Slate – Page 4 – immigrationcourtside.com

“DUH” OF THE DAY: Barr Is A Trump Flunky — Leah Litman Reports @ Slate

https://slate.com/news-and-politics/2019/04/obstruction-case-william-barr-doj-donald-trump.html

Photo By: Kimberly April Photography www.kimberlyapril.com

Litman writes:

It took Attorney General William Barr only one week from the release of the Mueller report to bring obstruction of justice charges against two governmental officials for interfering in a federal investigation. But the charges have nothing to do with the special counsel’s investigation into Russian interference in the election or the possible obstruction of that investigation.

Although the obstruction charges DOJ filed are not related to the Mueller report, they underscore just how far the attorney general bent over backward to spin the report in the president’s favor and how partisan the Department of Justice has become. The disparities between the two cases highlight how the Department of Justice, under Barr’s leadership, has become nothing more than a political arm of the Trump administration, particularly in its handling of possible obstruction charges stemming from the Mueller report.

The indictment against Judge Shelley Richmond Joseph, a Massachusetts district court judge, and Officer Wesley MacGregor, a Massachusetts trial court officer, alleges that the officers interfered with an Immigration and Customs Enforcement proceeding by preventing ICE from arresting an individual who was arrested on state charges and attended an arraignment hearing in state court. During the state court proceeding, Joseph asked an ICE officer to wait outside the courtroom while the court conducted the arraignment hearing. Earlier in the day, the judge had requested more information about one of the state charges in the case (a fugitive charge) after the prosecutor said the state would not seek to detain the defendant on the other charge (a drug charge).

After recalling the case, the judge observed that ICE was in the courthouse. The prosecutor then informed the court that the state did not believe the defendant was the fugitive from Pennsylvania for whom there was an arrest warrant and therefore believed that the fugitive charge was an error, which would mean that the defendant would be free to leave. The defense attorney, however, noted that ICE was convinced otherwise and suggested they would likely take the client into custody. The defense attorney then suggested that “the best thing for us to do is to … release him … and hope that he can avoid ICE.”

At that point, the judge noted the other alternative was to recall the proceedings again the next day and asked “ICE is gonna get him?” before directing the clerk to go off the record. The recording was turned off for 52 seconds, and when it resumed, the prosecutor renewed the claim that the defendant was not the person with a Pennsylvania warrant out for his arrest and moved to dismiss the fugitive charge against him. Because the state had already stated it would not seek to detain the defendant on the drug charges, the defendant was released, and the trial court officer escorted him through the back door.

This evidence provided the basis for Barr’s Department of Justice to indict the state judge and state officer for obstruction of justice and conspiracy to obstruct justice. Yet all of the reasons Barr has previously cited for opposing an obstruction investigation against the president suggest the Department of Justice should not have brought obstruction charges against Joseph and MacGregor either.

For example, in June, Barr wrote a memo as a private citizen arguing that obstruction laws should not “reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution.” Yet that is exactly what the obstruction-of-justice charges against Joseph and MacGregor cover. State judges do not persist with criminal charges that the district attorney has dropped, and state law does not require judges to detain individuals on the drug charges that remained. It was therefore “facially legitimate” and within the “discretion” of the judge not to detain the individual based on the drug charge. The judge also has total control of her courtroom and can decide through which doors to instruct people to come and go. And the state judge’s motive shouldn’t matter to the analysis because under Barr’s theory of obstruction, government officials can’t be charged with obstruction “based solely on his subjective state of mind” for “simply exercising his discretion in a facially lawful way.”

Or take Barr’s statement—given at a bizarre press conference just prior to the release of the Mueller report last week—that the president did not corruptly intend to obstruct the investigation because the president “was frustrated and angered by a sincere belief that the investigation was undermining his presidency.” A similar exculpatory argument could be made on behalf of Joseph and MacGregor. They, too, may have been “frustrated and angered by a sincere belief that” ICE’s investigations and presence in state courthouses undermined the integrity of state court proceedings. Or perhaps they were frustrated and angered by a sincere belief that ICE’s enforcement efforts were the result of the president’s apparent bias and animosity toward the Latino community.

Ultimately, the Justice Department’s indictment of Joseph and MacGregor is a reminder about how aggressively the federal government often reads the federal obstruction statute. For example, the indictment confirms that obstruction does not have to be particularly sophisticated or successful in order to constitute a crime—the trial court officer merely let the defendant out the back door, and the defendant was subsequently apprehended and now faces deportation.

It also demonstrates a contrast in the kind of evidence that often suffices to establish an obstruction-of-justice charge. In the case of Joseph and MacGregor, DOJ has some snippets of a courtroom conversation that indicated the judge wanted to do something she did not want publicly recorded and less than a minute without a recording. In the case of President Donald Trump and his associates, special counsel Robert Mueller compiled dozens of witnesses, contemporaneous notes, 10 separate incidents, 182 pages of a report, multiple instances of officials lying to investigators or not being forthcoming with them, and several damning instances of the president lying in an apparent effort to cover his tracks. All of this led Barr to his four-page summary conclusion that Trump had not committed a crime—a conclusion that flew in the face of Mueller’s findings.

The stark difference between the attorney general’s treatment of the obstruction case against Joseph and MacGregor and the obstruction cases at the heart of the Mueller report serves as a pointed reminder that Barr’s response to the obstruction issues raised by the Mueller report was partisan and unprincipled.

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Golly gee, who woulda thought that a guy who “auditioned” for his job by promising to turn the DOJ into “Trump’s personal law firm” to be used against the United States of America and its people while being paid by same USA would turn out to be exactly the type of unethical hack that he promised to be? I mean we expect Trump sycophants to lie about everything. But, Barr only lies about the law when it suits Trump’s purposes — he’s made good on his promise to help Trump degrade and destroy American democracy.

PWS0

04-27-19

PETER M. SHANE @ SLATE: Barr Disgraces & Debases The DOJ & American Justice: “Worse, his leadership surely sends a message to other Justice Department lawyers as to their expected priorities. This kind of leadership and the debasement of government lawyering it augurs will take years to repair, as it did in the wake of Mitchell himself. There is no way to begin that job until Barr is out of office.”

https://slate.com/news-and-politics/2019/04/william-barr-resign-mueller-report.html

Shane writes:

In no small part because of the performance on Thursday of Attorney General William Barr, history will treat his Justice Department as it treats the Justice Department under Richard Nixon’s one-time attorney general, John Mitchell—an institution compromised by rank partisanship and more committed to ideology than the rule of law. Barr’s spin on special counsel Robert S. Mueller’s report all but ignored the report’s damning findings, misrepresented significant parts of Mueller’s reasoning, and described President Donald Trump’s motivations and supposed cooperation in terms straight out of White House talking points. Barr engaged in word-splitting pettifoggery that would make even Bill Clinton blush. Barr is clearly compromised by the partisan goals of this White House to the point where he cannot be trusted in the job. He should resign immediately.

Barr started Thursday’s pre-report rebuttal by reiterating that “the special counsel found no ‘collusion’ by any Americans in the [Russian Internet Research Agency’s] illegal activity.” Using the word collusion was itself slippery given that collusion could take the form of an explicit illegal agreement or, in common parlance, just a “connivance,” or tacit encouragement, or assent to wrongdoing by another. It was precisely because of the ambiguity of collusion that the report avoids the term:

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” […] [C]ollusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.

In other words, Mueller did not find “no collusion”; what he found was insufficient “evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.” Mueller doubted he could prove beyond a reasonable doubt that participants in the June 9, 2016, Trump Tower meeting violated the federal election-law ban on contributions and donations by foreign nationals. Such proof would require both a demonstration of their willfulness and that the information received by the Trump campaign was “a thing of value” worth at least $2,000 for a criminal violation or $25,000 for felony indictment.

An inability to prove the elements of criminal conspiracy beyond a reasonable doubt hardly belies the Trump campaign’s tacit encouragement of or assent to Russian wrongdoing. Collusion of that sort is amply shown by the Mueller investigation’s documentation of over 100 contacts between the campaign and Russians hoping to tilt the election to Trump. Indeed, for encouragement, one need look no further than candidate Trump’s July 27, 2016, statement: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

Barr’s discussion of obstruction of justice is even worse for Trump. In his four-page account of the Mueller report, Barr said he and Deputy Attorney General Rod Rosenstein had determined from the Mueller report that no criminal obstruction of justice had occurred. He said they were not basing their conclusion on a view that sitting presidents could not be indicted: “Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” At today’s press conference, Barr tried to make it sound as if Mueller’s decision not to charge the president was also made without regard to that theory:

When we met with [Mueller] … we specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime.

Here is what the report actually states:

We considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. … Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments.

In short, for Barr’s statement to be regarded as truthful, you have to interpret the notion of “but for” cause very, very narrowly. Parsed narrowly, Mueller does not say that he would have charged a crime “but for” the OLC opinion. He also relied on “fairness considerations” noted in the OLC opinion. Saying, however, that Mueller’s failure to charge obstruction was not based on the Justice Department’s policy regarding incumbent presidents puts us in the same territory as wondering what “the definition of ‘is’ is.”

Barr’s tendentiousness is all the more notable if one reads just one paragraph further in the Mueller report: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”

Beyond this, Barr applauded Trump for taking “no act that in fact deprived the special counsel of the documents and witnesses necessary to complete his investigation.” This ignores Trump’s refusal himself to be interviewed, a critical omission in an investigation of a crime that turns significantly on a suspect’s state of mind. Barr further implicitly excused Trump’s outbursts directed at ending the Russia investigation as a reflection of Trump’s agitated state of mind: “There is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” When a reporter suggested his remarks were “quite generous to the president, including acknowledging his feelings and emotions,” Barr insisted “the statements about his sincere beliefs are recognized in the report.” However, the report offers no explicit conclusions about the president’s sincerity at all, which, in any event, would appear to be legally irrelevant as to his motivations.

In an earlier work discussing the importance of government lawyers to maintaining the rule of law, I wrote of the essential “self-discipline for those immediately involved in [executive branch decisions] to actually concern themselves with perspectives and interests other than the partisan agenda they all share.” The attorney general today showed none of that discipline. Worse, his leadership surely sends a message to other Justice Department lawyers as to their expected priorities. This kind of leadership and the debasement of government lawyering it augurs will take years to repair, as it did in the wake of Mitchell himself. There is no way to begin that job until Barr is out of office.

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Jeff “Gonzo Apocalypto” Sessions appeared to have put the title of “Worst Attorney General Since John the Con” out of reach. But, Barr is certainly giving both “Gonzo” and “The Con” a run for their money.

Considering that he took over a Department with “zero morale” that he has been able to further degrade its mission and reduce morale below zero so rapidly is certainly a major achievement.

Where do they find individuals so willing to debase our democracy in support of such a morally bankrupt and totally unqualified “leader” as Trump? How do these folks sleep at night? And, how do they keep getting confirmed?

PWS

04-20-19

BENEATH THE RADAR SCREEN: Forced Settlement Requires Trump Administration To Back Off From Illegal, Cruel, Racist, and Completely Stupid Attempt To Terminate Humanitarian Program For Central American Minors!

https://slate.com/news-and-politics/2019/04/trump-administration-settled-central-american-minors-parole-program-lawsuit.html

Dahlia Lithwick reports for Slate:

In a week that opened with the White House “cleaning house” at the Department of Homeland Security and ended with the president openly threatening to release detained immigrants into so-called sanctuary cities to “punish” his immigration reform foes, some good news has come in a major legal challenge to another secretive and “tough” immigration policy. On Friday afternoon, the government signed a settlement agreement in a massive class-action suit challenging the Trump administration’s termination of the little-known Central American Minors (CAM) parole program. As a result of that agreement, almost 3,000 vulnerable kids will have a chance to be reunited with their families in the United States.

The Obama-era CAM program was created in 2014, following news of a surge of tens of thousands of unaccompanied children fleeing violence in the Northern Triangle countries El Salvador, Guatemala, and Honduras. The initiative, intended to create a safe and lawful alternative to dangerous solo treks through Mexico, allowed lawful immigrants who lived in the U.S. to apply for refugee status on behalf of their children younger than 21 and certain eligible relatives. The secretary of homeland security was given case-by-case discretion to parole in foreign nationals for “urgent humanitarian reasons” or “significant public benefit” for those who perhaps didn’t meet the stringent definition of refugee but nevertheless merited consideration on the grounds of humanitarian relief. These eligibility determinations were made when the minors were still in their home countries so as to avoid dangerous solo travel via Mexico. Humanitarian parole would allow them to spend two years in the United States, without a pathway to citizenship.

The program stuttered to a stop almost as soon as Donald Trump took office. In response, a lawsuit was brought in June on behalf of the families of 12 minors whose lives were in limbo as the program languished. The suit, filed by the International Refugee Assistance Project (IRAP), one of the groups that first challenged the Trump administration’s travel ban, was on behalf of the more than 2,700 children who had already applied before the program was terminatebut had received no answer. Many of these applicants had already gone through months or years of processing and had already been approved by U.S. Citizenship and Immigration Services for relocation pending final medical and security checks. But the program was shuttered, first in secret, without any notice to the applicants, and then formally in August of 2017 with an unexplained mass rescission of conditional approval for parole status for nearly 3,000 children. Worse still, the plaintiffs alleged that USCIS had continued to accept money from applicant families—including $400 for DNA tests, $100 or more for medical exams, and $1,400 for each child’s plane ticket—long after the program had been decommissioned. In effect, they argued, the program was still taking applications on its website and accepting payments while rescinding everyone’s conditional approval en masse.

In December, a federal magistrate judge found that the cancellation of the program was illegal under the Administrative Procedure Act, which delineates how federal agencies propose and establish new regulations. Then, early last month, the same federal magistrate judge in San Francisco ordered the administration to restart the processing of CAM applications for those who had already been conditionally approved, finding that the government’s action was causing irreparable harm to the plaintiffs by preventing their children from escaping life-threatening danger. She gave the government until March 21 to begin processing these children at late stages of processing again and explicitly ordered that “DHS may not adopt any policy, procedure, or practice of not processing the beneficiaries or placing their processing on hold en masse” and “must process the beneficiaries in good faith.”

On Friday afternoon, the Department of Homeland Security entered into an agreement with the plaintiffs in the lawsuit, in which USCIS now agrees to process the approximately 2,700 people who had been conditionally approved for parole prior to the CAM parole program’s termination and agrees to process them under the pre-termination standards. That means that, for the families who have been waiting for years to be reunified in the U.S. with children facing horrific danger and violence in Central America, at least the process of attempting to reunify now begins again.

For S.A., the plaintiff whose name is on the IRAP lawsuit, that will finally mean the possibility of reunification with her daughter and small grandson. S.A. has lived lawfully in the U.S. since 2001 under a program designed to help citizens of countries experiencing armed conflict. She works for a lice-removal company in San Francisco. Her youngest daughter, who still lives in San Salvador, has been threatened with brutal gang violence. She and her baby son had been cleared in February of 2017 to travel to the United States and had paid nearly $5,000 for their flights, DNA tests, and other processing requirements at that time. Their approval was rescinded when the CAM program was canceled. Similarly situated teens in the lawsuit, fleeing from horrific gang violence and sexual abuse, will now at minimum see their applications processed as promised.

For Linda Evarts, the attorney with IRAP who litigated this suit, the agreement with the Trump administration is an unalloyed win for reunification of families: “We are so pleased that after many years apart our clients will finally have the opportunity to reunite with each other in safety. These families belong together here in the United States, and we are hopeful this settlement will allow for their swift reunification.” Given the Trump administration’s current stance that holds that all migrants, but especially those from Central America, are de facto criminals and rapists and gang members, this willingness to sign off on a settlement agreement suggests yet again that this border crisis is less about public safety than ugly political signaling.

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As shown here, it’s no mystery why our Central American policy is so totally screwed up. White Nationalist racism will always be a bad policy. And enabling cruelty and stupidity by voting the Trump Kakistocracy into office will have lasting adverse effects for the U.S.

PWS

04-12-19

LITHWICK & STERN @ SLATE: Will California’s Appeal To Conservative Jurisprudence Convince Conservative Judges In Litigation Against Trump’s Fake National Emergency?

https://slate.com/news-and-politics/2019/02/california-lawsuit-trump-emergency-wall-conservative-gorsuch.html

Dahlia Lithwick and Mark Joseph Stern write in Slate:

Last Friday, President Donald Trump declared a national state of emergency at the southern border, adding that it wasn’t one of those emergencies he actually “needed” to declare and then saying a bunch of other things. As he predicted, a coalition of 16 states filed a federal lawsuit on Monday night, seeking a preliminary injunction to prevent the president from acting on his emergency declaration. As he also predicted, that suit was filed in federal district court in California.

What Trump did not predict—and probably could not, given his tenuous grasp on the legal limitations of executive authority—is that Monday’s lawsuit is, at bottom, extremely conservative. The suit does not appeal to the justices’ empathy for vulnerable immigrants or question whether Trump’s racist motives might undermine the declaration’s legality. Instead, it relies upon ancient principles of separation of powers to make a very strong case that Trump has short-circuited the Constitution. It is not a lawsuit about equality, or dignity, but about the nuts and bolts that undergird the constitutional lawmaking process. It is wonky, and formal, terse, and unromantic. And if the Supreme Court’s conservatives have any consistency, Monday’s lawsuit should persuade them to block Trump’s wall.

The 16 plaintiff states center their 57-page complaint around a basic argument: that the president has violated the cardinal principle of separation of powers by trammeling Congress’ will to achieve his policy preferences. Trump, the lawsuit alleges, “has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border.” There is “no objective basis” for this declaration, as Trump himself has essentially admitted. Further, “[t]he federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall,” and unauthorized entries are “near 45-year lows.”

Much of the complaint details funding that will be diverted from National Guard and drug-interception projects favored by the states in order to build the wall instead. The plaintiffs say that grants them standing to sue in federal court since the president is redirecting money that would benefit their interests to a project that will not. But the states aren’t simply upset because they would have preferred that the money be used for military construction and law enforcement. They are upset because, they allege, the money has been taken from these projects and from their citizens to be used illegally.

Trump, the plaintiff states write, has “violated the United States Constitution’s separation of powers doctrine by taking executive action to fund a border wall for which Congress has refused to appropriate funding.” By “unilaterally diverting funding that Congress already appropriated for other purposes to fund a border wall for which Congress has provided no appropriations,” the president has run afoul of the Presentment Clause.

This lawsuit joins a series of others that have already been filed by watchdog groups. While they all argue that there is no actual emergency at the southern border, that is not the gravamen of their complaint. Instead of asking the courts to second-guess Trump’s intent, these challengers ask them to decide whether Trump had authority to act in the first place.

The answer, they assert, is no. The Presentment Clause is straightforward: For a bill to become law, it must pass both houses of Congress, then be presented to the president for approval. Yet Congress never passed a bill authorizing and funding the border wall Trump now demands. It never presented such legislation to the president for his signature. This is the stuff of Civics 101. Whatever powers the National Emergencies Act may grant to the president, a federal statute cannot override the Constitution. The executive cannot use funds Congress did not appropriate. He cannot amend statutes himself to create money for pet projects. Trump asked Congress for a large sum of money to construct a border wall; Congress resoundingly and provably said no. The National Emergencies Act does not give him leeway to contravene Congress’ commands.

These problems ought to be catnip for SCOTUS’ conservative justices—particularly Justice Neil Gorsuch. In his very first dissent on the Supreme Court, Gorsuch extolled the virtues of this pristine constitutional system. “If a statute needs repair,” he wrote, “there’s a constitutionally prescribed way to do it. It’s called legislation.” Gorsuch continued:

To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.

A year later, in his rightly celebrated opinion in Sessions v. Dimaya, Gorsuch hammered this same point home again. “Under the Constitution,” he wrote, “the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives.” The courts abdicate their responsibility when they ignore the Constitution’s “division of duties” between the branches of government. These “structural worries” form the bedrock of American constitutional governance, whose ultimate goal is to safeguard “ordered liberty.” These new challenges demonstrate that Trump is circumventing these “structural worries” and harming “ordered liberty” in the process.

There’s also clear precedent for allowing states to take up this kind of challenge. When President Barack Obama tried to defer deportation for the undocumented parents of American citizens and legal residents, the Supreme Court’s conservatives threw a fit. They accused the president of legislating from the Oval Office and acting without congressional approval. And they succeeded in blocking that program after Texas and 25 other states sued based on an allegation of the flimsiest of hypothetical harms. In that case, Obama was merely executing a statute that allowed him to set “national immigration enforcement policies and priorities,” not building a border wall by fiat in defiance of congressional appropriators. If a president can violate the cardinal principle of separation of powers by stretching congressional guidance, and the states can sue him for it, surely he commits the same constitutional sin against those states by flouting congressional commands.

Litigants have learned well, after two long years of arguing over the travel ban, that the five conservatives have little to no interest in probing what lies in the president’s heart. They simply don’t care about what might or might not be a pretext, or whether tweets should count. They want clinical analysis of formal constitutional authority and presidential power. California v. Trump offers that up on a silver platter: Whatever the president can do—whether his name is Obama or Trump—he cannot take funds Congress refused to appropriate and use them to thwart the will of Congress. No tears, no drama, no probing of the executive’s soul. Just the cornerstone of the Framers’ plan.

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The appeal to “conservative jurisprudence” certainly appeared to “score” with Circuit Judge Jay Bybee of the 9th Circuit and Chief Justice John Roberts in the recent East Bay Sanctuary case (asylum regulations). Can it bring over Justice Neil Gorsuch and others in California v. Trump?

On the other hand, Professor Aziz Huq, writing in Politico says the case is already over and Trump has won because of the Supremes’ prior “what me worry” tank job in Hawaii v. Trump, the so-called “Travel Ban 3.0 Case” which also involved a “Trumped up bogus national emergency” to fulfill a political campaign promise. https://www.politico.com/magazine/story/2019/02/19/trump-national-emergency-border-wall-225164

With due respect to Professor Huq, I think this case is different because Congress specifically considered Trump’s request and “reasoning” for wanting more “Wall money” and rejected it. Whether that difference “makes a difference,” in terms of result, remains to be seen. Stay tuned!

PWS

02-20-19

NOTE: An earlier version of this post misidentified the subject of the East Bay Sanctuary case — it was about the Trump Administration’s attempt to circumvent the asylum statute, NOT DACA, in which the Court has taken no action on the Government’s pending petition.

16 STATES SUE TRUMP ON BOGUS NATIONAL EMERGENCY — Nolan Says Trump Ultimately Likely To Prevail — “Slate 3” Appear To Agree!

https://www.washingtonpost.com/national/health-science/coalition-of-states-sues-trump-over-national-emergency-to-build-border-wall/2019/02/18/9da8019c-33a8-11e9-854a-7a14d7fec96a_story.html

Amy Goldstein reports for WashPost:

A coalition of 16 states filed a federal lawsuit Monday to block President Trump’s plan to build a border wall without permission from Congress, arguing that the president’s decision to declare a national emergency is unconstitutional.

The lawsuit, brought by states with Democratic governors — except one, Maryland — seeks a preliminary injunction that would prevent the president from acting on his emergency declaration while the case plays out in the courts.

The complaint was filed in the U.S. District Court for the Northern District of California, a San Francisco-based court whose judges have ruled against an array of other Trump administration policies, including on immigration and the environment.

Accusing the president of “an unconstitutional and unlawful scheme,” the suit says the states are trying “to protect their residents, natural resources, and economic interests from President Donald J. Trump’s flagrant disregard of fundamental separation of powers principles engrained in the United States Constitution.”

. . . .

Read the rest of Amy’s article at the above link.

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But, over at The Hill, Nolan Rappaport predicts that Trump ultimately will prevail:

Nolan writes:

House Speaker Nancy Pelosi (D-Calif.) and Senate Democratic Leader Chuck Schumer claim that President Donald Trump’s Southern Border National Emergency Proclamation is an unlawful declaration over a crisis that does not exist, and that it steals from urgently needed defense funds — that it is a power grab by a disappointed president who has gone outside the bounds of the law to try to get what he failed to achieve through the constitutional legislative process.

In fact, this isn’t about the Constitution or the bounds of the law, and — in fact — there is a very real crisis at the border, though not necessarily what Trump often describes. It helps to understand a bit of the history of “national emergencies.”

As of 1973, congress had passed more than 470 statutes granting national emergency powers to the president. National emergency declarations under those statutes were rarely challenged in court.

n Youngstown Sheet & Tube Co. v. Sawyer, which was decided in 1952, the Supreme Court overturned President Harry S. Truman’s proclamation seizing privately owned steel mills to preempt a national steelworker strike during the Korean War. But Truman didn’t have congressional authority to declare a national emergency. He relied on inherent powers which were not spelled out in the Constitution.

Trump, however, is using specific statutory authority that congress created for the president.

In 1976, Congress passed the National Emergencies Act (NEA), which permits the president to declare a national emergency when he considers it appropriate to do so. The NEA does not provide any specific emergency authorities. It relies on emergency authorities provided in other statutes. The declaration must specifically identify the authorities that it is activating.

Read more at https://thehill.com/opinion/white-house/430340-national-emergency-declaration-a-legal-fight-trump-is-likely-to-win

Published originally on The HIl.

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While many of us hope Nolan is wrong, his prediction finds support from perhaps an odd source: these three articles from Slate:

Nancy Pelosi Put Her Faith in the Courts to Stop Trump’s Emergency Wall

Big mistake.

By Daniel Hemel

https://slate.com/news-and-politics/2019/02/nancy-pelosi-trump-emergency-wall-fail.html

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Trump Is Trying to Hollow Out the Constitutional System of Checks and Balances

The other two branches might let him.

By PETER M. SHANE

https://slate.com/news-and-politics/2019/02/national-emergency-tragedy-trump-wall.html

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JURISPRUDENCE

Trump Isn’t Just Defying the Constitution. He’s Undermining SCOTUS.

The president defended his national emergency by boasting that he’ll win at the Supreme Court because it’s full of his judges.

By DAHLIA LITHWICK

https://slate.com/news-and-politics/2019/02/donald-trump-national-emergency-undermine-scotus-unconstitutional.html

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We’ll see what happens. While the arguments made by Trump in support of his “Bogus National Emergency” were totally frivolous (and, perhaps, intentionally so), the points made by Rappaport, Hemel, Shane, and Lithwick aren’t. That could spell big trouble for our country’s future!

Trump doesn’t have a “sure fire legal winner” here; he might or might not have the majority of the Supremes “in his pocket” as he often arrogantly and disrespectfully claims. Nevertheless, there may be a better legal defense for the national emergency than his opponents had counted on.

Certainly, Trump is likely to benefit from having a “real lawyer,” AG Bill Barr, advancing his White Nationalist agenda at the “Justice” Department rather than the transparently biased and incompetent Sessions. While Barr might be “Sessions at heart,” unlike Sessions he certainly had the high-level professional legal skills, respect, and the “human face” necessary to prosper in the Big Law/Corporate world for decades.

Big Law/Corporate America isn’t necessarily the most diverse place, even today. Nevertheless, during my 7-year tenure there decades ago I saw that overt racism and xenophobia generally were frowned upon as being “bad for business.” That’s particularly true if the “business” included representing some of the largest multinational corporations in the world.

Who knows, Barr might even choose to advance the Trump agenda without explicitly ordering the DOJ to use the demeaning, and dehumanizing term “illegals” to refer to fellow human beings, many of them actually here with Government permission, seeking to attain legal status, and often to save their own lives and those of family members, through our legal system.

Many of them perform relatively thankless, yet essential, jobs that are key to our national economic success. Indeed, it’s no exaggeration to say that like the Trump Family and recently exposed former U.N Ambassador nominee Heather Nauert, almost all of us privileged and lucky enough to be U.S. citizens who have prospered from an expanding economy have been doing so on the backs of immigrants, both documented and undocumented. Additionally, migrants are some of the dwindling number of individuals in our country who actually believe in and trust the system to be fair and “do the right thing.”

But, a change in tone, even if welcome, should never be confused with a change in policy or actually respecting the due process rights of others and the rule of law as applied to those seeking legally available benefits in our immigration system. That’s just not part of the White Nationalist agenda that Barr so eagerly signed up to defend and advance

It’s likely to a long time, if ever, before “justice” reasserts itself in the mission of the Department of Justice.

PWS

02-19-19

NOTE: An earlier version of this post contained the wrong article from Dahlia Lithwick. Sorry for any confusion.

“’DUH’ ARTICLE OF DA DAY” – Former FBI Acting Director McCabe Says “then–Attorney General Sessions [was] a Trump-like idiot and racist” – Gee, Seems Like That Was What Liz, Corey, & The Black Caucus Told Us – But McConnell Silenced The Truth & He & His GOP Cronies Subjected America To Perhaps The Worst & Least Qualified Attorney General In U.S. History!

https://slate.com/news-and-politics/2019/02/andrew-mccabe-book-jeff-sessions-irishmen.html

Molly Olmstead reports for Slate:

Former FBI Deputy Director Andrew McCabe’s new book, which details his frustrations with President’s Trump administration, has made it clear that his “disdain for Trump is rivaled only by his contempt for [Jeff] Sessions,” according to an assessment from Washington Post reporter Greg Miller.

According to Miller’s review of the book, McCabe saw then–Attorney General Sessions as a Trump-like idiot and racist who had “trouble focusing, particularly when topics of conversation strayed from a small number of issues,” failed to read intelligence reports, and jumbled classified material with publicly reported news.

The strangest detail from the book, though, had to do with Sessions’ thoughts on the FBI’s hiring practices. According to the Post:

The FBI was better off when “you all only hired Irishmen,” Sessions said in one diatribe about the bureau’s workforce. “They were drunks but they could be trusted. Not like all those new people with nose rings and tattoos — who knows what they’re doing?”

According to a Wall Street Journal review of the book, McCabe wrote in his book that Sessions was only interested in immigration issues. He obsessed over the connection between crime and immigration, and he believed that Islam was an inherently violent religion, according to the Post. When presented with a counterterrorism case, he would first ask where the suspect was born or where the suspect’s parents were from. “He blamed immigrants for nearly every societal problem and uttered racist sentiments with shocking callousness,” Miller concluded from McCabe’s book.

McCabe’s assessment is surprising in only that it comes so bluntly from a man who once was acting head of the FBI but now seems intent on speaking out against the men who made his professional and personal life so difficult for 10 months (before he was fired just hours before his planned retirement, blocking him from receiving his full pension benefits). Sessions has a long, long history of making racist and anti-immigrant comments, while also implementing racist and anti-immigrant policies. A non-exhaustive list includes: allegedly warning a black lawyer to “be careful how you talk to white folks”; calling the NAACP “un-American”; reportedly joking that he used to think the KKK was “OK” until he discovered some smoked marijuana; praising an 1924 immigration act promoted by Nazi-style eugenics; denigrating a judge in Hawaii as “sitting on an island in the Pacific”; fondly remembered George Wallace, America’s most famous segregationist politician, as “one of the most formidable third-party candidates in this century; and lauding “the Anglo-American heritage of law enforcement.”

As for actions, in Alabama, Sessions punished black activists, defended voter suppression tactics, and kept black judges off the federal bench. He opposed sentencing reform over the crack-cocaine disparity. He has opposed hate crime protections and defended the official display of the Confederate flag. He has regularly attended events hosted by anti-immigrant and anti-Muslim groups, which he maintains a close relationship with. He touted falsehoods about DACA and immigrants in general. And of course, he pushed, relentlessly, for deportations and prosecutions of undocumented immigrants and even refugees fleeing domestic and gang violence.

****************************************

Sessions is a living example of how someone can spend a lifetime “on the dole” as a so-called “public servant” without providing any meaningful positive service or contributions to the public good.

Compare this “life not so well lived” with the “real world” contributions of the many decent, hard-working, honest, and dedicated civil servants who were screwed over by Trump’s shutdown. Or, compare Sessions’s squandered, anti-social life with the significant “real life” contributions of many of the immigrants, both documented and undocumented, who came before me in Immigration Court over 13 years.

I’m not sure even the worst of the aggravated felons that I ordered deported did as much lasting damage to our nation and its future as did Sessions! He was a child abuser on a grand scale, and someone who used knowingly false narratives to send deserving refugees, particularly abused women, back to torture or even death in the countries from which they had fled. He was the architect of both family separation and the unbridled expansion of the “New American Gulag.”

He promoted hate, intellectual dishonesty, ignorance, bias, and intolerance of all kinds, and was an avowed enemy of kindness and human compassion. He even had the absolute audacity to cite the Christian Bible, the compassionate, merciful, inclusive, and forgiving teachings of one of the world’s greatest “outcasts,” in support of his own perverted, bias-driven, and totally un-Christian world view.

Oh yeah, and he had no management qualifications going into the job and proved, beyond a reasonable doubt, that he couldn’t manage his way out of a paper bag. Seldom in modern times has there been a more demoralized, mission-less, and dysfunctional mess than today’s Department of Justice. Even Watergate didn’t do as much institutional damage.

Sessions’s only real contribution to justice, due process, and the public good was the day he walked out of the U.S. Department of Justice for the last time. But, it will take years, if not generations, to repair the damage he has inflicted on the rule of law, our Constitution, honest government, and humane values.

Truly, Liz was right! This was one supremely unqualified dude!

PWS

02-16-19

“COURTSIDE” POLITICS: A HOLLOW SPEECH FROM AN EMPTY SUIT!

https://slate.com/news-and-politics/2019/02/state-of-the-union-trump-rhyme-women-usa.html

Jim Newell writes @ Slate:

Donald Trump turned to the most lethal of oratorical tools in Tuesday night’s State of the Union address: the rhyme. To summarize his argument that Democratic investigations into his administration could imperil America’s economic gains, he said: “If there is going to be peace and legislation, there cannot be war and investigation.” And then—copying directly from the prepared text here—the follow-up: “It just doesn’t work that way!”

In political speechwriting, flat attempts at cleverness are often made to paper over a total lack of substance, and this little rhyming number was no exception. Democrats in the chamber laughed at the line, just as they did when President Trump said, “If I had not been elected president of the United States, we would right now, in my opinion”—in my opinion!—“be in a major war with North Korea with potentially millions of people killed.”

The Democrats’ laughter wasn’t the over-the-top, fake guffaw that parties might prepare ahead of time for risible talking points. It was the sort of chuckling you do when you’re scrolling through your phone and only casually paying attention—exactly what many Democrats were doing throughout the speech—and hear something truly out of left field. It’s the way you might respond to someone who has nothing much to say, and no new tricks to force you to take him seriously.

Trump didn’t move Congress any closer to a deal on immigration, the most pressing matter currently facing Congress. (The expectations were so low, though, that negotiators were just happy he didn’t blow everything up.) If he was trying to get a border wall agreement—and he really didn’t seem like he was trying that hard—it wasn’t by putting something new on the table, a real concession that Democrats might consider. He resorted to the same scary warnings about the “tremendous onslaught” of “caravans” approaching the border (another chuckle line for Democrats) and once again used grieving families who’d lost loved ones as pawns in his insinuation that undocumented immigrants are naturally inclined to violence. In an ad-lib to satisfy his itch for hyperbole, he stated that he wanted legal immigrants “in the largest numbers ever” to come to the country, when in reality his administration turned down an offer in the last Congress to fund his entire wall because it didn’t cut legal immigration enough.

Anyway, it was all just words. They don’t mean anything, they haven’t worked in the past, they won’t work in the next 10 days. And everyone in the room knew it.

Trump seemed to think that he was skewering the Democrats by boldly declaring that he is prepared to stop socialism in its tracks, as if it had gotten particularly far along. “We are born free, and we will stay free,” he said. “Tonight, we renew our resolve that America will never be a socialist country.”

Was this supposed to be a dig at New York Rep. Alexandria Ocasio-Cortez? Judging from the look on her face and the chatter she was making with members around her, she was asking the same question. So she laughed. Whatever. It wasn’t worth the effort to get particularly mad at anything this guy said.

The only break from this yawning rendition of the Same Old Thing was when Democrats decided to hold a dance party in the middle of the speech. When Trump, in the prelude to a short section introducing the “first-ever government-wide initiative focused on economic empowerment for women in developing countries,” mentioned that “we have more women in the workforce than ever before,” Democrats decided to take over the room. The 89 House Democratic women, all dressed in white, and their male counterparts started cheering, high-fiving, and in the case of one New Hampshire Rep. Annie Kuster, raising the roof.

Trump played along, telling them not to sit down just yet, and then delivered a line about how “we also have more women serving in the Congress than ever before.” The celebration continued, eventually transitioning into a bipartisan chant of “U-S-A!”

During the extended cheering, no one seemed to be thinking about Trump at all. They were celebrating amongst themselves. Trump was just a piece of furniture along the wall of a room, a fact of life that didn’t need their gratification or their outrage. He was just … there.

*********************************

Lies, alternative facts, White Nationalist myths, racist “dog whistles.” IOW, same old same old from a parody of a leader who demonstrates his breathtaking ignorance, inherent meanness, lack of empathy, and spectacular lack of qualifications for the position he occupies without filling.

And the GOP sycophants who nodded, applauded, and refuse to stand up for America against this dangerous clown showed why progress for our future will depend on their being removed from office in large numbers.

Vladimir must have enjoyed last night. Just like he had it scripted.

PWS

02-07-19

POLITICS: METAMORPHOSIS: 🤥🤥🤥🤥🤥How Ralph Northam Morphed Into A “Trump-Style” Liar Before Our Eyes — Resign Now, Ralph, Before You Inflict Even Further Harm On Our Commonwealth & Our Nation!

https://slate.com/news-and-politics/2019/02/ralph-northam-is-lying.html

William Saletin writes in Slate:

Ralph Northam, the governor of Virginia, swears he’s telling the truth. On Friday, Northam confessed to appearing in a racist photo in a 1984 yearbook. On Saturday, after Democrats called on him to resign, he reversed himself and said it was a case of mistaken identity. “I will stand and live by my word,” Northam told reporters at an afternoon press conference. He quoted the honor code of his alma mater, the Virginia Military Institute: “A cadet shall not lie, cheat, steal, or tolerate those who do.”

I don’t know whether Northam is one of the people in the photo. But I do know he’s been lying in his responses to this story. The evidence is in his own words. Let’s take his denials, one by one.

1. He believed right away that he wasn’t in the picture. The photo appears in the yearbook of Eastern Virginia Medical School, where Northam was a student. It seems to have been taken at a party, and it appears on a page that bears Northam’s name, alongside what are clearly pictures of him. It shows one person in blackface and another in a Ku Klux Klan hood and robes. The two people are hard to identify. In a written statement that Northam read aloud at his press conference, he asserted that when he was first shown the photo, “I believed then and now that I am not either of the people in that photo.”

That denial contradicts Northam’s previous statements. The photo was initially posted on a conservative website, Big League Politics, on Friday afternoon. Reporters confirmed that it was in the yearbook. Around 6 p.m., Northam issued a statement acknowledging that it was “a photograph of me.” He apologized for “the decision I made to appear as I did in this photo.” Two hours later, he released a video statement in which he apologized for “my past actions,” “the decisions I made,” and “the harm my behavior caused.” Northam’s Friday statements, like his Saturday statement, were scripted, so he couldn’t have misspoken. Either he believed on Friday that he wasn’t in the photo—in which case his Friday statements were false—or he didn’t, in which case his Saturday statement was false.

Northam also told the Virginia Legislative Black Caucus that he was in the picture. According to three lawmakers, the governor confirmed in a Friday-night meeting with the caucus that he was in the photo. “Last night, from his mouth to my ear, he apologized to me for the mistake that he made,” Sen. Louise Lucas, a member of the caucus, reported on Saturday. Did Northam mislead the caucus? Or is he misleading everyone else now?

2. He knew he couldn’t have done it. This is a stronger denial, based on Northam’s moral certainty that he isn’t the sort of person who could have worn such costumes. At the press conference, he claimed that when he first saw the photo, “My first impression, actually, [was] that this couldn’t be me.” In fact, it was more than impression. “There is no way that I have ever been in a KKK uniform,” he declared. “I am not the person in that uniform. And I am not the person [in blackface] to the right.”

But if Northam was that certain of his innocence, why didn’t he say so on Friday? When he was asked at the press conference, he pleaded, “I didn’t know at the time.” He claimed to have confessed initially because “based on the evidence presented to me at the time, the most likely explanation [was] that it was indeed me in the photo.” He added, “It has taken time for me to make sure that it’s not me.”

Again, Northam’s story doesn’t add up. If he originally thought he was one of the people in the photo, or if he was uncertain about it, then it can’t be true that he was morally certain he’d never do such a thing. Nor does his denial square with what he told the black caucus on Friday night. Two members of the caucus, Del. Lamont Bagby and Sen. Lionell Spruill, say that when the group asked Northam which character he had played in the picture, he said he didn’t know. No one who confessed that degree of doubt on Friday night could stand before cameras on Saturday afternoon and honestly say there’s “no way” either of the characters could be him.

3. He could tell just by looking at the photo. “It is definitely not me. I can tell by looking at it,” Northam told reporters on Saturday. Later, he repeated, “If one looks at the picture, it’s not my picture.” That’s not consistent with the governor’s confessions of guilt or his confessions of uncertainty. The picture was the first piece of information he had. If it was sufficient to exonerate him, why didn’t he say so? When a reporter posed that question at the press conference, all Northam could say was, “I didn’t study it as well as I should.”

That’s just not credible. What changed between Friday night and Saturday morning wasn’t Northam sitting up late with a magnifying glass. It was two other things. First, based on the governor’s initial confessions, a wave of Democrats, including the Virginia Democratic Party and House Speaker Nancy Pelosi, announced that he should resign. Second, Northam contacted his former medical school classmates. At the press conference, he said they told him they had “never seen me in any outfit like that.” He also said he had asked a former classmate, “Is there a possibility, you think, that someone could have put a photo on the wrong page?” Northam said that this classmate told him photos had been misplaced “on numerous pages in this very yearbook. … Photos laid out on a table. One could mistakenly get put on the wrong page. This happened numerous times in this yearbook. And I suspect that’s what happened in this case.”

Northam presented these conversations with his classmates as evidence of his innocence.
And maybe that’s what they’ll turn out to be. But for now, they’re just evidence that he checked to see whether anyone in his class might have information that could support the case against him. Nobody remembers him wearing anything like the costumes in that picture. He has also found a witness who could testify that pictures were sometimes misplaced. So what Northam knows now—but didn’t know on Friday night—was that if he denies he’s in that photo, he might be able to get away with it.

I hope Northam isn’t in that picture. But one way or the other, he’s been lying.

*****************************

Sorry, Ralph, but forgiveness and redemption have to be earned, not demanded! And, lying, making a spectacle of yourself and our state, and insulting our intelligence with lies, contradictions, and obvious evasions aren’t a good start. Go now, before the Legislature has to act to remove you. You have become Donald Trump. And, that’s not a good thing for Virginia or our nation

PWS

02-03-19

MOLLY OLMSTEAD & MARK JOSEPH STERN @ SLATE: Administration Should Heed Judge Sullivan’s and Judge Tigar’s Warnings: “The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.”

https://slate.com/news-and-politics/2018/12/federal-judge-ruling-trump-domestic-violence-asylum-rules.html

Olmstead & Stern write:

A federal judge on Wednesday struck down Justice Department rules that made it harder for asylum seekers to make successful claims based on fear of domestic abuse or gang violence, offering yet another judicial blow to the Trump administration’s efforts to unilaterally rewrite immigration law.

In his ruling, Judge Emmet Sullivan of the U.S. District Court in Washington concluded that the policies—which were rolled out by former Attorney General Jeff Sessions in June—were “arbitrary” and “capricious,” violating federal immigration law as crafted by Congress.

In his June order, Sessions sought to reverse a 2014 decision by the Board of Immigration Appeals, which held that victims of domestic violence may qualify for asylum. The BIA found at the time that women who are persecuted by their husbands but unable to leave their marriages or obtain help from law enforcement constitute a “particular social group,” one of the factors that would give them a right to seek asylum in the United States. A quirk in immigration law, however, permits the attorney general to singlehandedly reverse BIA decisions—and that’s precisely what Sessions tried to do, asserting that victims of domestic violence are not a “particular social group” because they are defined by their “vulnerability to private criminal activity” rather than a specific protected trait. He held that these women do not suffer true persecution because persecution is “something a government does.”

Sessions’ logic extended to victims of gang violence, since they, too, face persecution from private individuals, not directly from the government. He claimed that affected applicants may only receive asylum status if they demonstrate that their home government “condoned” violence against them, or demonstrated “complete helplessness” to stop it. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim,” he wrote.

In response to Sessions’ ruling, the American Civil Liberties Union filed suit in August on behalf of a dozen asylum seekers, mostly women from Central America, fleeing sexual and physical violence. Asylum officers found the asylum seekers’ stories credible—but they were still scheduled for “expedited removal” because asylum officers found they did not have a “credible fear of persecution” under Sessions’ new rules.

On Wednesday, Sullivan rejected Sessions’ interpretation of the law. He found that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims.” Like other asylum-seekers, would-be refugees who bring these claims have a right to a credible fear interview; the attorney general cannot carve out an exception with no basis in the text of the statute. Sullivan then repudiated Sessions’ cramped definition of “persecution.” Under federal statute, the judge wrote, a refugee faces persecution if her home government is “unable or unwilling to control” violence against her. She need not prove that the government refused to help her, an overly stringent standard that Sessions had no power to impose.

Finally, Sullivan found that victims of domestic abuse and gang violence may receive asylum as members of a “particular social group.” Not every victim will be permitted to remain in the U.S. But members of social groups—such as married women trapped in abusive relationships—may prove that their government was unable to protect them from violence, thus qualifying them for asylum. And the government must grant all such applicants credible fear interviews to determine who qualifies. Thanks to Sullivan’s order, asylum seekers denied an interview under Sessions’ policy will now be allowed to make their case.

Wednesday is not the first time a federal judge has found that the Trump administration has overstepped its ability to interpret immigration law, crossing over into unlawful policy-making in its campaign to curb immigration. This past summer, a District judge in San Diego ruled that family separation violated immigrants’ due process rights and ordered that the government reunite families that were separated under Trump’s “zero tolerance” policy. And just this month, the 9^th U.S. Circuit Court of Appeals rebuked the administration for its attempt to rewrite a federal statute by denying asylum to immigrants who enter the country without authorization. The court affirmed an earlier decision by U.S. District Judge Jon S. Tigar holding that the new policy was unlawful. “Whatever the scope of the president’s authority,” Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

The Trump administration would do well to heed Tigar’s warning. Over and over again, the president and his allies have tried to deport more asylum applicants by misreading or simply ignoring immigration statutes. These actions are unlawfully capricious, as Sullivan sternly reminded the country on Wednesday. His message is clear: The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.

***********************************************

This Administration has total contempt for Federal Courts and the rule of law. Just look at the ways in which the usually disingenuous Sessions routinely abused that term, along with his many bogus narratives and “legal positions” that were thinly veneered White Nationalist restrictionist “talking points.”

And, the Solicitor General and career lawyers in the DOJ whose job is supposed to be to uphold legal and ethical standards as “officers of the court” have gone “belly up.” They are obviously afraid to “just say no” to some of the invidiously motivated and semi-frivolous legal positions put forth by this Administration, particularly by Sessions, that are tying up the Federal Courts.

As I have predicted, I think that this Administration will put an end to the de facto role of the Solicitor’s General’s Office as the “Tenth Justice” and has also destroyed the “extra credibility” that Federal Courts traditionally assumed from DOJ lawyers by virtue of their oaths of office and the idea that they “speak for justice” rather than presenting the often more parochial interests of an individual client. Perhaps it’s just as well as the much touted “independence” of the DOJ has steadily become more myth than reality over the past three Administrations.

That doesn’t mean that we shouldn’t expect better from DOJ lawyers. But, that’s not likely to happen without some “regime change” and a Senate that takes their “advice and consent” role more seriously.

PWs

12-19-18

MARK JOSEPH STERN @ SLATE ON WHY JUDGE BYBEE’S 65-PAGE EVISCERATION OF TRUMP’S LAWLESS ASYLUM ORDER IS SO IMPORTANT: “The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.”

https://slate.com/news-and-politics/2018/12/bush-judge-rejects-trump-asylum-plan.html

Stern writes:

If there were any lingering doubt that Donald Trump’s latest plan to curb asylum is flatly unlawful, Judge Jay Bybee quashed it on Friday.

In a meticulous 65-page opinion, Bybee—a conservative George W. Bush appointee—explained that the president cannot rewrite a federal statute to deny asylum to immigrants who enter the country without authorization. His decision for the 9^thU.S. Circuit Court of Appeals is a twofold rebuke to Trump, halting the president’s legal assault on asylum-seekers and undermining his claim that any judge who blocked the order is a Democratic hack. The reality is that anyone who understands the English language should recognize that Trump’s new rule is illegal. Like so many of Trump’s attention-grabbing proposals, this doomed policy should never have been treated as legitimate in the first place.

Friday’s ruling involves a proclamation that Trump signed on Nov. 9, ostensibly to address the “continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border.” The order alluded darkly to the caravan of asylum-seekers then approaching the border, which Trump tried and failed to exploit as a campaign issue. To remedy this “crisis” and protect “the integrity of our borders,” he directed the federal government to deny asylum to any immigrant who enters the United States unlawfully.

Ten days later, U.S. District Judge Jon S. Tigar halted the new rule, holding that it likely exceeded the president’s authority. Trump responded by dismissing Tigar, a Barack Obama appointee, as an “Obama judge.” The comment led to a rare rebuke from Chief Justice John Roberts, who told the AP: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

As Trump escalated his feud with Roberts, his Department of Justice appealed Tigar’s ruling to the 9^thCircuit. It faced a seemingly propitious panel: Bybee, Judge Edward Leavy, and Judge Andrew D. Hurwitz. Bybee is a very conservative jurist who authored the original “torture memo,” justifying the Bush administration’s brutal interrogation of detainees. Leavy is a staunchly conservative Reagan appointee; only Hurwitz, an Obama appointee, leans to the left. Under Trump’s partisan vision of the judiciary, the DOJ would seem to have a good shot at reviving the asylum rule.

But Bybee didn’t bite. In a crisp and rigorous opinion for the court, he wrote that Tigar was correct to conclude that the policy almost certainly violates the law. The problem, Bybee explained, is that Congress expressly provided asylum-seekers with the right that Trump now seeks to revoke: an ability to apply for asylum regardless of how they came into the country. The Immigration and Nationality Act states that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum in accordance with this section.” This provision implements the 1951 Convention Relating to the Status of Refugees, which the United States has ratified. It directs signatories not to “impose penalties [on refugees] on account of their illegal entry or presence.”

The plain text of the law couldn’t be clearer: Immigrants in the U.S. are eligible for asylum whether they arrived legally (through a “designated port of arrival”) or illegally. If the president wants to change that fact, he’ll have to convince Congress to break its treaty obligations and alter the law.

Obviously, the Trump administration has not persuaded Congress to overhaul asylum law. So it tried to work around the existing statute by allowing unauthorized immigrants to request asylum—then directing the government to deny their application. Bybee easily disposed of this semantical workaround. “It is the hollowest of rights,” he wrote, “that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact. … The technical differences between applying for and eligibility for asylum are of no consequence to a refugee when the bottom line—no possibility of asylum—is the same.”

In light of the proclamation’s fundamental illegality, Bybee, joined by Hurwitz, affirmed Tigar’s nationwide restraining order. Leavy dissented in a curious five-page opinion insisting that the INA grants the executive branch power “to bring safety and fairness to the conditions at the southern border.” His anemic analysis is no match for Bybee’s thorough demolition of the DOJ’s illogical position. It seems quite likely that a lopsided majority of the Supreme Court will eventually agree with Bybee’s majority opinion.

It is satisfying to see a “Bush judge” (in Trumpian parlance) hand the president such a stinging legal defeat. Roberts overstated the case in totally dismissing the role of partisanship in the judiciary; of course some judges are political. But for now, a majority of the federal judiciary remains willing to stand up to the president, at least when he issues blatantly illegal orders. Judges like Roberts and Bybee may let Trump manipulate ambiguous laws to do some very bad things to immigrants. But they are not willing to let the president ignore a clear and constitutional directive from Congress.

The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.

*********************************

Stern points out that contrary to Trump’s belief that he can bully, co-opt, and control the judicial system, in the way that other authoritarian fascists have done in the past, even so-called “conservative” judges have lines beyond which they won’t be pushed. And, lifetime tenure protects them from retaliation by Trump and his corrupt White Nationalist cronies.

Few things can be more important than having judges across the board, regardless of judicial philosophy, stand up to Trump and his lawless abuses of Executive Power as well as “pushing back” on a Department of Justice that has, with a few exceptions, lost its professionalism, moral compass, and courage, along with any semblance of independence.

PWS

12-10-18

TRUMP & HIS TOADIES ARE THE BIGGEST LOSERS: Lower U.S. Courts Forcing Scofflaw, Anti-American Administration To Follow The Law, & There Is Nothing That Trumpsters Hate More Than Being “Outed” & Held Accountable For Their Many Misdeeds!

https://slate.com/news-and-politics/2018/11/donald-trump-losing-courts-jurisprudence.html

Dahlia Lithwick reports for Slate:

We have just witnessed what can now—after the accounting of several races that went uncalled on election night—be described as an all-out shellacking for Trump and Trumpism. The people who knocked on doors and texted voters and drove people to the polls leading up to the midterms may be wondering what’s to be done between now and the 2020 election. The answer is simple: protect the courts.

This doesn’t just mean fighting for the integrity, scope, and independence of the Robert Mueller investigation, which is now under existential threat from a president who openly wants his new acting attorney general to blow the thing up altogether. As we wait for Mueller’s next move, it’s tempting to assume that whatever he may have is already enough to place the president in immediate and serious legal jeopardy. Maybe. In many ways even that result will depend on a robust and independent judicial branch—something this president has been tearing down since the 2016 campaign.

Between the impending conclusion of the Mueller probe and the promise of oversight from various Democratic-controlled House committees come January, it’s clear that the president is starting to panic. And it’s easy to see why—given his tax returns, financial dealings, Russian investments, and other wrongdoing being surfaced in litigation, he has a good deal to worry about.

But that brings us once more to the greatest and least appreciated place at which President Donald Trump is proving to be the losing-est loser of all: the courts. Because they happen so frequently, it’s almost impossible to keep track of all the massive and consequential rulings against this president and his administration that are logged every week and rarely viewed in the aggregate. But let’s try: Late Monday night, a federal judge issued a temporary restraining order blocking the president’s Nov. 9 rule that barred migrants from applying for asylum unless they made the request at a legal checkpoint. The judge’s order applies nationally. Last Friday’s decision—by a Trump-appointed judge—to side with CNN against the White House in a dispute about revoked press credentials is only the most recent iteration of a near-constant drip-drip of legal losses. Even with a bench now containing almost 1 in 6 Trump appointed judges (and these are not your President Bush–edition conservative judges), Trump mainly loses, and then loses some more.

It’s almost impossible to keep track of all the massive and consequential rulings against this president and his administration that are logged every week.

Here’s another set: On Nov. 9, a federal judge in Montana temporarily blocked construction of the Keystone XL pipeline, ruling that the Trump administration had failed to comply with the Administrative Procedure Act, which requires “reasoned” explanations for government decisions and reversals. (The president immediately decried the ruling as “political” and “a disgrace.”) Indeed, this is just the most recent in a line of environmental cases Trump keeps losing in the federal courts. One recent tally shows the Trump administration has actually lost in all but one of the legal challenges it’s brought in its efforts to undo Obama-era regulations. The government has either lost or ditched its position in 18 others. As a recent Brookings roundup notes, this 5 percent “win rate is far below the normal agency win rate, which averages 69 percent across eleven studies.”

But there’s so much more. Also in November, a federal judge allowed the massive emoluments lawsuit filed against Trump in Maryland and D.C. to proceed over the Justice Department’s objections. In August, a federal judge struck down the bulk of three separate executive orders seeking to hobble unions that Trump had signed in an attempt to make it easier to fire federal employees. While we were all looking for solace to the great media blackout that is the Mueller investigation, federal courts halted the Trump effort to ban transgender members of the military, stopped the effort to kill DACA, assisted in terminating the president’s circus-level vote fraud commission, and stymied efforts to defund sanctuary cities. In August, a Trump-appointed judge batted away a challenge to Robert Mueller’s appointment. Courts have acted swiftly and decisively to end Trump’s irresponsible and cruel immigration policies. In many of these cases there are three and four separate losses logged in different courts. As Fred Barbash noted a few weeks ago in the Washington Post, “by a very rough count, 40 to 50 federal judges have weighed in against the Trump administration in cases.”

This is not, as Barbash observes, because these are all a bunch of demented “judicial activists,” as former Attorney General Jeff Sessions once attempted to argue. Nor are they the “judges of the Resistance”—a phrase that obscures more than it illuminates. A good many of these jurists were appointed by Republican presidents and in some cases Trump himself. No, the Trump administration is still managing to lose a tremendous amount of its lawsuits despite the fact that the judicial branch has changed dramatically in the past two years and the Supreme Court itself now tilts to the political right.

As Barbash further clarifies, Trump loses so much at least partially because his administration must often contort itself into absurd postures to justify policies enacted by random tweet (as was the trans ban) or by vengeful tantrum (as was the sanctuary cities policy) or without proper procedures (the asylum changes). When agencies make abrupt and ill-considered policy changes, then send lawyers into courts to defend them, even the most conservative judge is apt to be frustrated. Trump also loses whenever courts take his tweeting or offhand comments into account, because they often undermine or even contradict stated legal arguments. As we saw last week in the CNN litigation, Trump loses when pretextual claims about Jim Acosta assaulting a White House intern are exposed as the pretextual—that means false—claims they are. Judges tend to find all this less amusing than you might think.

Regardless of inclination or ideology, most judges still prefer facts to alternative facts, and reasoned discourse to free-flowing policy by hissy fit. And regardless of inclination or ideology, most judges still don’t like lies or liars. And regardless of inclination or ideology, most judges favor sobriety, stability, and the integrity of the judicial branch to nihilist attacks on everyone and everything that is fact-based. Indeed, it’s entirely possible that judges are as totally exhausted by the lurches and feints of the first Honey Boo Boo presidency as the rest of us.

Is everything perfect? No. As long as Mitch McConnell draws breath, more and more unsuitable Trump judges will be mashed through the Senate and confirmed, regardless of qualifications. And the Supreme Court, we must recall, ended up reversing the lower court rulings on the travel ban, deciding it was in no position to question the president’s integrity or motivations. The Supreme Court could stymie many of the important legal reversals noted above as well, but it’s worth remembering that it only hears about 70 cases a year. It doesn’t want to be in the business of rubber-stamping every crazy idea Trump bleats out, not if it cares about its own public approval and that of all the courts below. Even the Supreme Court, even this Supreme Court, doesn’t want to go all in on all of it. And the losses are adding up.

It’s easy to miss the way this administration is getting trounced in the courts in part because it happens so often that we are almost inured to it, or because the courts are in fact behaving as they have largely done: as a quiet, meticulous check on that which is persistently unlawful and overreaching. It would be more newsworthy if courts behaved like rubber stamps every time the administration produced another ill-conceived rule change. David Cole, the national legal director of the ACLU, who wrote about this last year, puts it this way in an email:

The courts have ruled against the Trump administration consistently and appropriately. They have ruled against the administration on family separation, the revocation of DACA, punishing sanctuary cities, arbitrarily detaining asylum-seekers, barring young women in federal custody from obtaining abortion, expelling Jim Acosta from the White House press briefing, holding a US citizen as an enemy combatant without chargers or access to a lawyer, and banning transgender individuals from the military. We told Donald Trump we’ll see you in court, and we have, and for the most part, the courts have stood up for the rule of law against an administration that seems not to understand what it means.

To be sure, there is still a great deal to be worried about. Competent partisan hack Jeff Sessions is soon to be replaced by less competent partisan hack Matt Whitaker. If Whitaker—whose appointment as acting attorney general may not be legal—opts to deploy the DOJ’s astonishing power to do harm to civil liberties and basic freedoms, a lot of damage can be done in the coming months. That appointment is itself now subject to multiple legal challenges, which means that the man tasked with defending the Trump administration against the raft of legal challenges is himself the subject of a raft of legal challenges.

People who knocked on doors last month to protect democracy could continue that same work by expressing their support for Mueller and demanding a qualified attorney general. And the same reasoning can apply to the need to stand up for the judicial branch every time the president threatens, dismisses, or insults a judge or ruling. It’s also worth keeping in mind that all of these institutions depend on public support, and few of them punch back when the president attacks them. We need to support an independent judiciary for all the same reasons we have often failed to notice how effectively it has held Trumpism at bay. Because, despite being smacked around like a tetherball for two years, the courts have, to a large degree, acted soberly and with restraint. That’s not because judges have all, en masse, joined the “Resistance.” It’s because we still have a judiciary that resists that which is apparently still unlawful.

**********************************************

Like most would-be autocrats, Trump is a loser. With the exception of the Supreme majority’s “dive” on the Travel Ban case, the losses have been widespread, totally deserved, and have come from Federal Judges appointed by Presidents of both parties. And the good thing is that despite the Supreme’s failure to back the rule of law in the Travel Ban cases, the majority of Federal Judges have continued to uphold the law and the Constitution by rejecting the Trump Administration’s dishonest and unethical abuse of Executive authority.

PWS

11-21-18

GONZO’S WORLD: SNL BIDS ADIEU TO “EVIL ELF!” – See It Here!

https://slate.com/culture/2018/11/jeff-sessions-robert-mueller-robert-de-niro-kate-mckinnon-saturday-night-live.html

BROW BEAT

Jeff Sessions and Robert Mueller Say Their Goodbyes on Saturday Night Live, With a Little Help From Kate McKinnon and Robert De Niro

By MATTHEW DESSEM

NOV 11, 20184:47 AM

Friends to the end.

NBC

It’s been an emotional week for people who love Jeff Sessions, assuming such people exist. On the one hand, Donald Trump fired Sessions the day after the election in favor of an unqualified loyalist who used to sit on the board of a hilariously fraudulent patent marketing company. On the other hand, once Sessions skulks back to Alabama, Kate McKinnon will have no further reason to play him on Saturday Night Live, which will probably be good for his reputation. But there was no way SNL would let a walking caricature like Sessions leave the national stage without a kick in the ass on his way to the wings, so McKinnon glued on her Jeff Sessions ears this week for what might be the very last time:

Sketches like this one, in which one celebrity caricature after another marches in, does his or her thing, then leaves, almost always suffer from a lack of momentum. The payoff here, the surprise appearance of Robert De Niro as Robert Mueller, is no substitute for rising action, not least because De Niro’s performance isn’t exactly worthy of Taxi Driver. Some of the individual jokes are hilarious—see, e.g., Sessions’ mug-within-a-mug—but as a whole, the sketch feels like one damn thing after another, for much, much too long. In that sense, it brilliantly captures the essence of the Trump administration, with or without Jefferson Beauregard Sessions. Best of luck to the cast member who has to squeeze into a bald cap to play Matthew Whitaker next week.

https://youtu.be/EGy-xpK-1mw

********************************************

Kids in cages, weeping parents, families separated, refugees turned away, African-Americans brutalized by the police, domestic violence victims sent back to torture by their abusers, minority voters suppressed, prisons overflowing with minor offenders, American youth denied opportunities and threatened with removal, scientific evidence ignored, intentionally clogged courts, open season on the LGBTQ community, vigorous defense of hate speech (but not the right to protest), glorification of bias masquerading as “religion,” judges turned into border agents in robes, judges and lawyers publicly dissed, un-prosecuted corruption in government, rampant gun violence mostly generated by disgruntled White guys, journalists attacked, bogus efforts to keep migrants from knowing their rights, lies to Congress — Man-o-Man, this Dude was just a barrel of laughs and good times! Unless, of course, you were one of the millions of men, women, and children in America who was permanently damaged or traumatized by his racist scofflaw approach to “justice” and his failure to enforce the Constitutional rights due to everyone in America. Not exactly “Janet Reno’s Dance Party!”

PWS

11-12-18

CONGRATS: Kansas Removes Racist Grifter Kris Kobach From State-Funded Welfare Rolls, Ending Years Of Abuse Of Public Funds!

https://slate.com/news-and-politics/2018/11/kris-kobach-loses-kansas-governors-race.html

Mark Joseph Stern write in Slate:

THE SLATEST

Notorious Vote Thief and Incompetent Gubernatorial Candidate Kris Kobach Loses in Kansas

By MARK JOSEPH STERN

Failed Republican gubernatorial candidate Kris Kobach speaks at a rally with President Donald Trump in Topeka, Kansas.

Scott Olson/Getty Images

The nation’s most notorious vote thief has gone down in flames.

On Tuesday night, Kansas Republican Secretary of State Kris Kobach lostthe governor’s race to Democrat Laura Kelly. Kobach built his career on voter suppression, whipping up nativist fervor by claiming that a large number of noncitizens are casting ballots. (They aren’t.) He led Donald Trump’s failed voter-fraud commission, then eked out a victory in the Republican gubernatorial primary against current GOP Gov. Jeff Colyer. But even in deep-red Kansas, voters appear to have rebelled against his brand of paranoid, xenophobic conservatism.

Although Kobach built up a national profile as a formidable politician, he is, in fact, deeply incompetent. He spent years promoting Crosscheck, a program that ostensibly detected double voting but actually had an error rate of 99.5 percent. He pushed a law that compelled Kansans to provide proof of citizenship in order to register to vote, then defended it himself at trial—at which point it became clear that he doesn’t understand basic rules of civil procedure. A federal judge repeatedly reprimanded him during the hearings, then ruled against him and held him in contempt of court.

As Kobach struggled to defend his signature law, he led Trump’s voter-fraud commission right off a cliff. His own co-commissioners openly criticized him for lying about the existence of fraud. One sued him for concealing key documents from him; after a federal judge demanded that Kobach turn over the documents, he disbanded the commission instead. To save face, Kobach claimed he would take his work to the Department of Homeland Security—a claim that the DHS swiftly rebuked.

Then there was the 2018 Republican primary in Kansas. From an administrative standpoint, the election was an absolute disaster. Officials failed to predict major turnout, leading to endless lines and delays. A number of new voting machines, on which the state spent millions of dollars, also failed. The blame fell upon Kobach, who spent his tenure as secretary of state pursuing phantom voter fraud instead of doing his job and ensuring that elections ran smoothly.

Now Kobach has faced the biggest humiliation of them all: He lost to a Democrat, in Kansas. All his voter suppression schemes—his proof-of-citizenship measure, his poll closures—could not pull him over the finish line. Kobach alienated much of the Republican establishment during his brawl with Colyer, and his flagrant maladministration of the voter fraud commission seems to have hurt his relationship with Trump. There is simply no clear path forward for his political career after Tuesday’s defeat. Kobach has always been a loser. Now he is a loser out of a job.

******************************************

For years, Kobach has been misusing his (largely ministerial) position as Kansas’s Secretary of State as a cover for his nationwide effort to implement a bogus White Nationalist agenda that encourages voter suppression and invidious discrimination against Latinos and other individuals of color in various states and localities.

Judges throughout the country have largely slammed his efforts, leaving taxpayers holding the bag with huge legal bills. As noted by Stern, Kobach, a congenital liar who operates in an “ethics free zone,” has been held in contempt of court. Also as noted by Stern, he has royally screwed up his minor, yet potentially significant, job as Kansas Secretary of State. That’s the kind of “expertise” and “leadership” that has spawned the Trump-Sessions racist White Nationalist takeover of the GOP.

Thanks and congratulations to Kansas voters for having the wisdom and decency to “just say no” to this toxic dude, and force him to go out an earn an honest living. Something for which to date he has shown little aptitude. All goes to show that a Yale Law Degree isn’t proof against being a biased incompetent idiot.

PWS

11-09-18

MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!

https://slate.com/news-and-politics/2018/11/jeff-sessions-donald-trump-resign-disgrace.html

Stern writes:

Attorney General Jeff Sessions resigned on Wednesday at the request of Donald Trump. He served a little less than two years as the head of the Department of Justice. During that time, Sessions used his immense power to make America a crueler, more brutal place. He was one of the most sadistic and unscrupulous attorneys general in American history.

At the Department of Justice, Sessions enforced the law in a manner that harmed racial minorities, immigrants, and LGBTQ people. He rolled backObama-era drug sentencing reforms in an effort to keep nonviolent offenders locked away for longer. He reversed a policy that limited the DOJ’s use of private prisons. He undermined consent decrees with law enforcement agencies that had a history of misconduct and killed a program that helped local agencies bring their policing in line with constitutional requirements. And he lobbied against bipartisan sentencing reform, falsely claiming that such legislation would benefit “a highly dangerous cohort of criminals.”

Sessions’ attack on immigrants was equally ruthless. He compelled immigration judges to order the deportation of more unauthorized immigrants and punished them when they did not. He barred most victims of domestic violence from seeking asylum in the United States, deporting survivors back to their persecutors. He attempted to rescind the Deferred Action for Childhood Arrivals program, subjecting hundreds of thousands of young immigrants to deportation but was too inept to do so lawfully. He tried to prevent states and cities from protecting immigrants within their borders. And he implemented the “zero tolerance” family separation policy, imprisoning thousands of individuals at the border for the misdemeanor of unlawful entry, then seizing their children and locking them in cages. (Hundreds of these kids are still separatedfrom their parents.)

Meanwhile, Sessions mobilized the DOJ’s attorneys to torture immigrant minors in other ways. He fought in court to keep undocumented teenagers pregnant against their will, defending the Trump administration’s decision to block their access to abortion. His Justice Department made the astonishing claim that the federal government could decide that forced birth was in the “best interest” of children. It also revealed these minors’ pregnancies to family members who threatened to abuse them. And when the American Civil Liberties Union defeated this position in court, his DOJ launched a failed legal assault on individual ACLU lawyers for daring to defend their clients.

As he oversaw family separation, forced birth, and mass incarceration, Sessions found time to degrade LGBTQ Americans and their families. He issued a memo alleging that federal civil rights laws do not protect transgender employees, a position the Justice Department recently reiterated to the Supreme Court. He also argued that these civil rights laws do not protect gay people. His DOJ defended Trump’s ban on open transgender military service by claiming that trans people are disordered deviants. Under his leadership, the DOJ also asked the Supreme Court to rule that many businesses have a First Amendment right to turn away same-sex couples. (Sessions gave a speech to the anti-LGBTQ group that brought that case to SCOTUS, thanking them for their “important work” on behalf of religious liberty.)

The guiding principle of Sessions’ career is animus toward people who are unlike him. While serving in the Senate, he voted against the reauthorization of the Violence Against Women Act because it expressly protected LGBTQ women. He opposed immigration reform, including relief for young people brought to America by their parents as children. He voted against the repeal of Don’t Ask, Don’t Tell. He voted against a federal hate crime bill protecting gay people. Before that, as Alabama attorney general, he tried to prevent LGBTQ students from meeting at a public university. But as U.S. attorney general, he positioned himself as an impassioned defender of campus free speech.

While Sessions doesn’t identify as a white nationalist, his agenda as attorney general abetted the cause of white nationalism. His policies were designed to make the country more white by keeping out Hispanics and locking up blacks. His tenure will remain a permanent stain on the Department of Justice. Thousands of people were brutalized by his bigotry, and our country will not soon recover from the malice he unleashed.

His successor could be even worse.

*****************************

Can’t overstate the intentional damage that this immoral, intellectually dishonest, and bigoted man has done to millions of human lives and the moral and legal fabric of our country. “The Father of the New American Gulag,” America’s most notorious unpunished child abuser, and the destroyer of Due Process in our U.S. Immigration Courts are among a few of his many unsavory legacies!

The scary thing: Stern is right — “His successor could be even worse.” If so, the survival of our Constitution and our nation will be at risk!

PWS

11-06-18

JAMELLE BOUIE @ SLATE: GOP Might Find That Their Message Of Bigotry & Racism Eventually Will Have Diminishing Returns!

https://slate.com/news-and-politics/2018/10/donald-trump-bigotry-midterms.html

Jamelle Bouie writes in Slate:

Donald Trump runs on fear. Once again, he’s closing out an election season with a direct appeal to the darkest impulses of the American psyche. “The Democrats don’t care what their extremist immigration agenda will do to your communities,” he said at a rally in Arizona last week, packing xenophobia into the false assertion that “Democrats want to throw your borders wide open to deadly drugs and endless gangs.” On Monday, he did the same when talking about the caravan of Honduran migrants heading for the United States, falsely saying that “Criminals and unknown Middle Easterners are mixed in” with the group.

Trump obviously believes his strategy of riling voters up with bigotry is effective. What’s striking is the political press agrees with him. “This pure brute force from Trump could work,” notes NBC News, “because there is no equal response from Democrats.” On Twitter, the New York Times’Maggie Haberman asserted similarly that this “controversial, race-baiting” rhetoric has been “effective for him politically.” And looking at these remarks in the context of the 2016 election, Axios asserts that “immigration and stoking fear about Mexican immigrants propelled Trump to the White House.”

But this conventional wisdom—that bigotry wins votes and elections—depends on imprecision around the idea of “effective.” The media has taken the fact that Trump became president aftermaking those appeals as evidence they broadly work; the fact that Republican primary voters endorsed Trump’s nativism and xenophobia has somehow become proof that it’s a viable election strategy whenever it’s deployed. But neither claim—and both are key assumptions made by political analysts in the Trump era—stands to serious scrutiny. And while Trump’s anti-immigrant rhetoric undoubtedly resonates with many Republicans, there’s no strong indication that it works on its own as an “effective” message among Americans writ large.

Republicans beyond Trump have made a similar gambit that racist insinuation will energize their supporters and move voters in their favor. In a predominantly white congressional district in upstate New York, GOP political groups have attacked Democrat Antonio Delgado, who is black, as a “big city rapper” who favors “handouts” from the government. In Florida, Republican gubernatorial candidate Ron DeSantis has attacked his black opponent, Andrew Gillum, in terms that evoke racist tropes. In California, Republican incumbent Rep. Duncan Hunter has attacked his Arab-American challenger, Ammar Campa-Najjar, as a “security risk” with potential ties to “radical Islam.”

The proof of concept behind this strategy is Trump’s successful election. Trump relied on racism and anti-immigrant sentiment to drive his message, the argument goes, and while it may have produced some defections among college-educated whites, it also attracted enough whites without degrees to win narrow victories in places where they formed a large share of the voting population, including Michigan, Pennsylvania, and Wisconsin. But missing from this narrative is the critical influence of Trump’s extremely optimistic message on jumpstarting the economy, which co-opted and muddled Hillary Clinton’s rhetoric on issues like wages and infrastructure. To voters cross-pressured by cultural conservatism on one end and liberal economic views on the other, Trump promised a synthesis attuned to their identities as blue collar white Americans—they could have both.

It’s that synthesis which—along with Clinton’s stark unpopularity and extraordinary events like the FBI’s intervention—produced Trump’s victory. In its absence, Republicans have not fared nearly as well, even as they’ve tried to replicate the president’s strategy of open and explicit bigotry.

There’s concrete evidence of this. In the final weeks of the 2017 Virginia gubernatorial race, Republican Ed Gillespie remade himself as a demagogue by playing on white racial resentment with ads blasting Democrat Ralph Northam for “sanctuary cities” and the MS-13 gang. He promised to protect the state’s Confederate monuments and tried to tie Northam to professional football player Colin Kaepernick’s protest against police brutality. Gillespie lost by 9 percentage points, and Virginia Republicans came one seat from losing an almost 20-year majority in the House of Delegates.

Alabama Republicans similarly chose an authentically Trump-like figure, Roy Moore, to replace Jeff Sessions in the Senate. He ran a Trump-like campaign of dishonesty, demagoguery, and casual bigotry. He was even accused of sexual misconduct by multiple women who alleged inappropriate behavior when they were teenagers and he was an attorney in his 30s. Despite this controversy, he was favored to win, running in an electorate that hadn’t chosen a Democrat for statewide office in more than a decade. But a Democratic surge, and Republican disenchantment, produced a surprise win for Doug Jones, the Democratic nominee.

Most recently, the Republican candidate in the special election for Pennsylvania’s 18^thCongressional District, Rick Saccone, described himself as “Trump before Trump was Trump.” He ran as an acolyte of the president in a district that politically and demographically favored the Republican Party. He lost by a slim margin to Democrat Conor Lamb.

The key difference between Trump and these candidates? Economic messaging. Trump rejected conservative economic wisdom on retirement spending and other social programs during his presidential campaign, but neither Gillespie nor Moore nor Saccone had an economic agenda distinct from the national Republican Party. (Saccone ran away from the president’s signature legislative accomplishment—the Tax Cut and Jobs Act—on account of its deep unpopularity.) So while they could mobilize core supporters with appeals to racial threat, they couldn’t reach those cross-pressured voters, compete with conventional Democratic candidates, or overcome an active and energized Democratic electorate.

For further evidence, you can look to Senate races in Michigan, Pennsylvania, Ohio, and Wisconsin. As a candidate, Trump promised to tailor his economic policy to their needs; as president, he pursued large, upper-income tax cuts and pushed deep cuts to Medicaid and other social insurance programs. The result has been backlash against the GOP as Democrats recover lost ground even in the face of the president’s racial demagoguery. Some of this is Democratic mobilization against the president and his constant presence in national life, and some of it reflects shifting partisan loyalties among white voters with college degrees. But some of the change is also Democratic improvement with voters who backed Trump two years ago.

Republican politicians wouldn’t be scrambling to announce their support for key parts of the Affordable Care Act—and President Trump wouldn’t have fabricated a middle-class tax cut—if the party weren’t aware of the necessity of a viable economic message. And the extent to which voters don’t believe Republican rhetoric on health care and taxes might actually explain the sudden increase in the intensity of the president’s attacks on undocumented immigrants and other marginalized groups, as well as his decision to embrace terms like “nationalist” to emphasize his commitment to a racialized vision of citizenship and belonging.
His economic bet is not working this time, so he’s leaning hard on what he perceives as his other strength.

The energy is so high and the political environment so unique that it’s difficult to project an outcome for November, even if polls continue to show a Democratic advantage in the race for the House and a Republican one in the race for the Senate. President Trump and his allies clearly hope that by stirring the demons of American life, they can create an electoral barrier high enough to stop any potential blue wave.

But the elements that rendered Trump effective in 2016—a heterodox economic message, an unpopular opponent, and outside influences—do not exist in 2018, and the media would do well to remember that. Republicans can still fan the flames of fear, but there’s no guarantee that won’t generate Democratic energy in opposition.

Racial hysteria has been a part of many winning campaigns in our country. But it’s rarely the only part. Trump is gambling that it, and it alone, can carry him and his party past the finish line for a second time. But this is a gamble, and one that is more likely to fail than they seem to realize.

**********************************************

Yup. Ultimately, White Nationalism, no matter how viscous, dishonest, and toxic, can’t halt the march of demographics. And, Trump and the GOP are working hard at offending, insulting, and disrespecting virtually every group in the U.S. except straight, right-wing Christian White Males and the (mostly White) women who support them. Even voter suppression and gerrymandering can only do so much. “Bought and paid for” Federal Judges won’t live forever. Eventually, the screw will turn.

PWS

10-24-18

Tag: Slate

“DUH” OF THE DAY: Barr Is A Trump Flunky — Leah Litman Reports @ Slate

BENEATH THE RADAR SCREEN: Forced Settlement Requires Trump Administration To Back Off From Illegal, Cruel, Racist, and Completely Stupid Attempt To Terminate Humanitarian Program For Central American Minors!

LITHWICK & STERN @ SLATE: Will California’s Appeal To Conservative Jurisprudence Convince Conservative Judges In Litigation Against Trump’s Fake National Emergency?

16 STATES SUE TRUMP ON BOGUS NATIONAL EMERGENCY — Nolan Says Trump Ultimately Likely To Prevail — “Slate 3” Appear To Agree!

Nancy Pelosi Put Her Faith in the Courts to Stop Trump’s Emergency Wall

Big mistake.

Trump Is Trying to Hollow Out the Constitutional System of Checks and Balances

The other two branches might let him.

Trump Isn’t Just Defying the Constitution. He’s Undermining SCOTUS.

The president defended his national emergency by boasting that he’ll win at the Supreme Court because it’s full of his judges.

NOTE: An earlier version of this post contained the wrong article from Dahlia Lithwick. Sorry for any confusion.

“COURTSIDE” POLITICS: A HOLLOW SPEECH FROM AN EMPTY SUIT!

POLITICS: METAMORPHOSIS: 🤥🤥🤥🤥🤥How Ralph Northam Morphed Into A “Trump-Style” Liar Before Our Eyes — Resign Now, Ralph, Before You Inflict Even Further Harm On Our Commonwealth & Our Nation!

MOLLY OLMSTEAD & MARK JOSEPH STERN @ SLATE: Administration Should Heed Judge Sullivan’s and Judge Tigar’s Warnings: “The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.”

TRUMP & HIS TOADIES ARE THE BIGGEST LOSERS: Lower U.S. Courts Forcing Scofflaw, Anti-American Administration To Follow The Law, & There Is Nothing That Trumpsters Hate More Than Being “Outed” & Held Accountable For Their Many Misdeeds!

GONZO’S WORLD: SNL BIDS ADIEU TO “EVIL ELF!” – See It Here!

Jeff Sessions and Robert Mueller Say Their Goodbyes on Saturday Night Live, With a Little Help From Kate McKinnon and Robert De Niro

CONGRATS: Kansas Removes Racist Grifter Kris Kobach From State-Funded Welfare Rolls, Ending Years Of Abuse Of Public Funds!

Notorious Vote Thief and Incompetent Gubernatorial Candidate Kris Kobach Loses in Kansas

By MARK JOSEPH STERN

MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!

JAMELLE BOUIE @ SLATE: GOP Might Find That Their Message Of Bigotry & Racism Eventually Will Have Diminishing Returns!

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Nancy Pelosi Put Her Faith in the Courts to Stop Trump’s Emergency Wall

Big mistake.

NOTE: An earlier version of this post contained the wrong article from Dahlia Lithwick. Sorry for any confusion.

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