makeup of the American left. Emerging out of the rubble of the 1960s, the modern left, which coalesced around George McGovern’s quixotic 1972 presidential run, effectively represented a gathering of fugitives. African Americans, Hispanics, women, gay men and lesbians, Native Americans, and workers: These long-ostracized groups, which came to replace the New Deal coalition anchored by the white working class, were the very peoples against whom violence had been done for so long. Their painful histories made them instinctively averse to, and intolerant of, political violence. Those who had survived lynchings, beatings, bombings, sexual violence, forced removals and economic exploitation were least disposed to employ them in return. In 1972, those groups were often on the far left, but they eventually became the spine of Barack Obama’s electoral coalition.

Even while the fringes of the left were drawn to violence by overwhelming frustration (not to mention FBI provocateurs), most were profoundly ambivalent, probably in major part for these reasons.

It occurs to me that the only way the right seems to have to respond to those whose claims and philosophy has been shaped in part by a family history of being at the very least at risk of being victims, is to embrace their own victim-hood — and the facts just do not support those beliefs.

This also suggests that the left might be better than we fear at reaching out to the right self-perceived victims on the basis of common “victimhood.”  At a minimum, in individual conversations, those on the left can tell stories that might create some sense of sympathy.  Of course, the sociopaths (like the Donald) will never feel any such empathy, but I simply refuse to believe that 30% are sociopaths.

And, a society built on an understanding of the risk of victimiztion would surely be a better one.