Saturday, September 7, 2019

From Roger Fitch and our friends down under at Justinian....

Companies are hereby ordered ...

 • THURSDAY, SEPTEMBER 5, 2019
Trump as the Mad King ... Dystopian plans ... SCOTUS agenda ... "Religious" claims ... Gun control ... Voting rights ...Republicans on a roll ... Latest news from Guantánamo ... Roger Fitch reports from the turmoil of Washington 
"Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too; a king elected to command a standing army... The President-general, who is to be our king after this government is established, is vested with powers exceeding those of the most despotic monarch we know of in modern times" - Benjamin Workman ("Philadelphiensus"), an Anti-Federalist.
"Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing your companies HOME and making your products in the USA" – Trump tweet.
The situation is grave: a president who erratically rants before paid Statisten at Nuremberg-style rallies, a man known for open malevolence (e.g, towards immigrants), personal vindictiveness (more here) and non-stop lying. Beyond that, a president of depthless immaturity and almost clinical grandiose delusions.
In a new burst of royalism, America's very own King Canute has "ordered" US companies to stop dealing with China, claiming justification under the International Emergency Economic Powers Act of 1977, more here - yet another abuse of the executive's emergency powers.  
In July and August, Donald Trump said Denmark should sell Greenland to the US (more here), claimed Jewish Democrats were “disloyal" - to Israel (more here) and suggested certain (dusky or Muslim) female Democrats, members of congress, yes, even those born in America, "go back to where they came from."
Mainstream media edged closer to finding Trump mentally unbalanced, while a new book by a top human rights lawyer counted the ways he resembles Adolf Hitler. 
Leaving aside Trump's innate transgressive behaviour (e.g, promising pardons to subordinates who break the law), it's the president's personal corruption that interests citizen groups such as CREW, who have documented 2000 plus+ conflicts of interest.
Sometimes the Trump administration's dystopian plans fail: the EPA's proposed roll-back of car pollution standards seems doomed, with Big Auto declining to join in Big Carbon's schemes. Other corporately-curated sabotages of climate science are thriving, however, and the EPA's still on course to destroy the Endangered Species Act.
At the NLRB, the politically-appointed board has put its thumb on the scale for employers, enforcing compulsory individual arbitration agreements that were concocted and imposed after collective actions by employees, e.g. the class litigation so despised  by the supreme court's majority. 
At the Bureau of Land Management, Trump has appointed someone who doesn't believe in public land to oversee 247.3 million acres of public lands and nearly 700 million acres of subsurface mineral estate.
*   *   *
SCOTUS: the right place for gun nuts 
A number of important matters are headed for the supreme court in its October term. At the top of the docket, vital to the Trump administration's campaign to reverse civil rights gains, are conflicting lower court rulings on sexual discrimination in employment. There will be further contentious decisions on appeal (see one opinion here) which consider "religious" claims of immunity from anti-discrimination laws, based on "faith", "moral" or "free speech" grounds.
Gun regulation laws are also on the menu. Timid efforts at gun control have been discussed by politicians, but the biggest obstacle is the extreme wing of the supreme court, the ideological cohort who imposed a libertarian, ahistorical gloss on the 2nd amendment in the Heller case – one of the most controversial decisions in supreme court history. 
Unwisely, or not, a group of Democrat senators has joined a brief in the latest case, implying the supreme court's decision was likely to be partisan.
The supreme court also will hear the notorious (Mexican) border shooting case and will take up non-unanimous criminal verdicts. It's still the law in Oregon, and until 2018, it was the law in Louisiana. A case in the latter state, testing the prior-2018 decisions, has been accepted for the new term, and will likely interest the intractable "originalists" Neil Gorsuch and Clarence Thomas. 
Stuffing the supreme court with party people is beginning to pay off for Republicans in other ways, with the partisan majority now poised to interfere in lower court decisions at an early stage in order to advance Mr Trump's agenda. Steve Vladeck comments on the border wall expenditure case, where America's president flagrantly spent money after congress refused to appropriate it.
*   *   *
The fight against voter purging
The supreme court has taken a hands-off approach towards voter rights, expressed most forcefully by its refusal to address partisan gerrymandering in the recent Rucho v Common Cause; it's an indifference likely to last as long as it benefits Republicans, and perfectly consistent with the chief justice's long-held hostility to constitutional voting rights.
"Gerrymandering" actually predates the US bill of rights, but "purging" - the practice of unilaterally knocking suspect citizens off voter rolls - is a modern device that Republican-controlled states use to disenfranchise suspect voters: 17 million of them between 2016 and 2018.
If purging doesn't eliminate prospective Democrats, Republican states have other schemes, e.g. fiddling voting machines, or closing voting sites, where uncongenial minorities attempt to vote. 
If Democrats succeed in voting in Mississippi, the state's byzantine election laws may still prevent a victorious Democrat taking office. In defending a new lawsuit, the state cites the CJ's Rucho opinion.
Citizen initiatives allow some states to set up AEC-type electoral commissions, but Republican-controlled legislatures e.g, in Michigan, are fighting back, determined to maintain gerrymanders that give them majority control. 
Republicans are also organising to base congressional districts entirely on citizenship, a clear breach of the constitution's language. If all else fails, there are plans for a constitutional redraft.
Until such time as Republicans succeed in amending the constitution, there's the electoral college and, interestingly, "faithless electors" (those who vote their conscience instead of the party slate) have just been vindicated by the 10th circuit, more here and here. 
*   *   *
At Guantánamo, a new "9/11" judge has been considering issues such as:
Meanwhile, a lawyer for Abd al-Rahim al-Nashiri has been unexpectedly passed over for promotion by the Pentagon, possibly for too-vigorous representation of his client.  
The Nashiri case - probably the most lawless of all the commissions - is receiving attention in a new film about the CIA torture program; Nashiri was one of the program's first victims and received the personal attention of the former Thai torture camp commandant - now CIA director - Gina Haspel. 
And finally: it's a bit late in the day, but an Obama-bolstered DC circuit panel has brought back full habeas for Guantánamo internees, more here. 
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Wednesday, July 10, 2019

From our friends down under at Justinian

SCOTUS rescues the gerrymander

 • WEDNESDAY, JULY 3, 2019
US Supreme Court washes its hands of election rigging ... Redistricting ... Trump lawlessness ... The president losing droves of court cases ... Financial irregularities ... Cosmetic inquiries guarantee that no one is responsible for war crimes ... Persecution of migrant children ... Roger Fitch reporting from Washington 
"Redistricting is like an election in reverse! Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters! [It's] the only legalized form of vote-stealingleft in the United States" - late Republican strategist and mapmaker Thomas Hofeller
The last opinions of the supreme court term are out, and the most tragic - Rucho v Common Cause, about partisan voting districts - could join Plessey v Ferguson in infamy.  Gerrymanders, presently skewed heavily in favour of Republicans, are henceforth to be treated as political matters into which state, but not federal, courts may inquire. More here on the latest Republican election-rigging, using supreme court proxies. 
Final court rulings dealt with a four-letter trademark; agency-deference, double-jeopardy, another "faith" bakery claim and the census question, where the justices unexpectedly deferred a decision.
Although the court decision was initially accepted by the government, Trump intervened and ordered the DoJ to find a way to add the question to the April 2020 US census. 
The census turnaround arose from late developments in an unrelated North Carolina gerrymandering case: fresh evidence of Republican bad faith in the Trump administration's massively unpopular initiative to make citizenship a key part of the federal census. 
The goal - to drive Hispanics and others out of the census totals - would reduce the count of target groups and cost some states not only population-based federal services but also some likely Democrat legislative constituencies, including Texan and Californian seats in congress. 
It was hoped that Chief Justice John Roberts would intervene to protect the reputation of the court in the politically-charged gerrymandering and census cases, but it was only the latter, where the CJ joined court liberals in a remand: possibly a temporary feint, as the majority seem bent on furthering Republican Party fortunes, even at the cost of representational democracy. 
*   *   *
Nixon: cruised to victory while Watergate unfolded
Despite daily doses of Trump lawlessness including receipt of financial benefits funnelled through Trump hostelries (more here) and other probable breaches of the US constitution's emoluments clause, congress is primarily interested in Trump's obstructions of justice, including the Mueller investigation itself; the Special Counsel's resignation statement seemed to invite impeachment - an opportunity resisted by the Democrat leader, Nancy Pelosi.
Some noted that Nixon's articles of impeachment described obstructions of justice quite similar to those of Trump, and a Times writer helpfully drafted Trump impeachment articles. Despite such impeachment comparisons, it's worth recalling that Nixon won re-election as Watergate unfolded; today's newly-legalised gerrymanders and a creaky constitution might still enable a troubled Trump to steal home again. 
Meanwhile, the president's compulsive distortions of his balance sheets provide fertile grounds for investigation, and his obstructions of congressional oversight are being knocked down by federal district courts.
In DC, Obama-appointee Amit Mehta ruled against Mr Trump in a case of congressional subpoenas for records maintained by Mazars, the Trump Organisation accountants (more here), and the next day, a Manhattan federal court ruled against Trump in the Deutsche Bank litigation. Corruption aside, Congress has a valid interest in tax audit legislation to justify its subpoenas.
In the same week, New York State passed legislation making it easier to provide financial information to Congress that could entangle Trump. Thanks to the new supreme court decision upholding "separate sovereigns" as an exception to double jeopardy, New York can prosecute, for state crimes, those whom Trump may pardon for similar federal crimes. 
The Washington Monthly estimates Trump has lost 63 court cases. Even so, the politicised DoJ has begun "rejecting" federal court orders, and the threat of a Trump unbound by law is frightful to contemplate.  The economist and law prof Neil Buchanan has pessimistic projections for 2020 and beyond that effectively treat Trump as an incipient dictator, difficult to dislodge from office. 
*   *   *
Durham: patsy investigator for successive administrations
If only Barack Obama had possessed the cojones to prosecute and convict malefactors from the Bush administration for corruption and war crimes, lawless abuses of the "war on terror" and the CIA's torture regime, the Republican brand might have been so badly damaged that the party would have been unable to regroup and gain power under a Donald Trump. Leading party people would have been unavailable, in jail or tainted by disgrace.
The Obama DoJ's cautious approach was to conduct narrow investigations that declined to hold anyone responsible, and allowed Bush villains to emerge unscathed, claim vindication and hold high office again, along with sundry pardoned criminals from previous Republican administrations, e.g. odious neocons like Eliot Abrams.
The preferred instrument for these cosmetic inquiries has been John Durham, a career US Attorney who conducted superficial reviews of CIA misbehaviour at the behest of both the Bush and Obama attorneys general, each time conveniently absolving those involved.
Durham first considered the CIA's notorious destruction of torture tapes, a violation of various laws and court orders that was carefully carried out by the current CIA director, Gina Haspel. Durham's other absolution was even more shameful, letting the CIA off the hook for torture that led to death. The only CIA-related cover-up Durham didn't manage was the exculpation of the CIA's accomplices, the torture memo hacks in the Bush administration, carried out by a DoJ fixer in-house.  
Curiously, John Durham has now been selected by Donald Trump's AG to conduct an investigation where the government desires an incriminatory finding, and it involves both the CIA and FBI.  A cynic might say the CIA faces critical examination for - daring to investigate Trump. 
If Durham had found wrongdoing in his Bush/Obama investigations, any resulting prosecutions and convictions might have been erased by Trump. Under the uniquely-American practice of a single person setting up the whole government, the president could have proceeded to resolve all staffing problems by pardoning and rehabilitating party operatives that previous governments had convicted and put away.
As it is, Trump continues to pardon undeserving rightwing martyrs, and dodgy businessmen like Conrad Black, who perspicaciously penned an adulatory biography of the president. Having few convicted Republicans left to pardon, the president now seems set on a mischievous course of pardoning accused or convicted US war criminals. More here and here.  
He evidently admires their grit and determination, and has, as a model, Richard Nixon's "patriotic" intervention on behalf of William Calley. There's more history here, and a list of Trump's pardons for crimes he evidently finds acceptable or praiseworthy. 
*   *   *
No need for toothbrushes
If official cruelty were an impeachable offence, congress might consider Trump's determination to make life harder for the unfortunate and poor: prosecuting Good Samaritans who help migrants, and separating newborn infants from their mothers. In a shocking 9th circuit case, a hapless DoJ lawyer even claimed migrant children could be made to sleep on concrete floors and be denied soap and toothbrushes
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Monday, May 13, 2019

From Our Friends Down Under at Justinian...

The Obstructionist-in-Chief

 • WEDNESDAY, MAY 8, 2019
Three Pinocchios for Billy Barr ... Mueller's 11 obstruction findings ... Charging and indicting Trump ... SCOTUS takes on cultural issues with new term cases ... Invalid orders of a compromised military commission judge ... Noam Chomsky on how the US political system works ... From Our Man in Washington, Roger Fitch 
"[It's] unlikely that President Trump is a recruited and controlled source of the Russian intelligence services ... Yes, he is a cauldron of potentially exploitable vulnerabilities. He is greedy, has lax morals and shame, isn't particularly patriotic, has a difficult time with right and wrong and is easy to manipulate. He would be easy to exploit and entice into ... a conspiratorial relationship [but] ... impossible to control. His narcissism, poor memory and ego would make it all but impossible for him to follow directions and keep a secret ... He blathers about things he doesn't understand, never admits that he is not an expert, is loathe to admit mistakes, lies constantly and is barely intelligible ..." - John Sipher, CIA's former head of Russian operations.  
IN his full report, Special Counsel Robert Mueller found no legally-culpable Russo-Trump conspiracy (many questions remain unanswered) but there was evidently collusion in the shared objective of electing Trump, quid pro quo or not. Also, AG Bill Barr's gratuitous prequel - pre-emptively acquitting Donald Trump of obstruction - now seems the act of a Nixonian Attorney General.
Barr has form for suspicious redactions of  DoJ memos, and the Washington Post Fact-Checker gave his pre-Mueller epitome Three Pinocchios.
The Attorney-General misrepresented Mueller's report in important ways.  Chief among them was implying that Mueller found no obstructions of justice. In fact, Mueller found eleven potential obstructions and asserted his belief that presidents could be charged with obstruction (their lawyers should also be concerned), but he made no prosecutorial recommendation. More here.
It seemed an "indictment in all but name", with a smoking gun, but Mueller stopped short of a formal finding of obstruction, on the circular grounds that, under DoJ ruling opinion, Trump could not be legally indicted, and recommending charges would thus be "unfair". Some strongly disagreed, including 650+ ex-federal prosecutors.
The report would have sunk any other president, but Trump remains standing, though under investigation in the Southern District of New York, among other places.  
Even if the Russian conspiracy fizzled, the report provided an impeachment referral, an obstruction "road map" that Barr tried to conceal.
The subject of this attention, serenely unaware of the constitution's impeachment provisions, moved on to the obstruction and stonewalling (more here) of congress, where Democrats aren't doing much anyway.   
*   *   * 
SCOTUS: the columns are Corinthian 
The last cases of the supreme court term were argued in April, including the important census and agency deference disputes. The court heard, and appeared ready to uphold, the "separate sovereigns" exception to the Constitution's double jeopardy clause. 
Cases already decided include Lamps Plus, another anti-worker pro-business arbitration ruling by the politically-divided court.
In its next term, the newly-remodelled supreme court will take on cultural controversies, e.g, whether sex discrimination includes LGBT rights, a hot textual topic for the "originalists" Gorsuch and Kavanaugh. 
The president must "faithfully uphold the law", but in a 5th circuit appeal, Trump's DoJ has changed sides to defend an off-the-wall Texas federal court decision declaring Obamacarewholly unconstitutional. 
The 2nd circuit is considering Trump tweets, with the president asserting a right to bar uncongenial tweeters from his Twitter site. 
The conservative 6th CA has joined other circuits, striking down appalling partisan gerrymanders in the Trump heartland of Michigan and Ohio.  It's a constitutional breakthrough that may not last.
*   *   *
Department of Justice, Washington: with protesters
Hopefully, some readers will have heard about a "no good, very bad day" for Guantánamo's military commissions, when the DC circuit threw out 460 written orders of a MC judge who presided over a case staffed and funded by the Justice Department, while he concealed, with prosecution assistance, his concurrent negotiations with DoJ for an immigration judge position.
Lawfare and Noah Feldman have more on the latest failure of the Pentagon's simulated justice. 
Other points of interest:
*   *   *
Chomsky the Younger: how Republican politics works 
For those who wonder how Republicans prosper and endure under "a mendacious narcissistic bigot who lost the popular vote by 3 million votes", Noam Chomsky has a convincing explanation: 
"Republicans face a difficult problem. They have a primary constituency [of] extreme wealth and corporate power. That's who they have to serve ... You can't get votes that way, so you have to do something else to get votes. What do you do to get votes? This was begun by Richard Nixon with the Southern strategy: try to pick up racists in the South. [In] the mid-1970s ... Republican strategists hit on a brilliant idea. Northern Catholics voted Democratic ...  a lot of them working-class. The Republicans could pick up that vote by pretending ... to be opposed to abortion. By the same pretence, they could pick up the evangelical vote ... You go back to the 1960s, ... [t]he Republican Party ... position was: Abortion is not the government's business ... They turned almost on a dime in order to try to pick up a voting base on ... cultural issues.
Same with gun rights. Gun rights become a matter of holy writ because you can pick up part of the population that way ... [They] put together a coalition of voters based on issues ... the establishment ... don't like ... 
And they've got to hold that, those two constituencies, together. The real constituency of wealth and corporate power, they're taken care of by actual legislation ... lavish gifts to the wealth and the corporate sector - the tax bill, the deregulation ... Meanwhile, Trump has to maintain the voting constituency, with one outrageous position after another that appeals to some sector of the voting base. And he's doing it very skilfully." 
Postscript: Trump will pull out of the Arms Trade Treaty limiting trade with terrorists. The troubled NRA, an organisation more terrorist than charitable, according to NY's AG, doesn't like it. 
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Friday, March 15, 2019

From our Friends down under at Justinian

A light sprinkle of good news

 • WEDNESDAY, MARCH 13, 2019


 • WEDNESDAY, MARCH 13, 2019
The search for Trump's worst cabinet member ... Environmental plunder ... Court stacking under Mitch McConnell ... Rupert Murdoch's Fox News props-up Trump's Roman circus ... Yet, amid the debauchery there are tiny rays of hope ... Some significant decisions from a stacked SCOTUS ... And women out west take control of state legislatures ... Roger Fitch reports from Washington 
"Murdoch regarded Trump with disdain, seeing him as a real-estate huckster and a shady casino operator.… but he was a visionary about the niche audience that became Trump's base" - New Yorker
"Murdoch didn't invent Trump, but he invented the audience. Murdoch was going to make a Trump exist. Then Trump comes along, sees all these people, and says, 'I'll be the ringmaster in your circus!' " - Reed Hundt, Clinton FCC chairman
"Trump serves as a carnival barker for Fox" - Blair Levin, former FCC chief of staff
HE may be embroiled in the biggest political scandal in US history (more here and here), but President Trump still clings to power, sweating out the results of the Mueller Investigation.  
Fresh reports of Trump's egregious misconduct regularly appear and, just in time for congressional subpoenas, the Brookings Institution has a 2nd edition of its voluminous report on his obstructions of justice. Ethics watchdog CREW has a report on campaign finance malfeasance. Just Security meanwhile is tracking Mr Trump's damage to democratic norms.
The heat intensified in February, when Trump's former lawyer, Michael Cohen, testified before US House and Senate committees.
Among Cohen's revelations: Donald Trump never expected to win nomination or election, but saw the campaign as a marketing opportunity ("infomercial") for his properties, especially his project to build Europe's tallest tower in Moscow, to be named, naturally, after himself. It's a brand name now toxic. 
Following Cohen's house testimony, the House Judiciary Committee issued sweeping document requests (sorted by category here and here).
The Democrats will shortly demand Trump's tax returns. The president is already hiring teams of lawyers to assert executive privilege in this and other matters, many likely to reach the supreme court.
One of Trump's lawyers, the onetime Mafia Commission Trial prosecutor Rudolf Giuliani, knows better than most the ins and outs of organised crime. Ironically, his trademark techniques for taking down the Mafia could now be employed against Trump and the Trump Organisation. 
The president does have one enormous advantage. The New Yorker has an in-depth reporton how Rupert Murdoch's Fox News has become integral to White House messaging, essentially maintaining the rage of Trump's dwindling base as the walls close in and Foxexecutive Bill Shine, parachuted last year into the position of White House Communications Director, is now moving on to advise Trump's re-election campaign.
*   *   *
A subsidiary of the US chemical industry
After the departure of most of Trump's original crew, there's a new competition for his worst cabinet member. 
An obvious choice might be CIA director Gina Haspel, former commandant of CIA torture camps in Thailand, and possibly Guantánamo. Though the subject of a criminal torture complaint overseas, she's been praised for bringing new people - especially women - into CIA leadership positions. 
Nothing good is said, however, about the self-dealing Commerce Secretary Wilbur Ross(more here) or the scandal-ridden Labor Secretary Alexander Acosta.  
There is also nothing positive about the new EPA Administrator from the coal industry, Andrew Wheeler. The Trump administration's environmental policies remain shamelessly corrupt, with toxic chemicals deregulated, and the EPA transformed into a virtual subsidiary of the chemical industry. 
Under the administration's cynical cost-benefit analysis, 11,000 extra deaths a year is a price worth paying to relieve industrial polluters from the "burden" of mercury emission regulations. More here.
The administration has even rolled back the modest and sensible regulations of oil and gas exploration that were introduced after the Deepwater Horizon spill in the Gulf of Mexico, the worst such catastrophe in US history.  
Scientific advisers are meanwhile banished from positions with the EPA and the Interior Department (report), despite a damning new history of the failure to take action on climate change.
It's all part of a pattern: the Trump administration, like its corporate sponsors, has pragmatically decided that the planet is doomed and it's too late to do anything, anyway - except loot what's left.
*   *   *
McConnell: bench stacker extraordinaire
The US House may be busy bashing Trump, but nothing will happen in the senate so long as the intensely partisan Mitch McConnell remains Senate Majority Leader.  
McConnell is personally credited with packing the federal judiciary, beginning with the supreme court itself, where Republican loyalists have since signed off on Trump's "Muslim ban", and seem prepared to green-light the illicit motives underlying "national security" declarations, and such recent Trump initiatives as the rigged census questionnaire; the immigration "national emergency"; and an Army-built border wall.
If the courts rule against Mr Trump's national emergency executive order, will it make any difference? He recently openly flouted a federal court order striking down another executive order excluding aliens.
While the supreme court has unique internal dynamics, it is the lower courts that are suffering the most from McConnell's systematic stacking. Alarming appointees, chosen for conservative ideology, are being nominated and confirmed in droves; some are destined to be forever tainted as "Trump judges". 
One of the most unsuitable, Howard C Nielson, is a nominee for US District Court in Utah. Nielson once worked in the "torture memo" section of George Bush's Justice Department; his contribution was a 29-page memo implausibly (and wrongly) claiming that the 4th Geneva Convention only applied to those civilians detained on US territory, leaving US detainees in Afghanistan unprotected.  
*   *   *
The supreme court is nevertheless producing significant decisions.
In Timbs v Indiana the court cited the 14th amendment to incorporate one of the last elements of the Bill of Rights not yet fully applied to state and lower governments, the 8th amendment's protection against excessive fines, more here.  
Jam v International Finance Corporation opened international organisations (here, a subsidiary of  the World Bank) to civil liability for actions previously believed immune. 
The court also ruled the death penalty could not be inflicted on someone suffering dementia.
In a notable appeals court decision, Fazaga v FBI, the state secret defence was rejected by the 9th circuit. It was a refreshing change after the abuse of the doctrine under the Bush and Obama administrations, when it was not infrequently used to cover up criminal governmental and corporate misconduct. 
In a notable civil case that also survived "state secret" claims, one of the US-hired torture accomplices at Abu Ghraib, CACI International, will face trial at last, after a decade of stonewalling. Another contractor at Abu Ghraib, Titan Corporation successor L-3, settled with Iraqi plaintiffs years ago.
*   *   *
Not all the 2018 election news has been bad.  
Nevada has become the first US state where women hold a majority in both houses of the legislature, and women have taken control of Colorado's lower house. The West has historically led the way in women's participation in politics; this year Wyoming is marking 150 years of full women's suffrage, the world's first. 
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