Tuesday, June 13, 2017

Cruising the Web

Jake Tapper links to an excerpt from Trump's Art of the Deal about how he valued loyalty over integrity in his employees. Gee, he hasn't changed much, has he?

Now that President Trump has offered to testify under oath about his communications with Comey, the Washington Post reminds us of another time that Trump testified under oath.
Trump had brought it on himself. He had sued a reporter, accusing him of being reckless and dishonest in a book that raised questions about Trump’s net worth. The reporter’s attorneys turned the tables and brought Trump in for a deposition.

For two straight days, they asked Trump question after question that touched on the same theme: Trump’s honesty.

The lawyers confronted the mogul with his past statements — and with his company’s internal documents, which often showed those statements had been incorrect or invented. The lawyers were relentless. Trump, the bigger-than-life mogul, was vulnerable — cornered, out-prepared and under oath.

Thirty times, they caught him.

Trump had misstated sales at his condo buildings. Inflated the price of membership at one of his golf clubs. Overstated the depth of his past debts and the number of his employees.

That deposition — 170 transcribed pages — offers extraordinary insights into Trump’s relationship with the truth. Trump’s falsehoods were unstrategic — needless, highly specific, easy to disprove. When caught, Trump sometimes blamed others for the error or explained that the untrue thing really was true, in his mind, because he saw the situation more positively than others did.

“Have you ever lied in public statements about your properties?” the lawyer asked.

“I try and be truthful,” Trump said. “I’m no different from a politician running for office. You always want to put the best foot forward.”
Perhaps Trump's lawyers might explain to him what a perjury trap is. They might remind him of the Plame investigation and how Patrick Fitzgerald kept on with the investigation even though he soon found out who had leaked Valerie Plame's name - Richard Armitage of the State Department. Fitzgerald kept at it until he could prosecute Scooter Libby for a rather questionable difference of recollection with Tim Russert We don't know that Robert Mueller would behave like Inspector Javert as Fitzgerald did, but Trump'sworn testimony under oath could present way more opportunities for Trump to lie under oath. Would any lawyer want to put his faith in Trump's veracity.

Kevin Williamson explores how Trump's lack of credibility underlies the problems he faces today as we face an investigation into the allegations of obstruction of justice.
It is impossible to get at that in a meaningful way without considering the unsettling question: What sort of man is the president of these United States? We know he is a habitual liar, one who tells obvious lies for no apparent reason, from claiming to own hotels that he does not own to boasting about having a romantic relationship with Carla Bruni, which never happened. (“Trump is obviously a lunatic,” Bruni explained.) He invented a series of imaginary friends to lie to the New York press about both his business and sexual careers. He has conducted both his private and public lives with consistent dishonesty and dishonor. He is not a man who can be taken at his word.

Conservatives used to care about that sort of thing: Bill Bennett built a literary empire on virtue, and Peggy Noonan wrote wistfully of a time “When Character Was King.” But even if we set aside any prissy moral considerations and put a purely Machiavellian eye on the situation, we have to conclude that having a man such as Trump as president and presumptive leader of the Republican party is an enormous problem for conservatives and for the country corporately. Allegations of petty corruption against Donald Trump cannot simply be dismissed out of hand, because no mentally functioning and decently informed adult thinks that Donald Trump, of all people, is above that sort of thing. Quid pro quo patronage? He’s proud of it. Dishonesty? He boasts about it in a book published under his name. Question: If a young, attractive, blonde woman employed by the Trump Organization came forward claiming to be having an affair with the president, why wouldn’t you believe her? Because Donald Trump isn’t that kind of guy? He’s precisely that kind of guy — that’s the main reason anybody outside of New York ever knew his name in the first place.

Of course it is the case that Democrats and anti-Trump Republicans are predisposed to believe the worst about the man. But the fact is that doing so is not obviously wrong or unreasonable.

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Trump's lawyer is threatening to file a complaint about Comey with the Department of Justice Inspector General. Probably nothing will come of it, but it could still have an impact, as John F. Banzhaff, professor of law at George Washington argues.
First, the actual filing of the complaint is bound to generate considerable publicity, thereby providing an additional opportunity for his lawyers to try to explain in great detail to the public why they think Comey's conduct was wrongful and even illegal.

Second, the filing and resulting investigation would undercut Comey's credibility as a witness in any criminal proceeding, in the ongoing credibility battle between himself and Trump, and generally in the eyes of the public, suggests Banzhaf.

Third, it could create an apparent conflict of interest in the eyes of many since the same agency which would supposedly be conducting an impartial investigation of Comey is at the very same time working with him to obtain documents and testimony for Mueller's investigation.

Moreover, since Comey's own testimony strongly suggested that he and Mueller are friends, Trump can claim that Mueller will try to persuade those investigating the complaint against Comey to go easy on him - a bizarre parallel to what Comey claims Trump asked him to do regarding Michael Flynn.

Many of the complaints I filed were not successful from a legal point of view, but nevertheless managed to help me achieve public interest goals, says Banzhaf.

The NYT has the graph from a new study on the political affiliation of the nation's religious leaders broken down by religion. It's rather fascinating (and I must admit that there are some religions here that I'd never heard of and don't understand the divisions among all the various Protestant denominations.
And the religious leaders of liberal denominations are more likely to be registered as Democrats, and those of more conservative denominations even more likely to be registered as Republicans than their congregations are to be registered as either. It reminds me of how members of Congress are further to the right or left than their constitutents.
Yet pastors are even more politically divided than the congregants in their denomination: Leaders of more liberal denominations tend to be even more likely to be registered as Democrats, and those of more conservative denominations even more likely to be registered as Republicans.

“It's a reflection of the ongoing sorting we have in American life,” said Mark Chaves, a professor of sociology, religion and divinity at Duke University. “Why would we think that religion is immune to that?”

If you were so naive to think that President Obama led a scandal-free administration, how do you feel about this story?
Just a week after the US Senate failed to stop the Iran nuclear deal, Tehran launched a major cyberattack on the State Department — and the Obama administration kept it secret.

The Washington Free Beacon broke the story
last week, revealing that Team Obama was even more craven than we’d thought.

The two sides were then still negotiating the “side deals” to finalize the accord; it wasn’t too late to stop it. And the attack showed that Iran wouldn’t remotely begin to moderate its ways, as the Obamaites had hoped.

Indeed, the hacking seemed to target the State personnel involved in those negotiations — the better to wring a last few concessions, no doubt.

It’s obvious why Iran thought it could get away with it: Washington had proved willing to cede every point in order to reach a deal.
But no one will care about this much more serious dereliction of duty because we're so caught up with what the meaning of "hope" is when Trump used it talking to James Comey.

Speaking of how Obama lied to and deceived the American public, don't forget all his lies about what Obamacare would mean to those in poor health who needed health insurance.
Individuals who rated themselves in poor health were much more likely to purchase health insurance on the exchange, 27 percent, than those in excellent health at 12 percent. There were 73 percent of individuals in poor health that purchased health insurance off the exchanges.

Those in poor health who purchased insurance on the exchanges are also more likely to rate their coverage as fair or poor. Thirty-nine percent of those in poor health said their coverage was fair or poor, compared with 62 percent of those who said it was excellent or good.

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Ken White, a First Amendment litigator, has a nice, short primer in the LA Times on what the Supreme Court has said about when the government can limit freedom of speech and whether or not hate speech is one of those exceptions. Short answer: no it isn't an exception to free-speech protections.
The Supreme Court has called the few exceptions to the 1st Amendment “well-defined and narrowly limited.” They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. It’s a non sequitur.
Read the rest of his column for what the Supreme Court has said recently. And if you're a Living Constitution sort of person and think that the time has come for the Court to put is collective foot down on the side of not protecting hate speech, think again.
The Supreme Court’s approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving towards more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court — like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals — have yielded solid 8-to-1 majorities in favor of protecting speech. There’s no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, I’m happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.
Every year I teach I have a heavier sense of the obligation I have to teach my students about why the freedoms in the Bill of Rights were so key to the Founding Fathers that it was considered a necessity to promise to add in those protections before the Constitution could be ratified. I feel too often these days, my students give pro forma support to those freedoms but, when specific incidences come up, such as campaign reform, hate speech, free exercise questions, due process rights, my students and too many people in this country on both sides of the aisle are ready to chuck it all away.

John Tierney interviews Philip Hamburger, author of two books examining the deleterious effect of our ever-expanding administrative state: Is Administrative Law Unlawful? and The Administrative Threat. Hamburger makes an intriguing comparison between our administrative state today and the expansion of royal power under the Stuart rulers James I, Charles I, and James II. The actions of Charles I led to the English Civil War and the establishment of the Commonwealth and the actions of James II led to the Glorious Revolution in 1688 and the triumph of parliamentary rule over regal power.
In his view, not only is such delegation unconstitutional, it’s nothing new. The founders, far from being naive about the need for expert guidance, limited executive powers precisely because of the abuses of 17th-century kings like James I.

James, who reigned in England from 1603 through 1625, claimed that divinely granted “absolute power” authorized him to suspend laws enacted by Parliament or dispense with them for any favored person. Mr. Hamburger likens this royal “dispensing” power to modern agency “waivers,” like the ones from the Obama administration exempting McDonald’s and other corporations from complying with provisions of the Affordable Care Act.

James also made his own laws, bypassing Parliament and the courts by issuing proclamations and using his “royal prerogative” to establish commissions and tribunals. He exploited the infamous Star Chamber, a court that got its name from the gilded stars on its ceiling.

“The Hollywood version of the Star Chamber is a torture chamber where the walls were speckled with blood,” Mr. Hamburger says. “But torture was a very minor part of its business. It was very bureaucratic. Like modern administrative agencies, it commissioned expert reports, issued decrees and enforced them. It had regulations controlling the press, and it issued rules for urban development, environmental matters and various industries.”

James’s claims were rebuffed by England’s chief justice, Edward Coke, who in 1610 declared that the king “by his proclamation cannot create any offense which was not an offense before.” The king eventually dismissed Coke, and expansive royal powers continued to be exercised by James and his successor, Charles I. The angry backlash ultimately prompted Parliament to abolish the Star Chamber and helped provoke a civil war that ended with the beheading of Charles in 1649.

A subsequent king, James II, took the throne in 1685 and tried to reassert the prerogative power. But he was dethroned in the Glorious Revolution in 1688, which was followed by Parliament’s adoption of a bill of rights limiting the monarch and reasserting the primacy of Parliament and the courts. That history inspired the American Constitution’s limits on the executive branch, which James Madison explained as a protection against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.”

“The framers of the Constitution were very clear about this,” Mr. Hamburger says, rummaging in a drawer for a pocket edition. He opens to the first page, featuring the Preamble and Article 1, which begins: “All legislative Powers herein granted shall be vested in a Congress.”
The rise of the progressive movement in the United States led to the misconception that our country would be better ruled by a supposedly non-political experts in a continually expanded bureaucracy.

Every year I teach my students about the separation of powers as conceived in the Constitution. Then we get to the unit on the Bureaucracy and they learn about independent regulatory agencies that have the powers of the legislative, executive, and judiciary all wrapped up int one agency and the students are astounded. What happened to all that nice rhetoric they read in Federalist 51? Well, we've eviscerated it by handing over power to the administrative state. And Hamburger is quite persuasive in his arguments about why this is so unfortunate.
“Essentially, much of the Bill of Rights has been gutted,” he says, sitting in his office at Columbia Law School. “The government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.” ​

In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. “The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says. “Ultimately this is not about the politics of left or right. Unlawful government power should worry everybody.”
Once we finish the units on Congress, the Presidency, the Bureaucracy, and the Judiciary, I ask my students which of these four they find the most powerful. They are all in basic agreement that it is the Judiciary, followed by the Bureaucracy, and then the Presidency and Congress coming in a rather distant third and fourth. I guess we have to hope that Professor Hamburger is right that we have to pin our hopes on the judiciary to rein in the power of the administrative state.
Mr. Hamburger sees a good chance that the high court will limit and eventually abandon the Chevron doctrine, and he expects other litigation giving the judiciary a chance to reassert its powers and protect constitutional rights. “Slowly, step by step, we can persuade judges to recognize the risks of what they’ve done so far and to grapple with this very dangerous type of power,” he says. The judiciary, like academia, has many liberals who have been sympathetic to the growth of executive power, but their perspective may be changing.

“Administrative power is like off-road driving,” Mr. Hamburger continues. “It’s exhilarating to operate off-road when you’re in the driver’s seat, but it’s a little unnerving for everyone else.”

He says he observed this effect during a recent conversation with a prominent legal scholar. The colleague, a longtime defender of administrative law, was discussing the topic shortly after Mr. Trump’s inauguration.

The colleague told Mr. Hamburger: “I am beginning to see the merit of your ideas.”
Hello? I know it was hard for progressives to believe, but they were never going to have permanent control of government. Maybe they'll go back to Madison's wisdom in the necessity of having a system of government in which ambition could be used to check ambition.

Glenn Reynolds is also reading
Philip Hamburger's new book and is glum about the administrative state.
How did a system designed to provide government of, by, and for the people devolve into a system in which bureaucrats unaccountable to voters (though exquisitely accountable to political players and special interests) produce masses of law that was never voted on by an elected official? Simple: on purpose.

In the early days of the Republic, the franchise was limited. But as the mass of voters became larger, more diverse, and less elite, those who considered themselves the best and brightest looked to transform government into something run not by those deplorable unwashed voters but by a more congenial group. As Hamburger says, “They have gradually moved legislative power out of Congress and into administrative agencies — to be exercised, in more genteel ways, by persons like … themselves.”

It has been, in essence, a power grab by what Hamburger calls the “knowledge class,” or what others have called the New Class: A group of managers and intellectuals who, although they may not actually be especially knowledgeable or elite in practice, regard themselves as a knowledge elite.
It is indeed very discouraging.

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Ann Althouse links
to this cringe-making story from the Daily Beast, "James Comey is the Sex Symbol AMerica Needs Right Now."
Less than an hour into former FBI director James Comey’s testimony before the Senate Intelligence Committee on Thursday, there was a collective stirring-of-loins across America: Comey was...hot?

On social media, many Americans confessed to unexpected feelings of lust as they watched Comey declare in his opening remarks that the administration’s defamatory statements about the FBI were “lies”; that the organization is “honest” and “independent” of partisanship, and that it was the “honor of my life to be part of the FBI family.”

And as he went on to answer questions from committee members--confidently and candidly, with intermittent flashes of humor--shy murmurings about his unlikely sex appeal on Twitter evolved into brazen chatter....

And so the 56-year-old, fired FBI director became a very unlikely sex symbol. Sure, he has a somewhat peaked complexion and under-eye bags that look like half-inflated tubular balloons. But he's handsome, and as with all sex symbols--both the unlikely ones and the obvious ones--he embodies certain qualities in society that we all lust after: integrity, emotional complexity, and quiet but certain confidence.
That combined with his imposing physical stature gives him the same alluring masculinity as sex symbols like Mr. Darcy in Pride and Prejudice (particularly Colin Firth as Mr. Darcy in the BBC’s Pride and Prejudice).

In Italy on Friday, my Daily Beast colleague Barbie Latza Nadeau reports that there was "a ten-minute segment on Italian prime time TV about whether Comey would be a good lover because of the “length of his digits.”
Oh, gag! Ummm, was he that handsome when he was supposedly losing the election for Hillary Clinton?