Monday, January 29, 2018

Cruising the Web

I've been trying to follow all the reporting and conjecture about the Russian investigation and what Mueller may or may not be trying to do. It seems a lot like when we had Kremlinologists trying to guess what the Soviet Union was planning based on who was on the wall reviewing the troops. The latest supposed blockbuster that has leaked out is the NYT's story that the President had ofdered Mueller to be fired last June, but had backed down when his White House Counsel Don McGahn threatened to resign. There are some who are sure that this is evidence of Trump trying to obstruct justice. I'm still not convinced that talking about doing something and then being convinced not to do it is a crime. I'm just a layman, of course, but it seems that the President would have to take some action that actually obstructed justice instead of fuming about doing something and then being talked out of it. If I become furious and say that I'm going to murder someone, but my husband talks be out of it, I have not committed the crime of murder.

Politico has a round-up of legal experts on what this all means. Laurence Tribe thinks that there is more evidence of Trump's obstruction of justice than there was against Nixon in Watergate. He has been arguing since December in 2016 that Trump's impeachment "should begin on Inauguration Day." So, of course, he finds the Mueller story just more kindling to add to the fire. However, as Gene Healy points out, Tribe had quite a different approach to impeachment back in 1998.
What’s funny about all this is, when it was Bill Clinton’s political life on the line, Tribe nearly threw his back out trying to raise the constitutional bar for removal. In his November 1998 testimony before the House Judiciary Committee, Tribe insisted that “an impeachable offense must itself severely threaten the system of government or constitute a grievous abuse of official power or both.” Perjury and obstruction to cover up an illicit affair weren’t nearly grave enough.

Hell, back then even murder was a close call in Tribe’s eyes, if the president did the deed himself, for personal reasons. In his testimony, Tribe emphasized the fact that “when Vice President Aaron Burr killed Alexander Hamilton in a duel in July 1804 . . . Burr served out his term, which ended in early 1805,” without getting impeached. “There may well be room to argue,” Tribe grudgingly conceded, that a contemporary president could be impeached for an extracurricular homicide — but that exception “must not be permitted to swallow [the] rule.” Whack a guy in Weehawken and we might have to let you get away with it; lie about him on Twitter, though, and you’ve got to go.
Other law professors have a different interpretation of what this newest story means. For example, Laurie Levenson of Loyola Law School isn't convinced.
While interesting, I don’t think the Times’ revelations necessarily show that there is enough evidence at this point to seek an obstruction of justice charge against the president. To prove obstruction of justice, Mueller must still prove corrupt intent. We can anticipate that Trump will argue that he was not acting out of corrupt intent, but out of a mistaken belief that Mueller was somehow disqualified by alleged conflicts of interest. Of course, if interviews of those involved show that Trump’s claims were just a pretext, then that evidence might help prove Mueller’s case, but just the move to have Mueller fired might not be enough by itself.

Josh Blackman of South Texas College of Law in Houston addresses the question that I had had about whether wanting to do something, but not doing it constitutes a crime.
The question here is if the president could be punished for something he didn’t do. That is, could the fact that Trump sought Mueller’s termination, but changed course after his White House counsel threatened to resign, strengthen the case for obstruction of justice? The answer is no.

The president is surrounded by lawyers for a reason: to prevent him from making mistakes. Likewise, Article II, Section 2 of the Constitution affords the president the power to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” This provision ensures that the president can seek counsel from Senate-confirmed members of his administration, and lawyers in particular, about important legal questions.

Trump wanted to fire Mueller, and told his staff to do so, but after a threatened resignation, the president withdrew the order. This episode was not a public act, but an internal debate. It is not a federal crime, let alone an impeachable offense. Throughout American history, lawyers have consistently talked presidents out of making terrible decisions. We generally never hear about such stories, but the current White House is a sieve, where attorney-client communications spill out. In any event, we know that the process worked. Much to my pleasant surprise, President Trump—despite his mercurial bluster—consistently (but not always) listens to his lawyers.
Other professors think that this might be used as part of a pattern of behavior that indicates an attempt to obstruct justice. For example, here is Alex Whiting of Harvard Law School.
In an obstruction case against President Trump, it is unlikely that there will be a single piece of smoking-gun evidence. Rather, the case will be built on an accumulation of separate pieces of evidence that, taken together, will establish whether Trump had a corrupt intent to obstruct justice when he asked Comey to go easy on Flynn, and when he later fired Comey. Why? Because intent is almost always proved circumstantially. The only way to figure out what was inside Trump’s head when he acted is to look at what he said at the time, how he acted before and after, and his pattern of behavior with respect to the ongoing investigation of his election campaign.

The news that President Trump subsequently ordered Mueller’s firing—and backed down only after McGahn threatened to resign—adds considerably to an already very developed picture. Even before this news broke, there was compelling evidence that Trump in fact acted with a corrupt purpose when he took steps to derail the Flynn and Russia investigations. Remember: He cleared the room before speaking to Comey about Flynn, and he initially lied about his reasons for firing Comey. Those are not the actions of someone who believes he is properly exercising his power. Now we learn that even after the firestorm that followed Comey’s firing, Trump again tried to stop the investigation of his campaign, offering transparently specious reasons why Mueller had to be fired. Here then emerges a pattern of behavior: repeated attempts to stop the investigation accompanied by lies and false statements. What will Congress do when all of this evidence drops in its lap? Will they find some way to avoid drawing the obvious conclusions?
It's always difficult to judge someone's intent, especially with someone as mercurial as Trump. Rather than assigning malice and corrupt intent to his actions, I always lean to the pure stupidity explanation. He was angry about there being any sort of investigation into his actions and that of his family and campaign. So he ranted and started looking around ways to make it go away. Perhaps, his time on "The Apprentice" has gone to his head and he immediately wanted to fire somoene. So he tells the White House Counsel to fire Mueller. Then McGahn explains to him why that would be wrong. Trump still wanted to do it and so McGahn had to say he'd resign rather than do that. And, finally, rational heads prevailed.

Since Trump has a totally unjustified confidence in his ability to wing it in interviews, his lawyers have to be determined to keep him as far away as possible from an oral interview with Mueller's team. Bill Clinton, a trained lawyer, still created trouble for himself when he was interviewed by the special counsel. Does anyone think that Trump would be more circumspect and avoid a perjury trap?

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I'm teaching the unit on the Presidency in my AP Government class this week. One of the themes of the unit is the informal powers a president has, the powers not spelled out in the Constitution by which presidents have, over time, expanded their powers. And counter to that, we will be looking at what Congress has done to try to rein in the president and bureaucracy. I have a list of various measures that we'll be discussing, but I've come to see how the creation of inspectors general to report on the executive branch have come to play a key role. Susan Quinn writes at Ricochet to pay tribute to these stalwarts who have helped to expose problems throughout the bureaucracy. The law was created in 1978 and then expanded later. They are also tasked with overseeing the Whistleblower Protection Enhancement Act.
Two of the most high-profile investigations that have taken place in recent years include the discovery of 6,400 emails either to or from Lois Lerner of the IRS, and the recent discovery of thousands of text messages that “disappeared,” originally generated by Peter Strzok and Lisa Page. The tenacity and findings of the Inspectors General across departments are to be lauded; unfortunately, action on those findings has been sadly lacking.
Few people realize that the information from Lois Lerner and the Strzok-Page texts came to light only because of the work of inspectors generals.
As a layperson looking at the Lois Lerner activities, as well as the more recent Strzok/Page situation, the following statements describe at least three violations:

Use official authority or influence to interfere with an election;

Solicit or discourage political activity of anyone with business before their agency;

Engage in political activity while on duty, in a government office, wearing an official uniform or using a government vehicle.

Since the evidence is clear that there has minimally been mismanagement and potentially extreme political bias in the execution of their duties, how can Congress ignore these actions? When will they condemn these activities and insist that they be held accountable? Why bother to have an Inspectors General Agency if there are not consequences for malfeasance?

It seems to me that we have the tools we need to prosecute individuals who blatantly defy federal law. Under President Obama, people chose to defy these restrictions and were essentially allowed to do so. Don’t you think it’s time for Trump, Sessions, and the DOJ to clean house?

SNL had some fun making fun of the reluctance of liberals to say what they really think about the whole Aziz Ansari story.


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Media bias shows up most perniciously in what they choose to cover or not to cover. For example, the media are basically ignoring the embarrassing responses that the Democrats had to the Republican tax bill.
The establishment media have saved Democrats from embarrassment by refusing to cover their struggling attempts to explain away the positive economic effects the Republican tax bill delivered for the working class.

House Minority Leader Nancy Pelosi and other leading Democrats predicted the tax bill would be a disaster for the working class — “Armageddon” is how Pelosi described it — only to see more than three million American workers receive bonuses and pay raises as a result of the GOP tax cuts. Additionally, 90 percent of workers are expected to see an increase in take-home pay in 2018.
She's not the only one who talked like this. But, fortunately for her, the MSM have Pelosi's back.
But the establishment media have ignored the entire Democratic debacle. As of this article, the New York Times, the Washington Post and CNN have combined for zero articles about Pelosi’s “crumbs” comments, even as she has doubled– and tripled-down on them.
Now just imagine if a Republican had said something similar about working class people and how $1000 to $2000 a year is mere "crumbs."

Ross Douthat makes a reasonable suggestion to the Democrats - try to come to a compromise with Trump about DACA and immigration. He even has the nerve to suggest that there is a value to having White House immigration hardliner Stephen Miller in the discussions instead of having discussions between those politicians who agree basically on what immigration reform should look like. As Douthat reminds us - those bipartisan leaders are all on one side of the debate.
The problem with this approach is that it doesn’t represent the actual divisions in the country. Americans have become more pro-immigration since the 1990s, but there is still a consistent pattern when you ask about immigration rates: About a third of Americans favor the current trend, slightly fewer want higher rates, and about a third, like Miller, want immigration reduced.
They're not going to reach an agreement if they're only discussing reform among the third with whom they already agree. They keep waiting to finally win the argument and overcome the position of restrictionists.
But liberals have been waiting 12 years for that “eventually” to arrive, and instead Trump is president and the illegal immigrants they want to protect are still in limbo. So maybe it would be worth trying to actually negotiate with Stephen Miller, rather than telling Trump that he needs to lock his adviser in a filing cabinet, slap on a “beware of leopard” sign, and hustle out to the Rose Garden to sign whatever Durbin and Graham have hashed out.

Especially since last week, Trump and Miller actually made an interesting offer: an amnesty and even a path to citizenship for DACA recipients and other Dreamers, more generous than what many restrictionists favor and with no promise of the new E-Verify enforcements conservatives often seek, in return for a shift (over many years) to a skills-based policy and a somewhat lower immigration rate.

If you’re committed to the view that restrictionists can and must be steamrolled, you’ll respond to this offer the way many Democrats have — call it a “white supremacist ransom note,” punt on policy, and use the issue to rally your base in 2018.

But if you think that lasting deals are forged when all sides are represented, you might consider making a counteroffer: for instance, the same rough blueprint but with more green cards for skilled immigrants, so that Miller gets his cuts to low-skilled immigration but the overall rate stays closer to the status quo.

I don’t know if there’s a deal to be had along those lines; restrictionists might rebel and Democrats might simply not want a grand bargain with this president.

But a bargain that actually reflects the shape of public opinion, not just the elite consensus, can only happen with someone like Stephen Miller at the table.
The fact that so many on the left responded to the Trump proposal with contempt and accusations of racism indicates that they are less interested in some sort of compromise than they are in having the issue out there. Remember that Obama and the Democrats opposed immigration reform when George W. Bush proposed comprehensive reform back in 2007. Sure, there were many Republicans who opposed the proposal, but the Democrats were also reluctant to support the bill.

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Armageddon continues.
U.S. industrial conglomerate Honeywell International said on Friday that it expected to bring back at least $7 billion of the $10 billion in cash held overseas in the next two years, taking advantage of the newly enacted tax law.

Is anyone surprised that the NCAA under Mark Emmert was supine in face of reports of sexual assaults at Michigan State?
hough the NCAA has announced its intention to open an investigation into Michigan State’s athletic department, it remains unclear what exactly the purview of the investigation would be.

And, more importantly, why it’s taken so long to get involved.

NCAA president Mark Emmert was specifically alerted in November 2010 — six months after he was hired as the organization's president — to 37 reports involving Michigan State athletes sexually assaulting women.

Kathy Redmond, the founder of the National Coalition Against Violent Athletes, provided The Athletic with a copy of the letter she sent to Emmert urging him to better protect women with new, stronger gender violence policy measures.

And speaking of ignoring complaints about sexual behavior, Hillary CLinton's behavior when one of her campaign staffers was accused of sexual harassment seems rather typical for the woman who helped orchestrate the attacks on the women who accused her husband of sexual assault and other misbehavior. This is also the woman who ignored allegations against Harvey Weinstein when she was warned about him back in 2016 by Lena Dunham.
A senior adviser to Hillary Clinton’s 2008 presidential campaign who was accused of repeatedly sexually harassing a young subordinate was kept on the campaign at Mrs. Clinton’s request, according to four people familiar with what took place.

Mrs. Clinton’s campaign manager at the time recommended that she fire the adviser, Burns Strider. But Mrs. Clinton did not. Instead, Mr. Strider was docked several weeks of pay and ordered to undergo counseling, and the young woman was moved to a new job.

This is more evidence about why Coach Popovich is so smart to rest players. Bleacher Report looks at the role of fatigue in the unfortunate injury to Boogie Cousins.
That it occurred at the end of the fourth quarter isn’t a total surprise. According to a 2015 study by Jeff Stotts of InStreetClothes.com, a site specializing in sports injuries, 64 percent of in-game ruptures in the NBA since 2005 happened in the second half of games. That finding follows this report: fatigue or overuse contributes to Achilles tendinitis and ruptures, according to the Cleveland Clinic and other studies.

Cousins was coming off the best stretch of his career, but looking at his minutes totals, it was also perhaps the most taxing. On Monday’s phenomenal 44-point, 23-rebound, 10-assist performance in the double-overtime win over the Chicago Bulls, the 6’11”, 270-pound center played a career-high 52 minutes. No player on either team played more than 47 minutes. Cousins tied for the highest total that any player has clocked in a game this season (along with Russell Westbrook and Ben Simmons).

Cousins was clearly gassed after the game.

"My strength coach had the nerve to ask me, do I want to lift after this game? I almost lost it,” Cousins told the Associated Press’ Brett Martel after the game. “If I had some energy, we would have fought.”

The marathon outing may have been particularly grueling because he had been pushing his body into uncharted territory. Heading into that game, Cousins had been averaging a whopping 39.8 minutes per game in his previous 10 contests. He played in four overtimes in a nine-day span.

In sum, January was Cousins’ most taxing month of his career (in months with at least five games played)—he registered a career-high 38.3 minutes per game. Friday’s game was Cousins’ fourth in seven days.

Of course, peering through the annals of NBA history, plenty of centers at Cousins’ enormous size have averaged 40 minutes per game. If they could take it, why can’t today’s big men?

But minutes only tell half the story. Tim Duncan averaged 40.6 minutes per game in 2001-02 for a Spurs team that averaged 92.6 possessions per game. When you do the math using the NBA’s official data, Duncan played an estimated 78.3 possessions per game. Cousins this month? He was playing approximately 80.2 possessions a night when you factor in that the Pelicans have averaged 101.5 possessions, one of the speediest in the league. Such a pace would blow the doors off any Duncan team of the early 2000s.

What gets lost in the injury discussion is an appreciation of today’s high-octane pace of play and its effect on larger, heavier athletes like Cousins. The 27-year-old was in the midst of one of the most all-around dominant seasons in recent NBA history. He’s averaging 25.2 points, 12.9 rebounds and 5.4 assists per game. But he’s also leading the Pelicans in three-point makes and steals.
More and more coaches should adopt the Spurs' practice of resting their players. And a player should not be afraid to demand that sort of approach from his team if he wants to have a longer career.

Could the producers of the Grammys think of any better way to alienate a third to a half of America than by reading aloud from Michael Wolff's book, Fire and Fury? Given that the book is recognized as mostly being tales told by Steve Bannon, they were basically giving a microphone to Steve Bannon, a man they all despise. But, hey, they apparently think that the people are out there panting for more political attacks mixed in with their entertainment.

Add in that Michael Wolff has recently made a very ugly, sexist smear against Nikki Haley by baselessly accusing her of having an affair with Trump to get her job in the United Nations, you'd think that, in this moment of supposed sensitivity to the barriers women face in the marketplace, they wouldn't want to endorse the author of such an ugly attack. But now. And will any of the glitterati class, patting themselves on the back for hashtagging #MeToo, have a word of condemnation for Wolff insinuating that Haley has slept her way to the top? Of course not.
On Bill Maher’s HBO program, Wolff — author of a best-selling, fact-challenged book on the first Trump year — recently claimed he’d omitted an “incendiary” incident because he lacked “ultimate proof.”

But he invited people to “read between the lines” of a paragraph near the book’s end; when you do, “you’re going to say ‘Bingo!’ ”

The political Twittersphere then went viral over a sentence claiming Haley “had been spending a notable amount of private time” with Trump on Air Force One. Bingo, they concluded: The president and his UN envoy are having an affair.

“Highly offensive,” “disgusting” and “absolutely not true,” replied Haley, adding that she’s only been on Air Force One once — with plenty of witnesses.

This is par for the course: Journalists across the spectrum have slammed Wolff’s reporting as slipshod. His professed rule: “If it rings true, it is true.”

But people tend to believe sensational tidbits that reinforce their worldview. And Wolff’s gossip gives other outlets an excuse to repeat unverified and even phony stories with no need to even try confirming them.

And so, at the height of #MeToo, Haley gets slimed by the age-old sexist suggestion that she’s sleeping her way to the top.

“I see it now, I see them do it to other women,” she said this week.

Test of feminist principle: Who’ll stand up to defend Haley and denounce this outrage?
Stephen Miller nails the hypocrisy of the whole crowd.