My Undocumented Friend

September 26, 2017

A friend since my law school days knew he’d been adopted. We saw a lot of each other when we both lived in New York City, where I met his adoptive parents. In a distinguished career, he’s been president of his professional society, recipient of honorary degrees in the US, France, and Greece, an advisor to the Director of the United States Central Intelligence Agency, and he taught at several of this country’s finest universities and war colleges.

A few years ago, when we ran into each other at a professional meeting, he told me that he had discovered that his birth mother had tossed him out the window of a train headed for the concentration camps into the waiting arms of someone she hoped would save her infant son. He was working on trying to learn more about what happened.

My friend has been traveling in Europe but we’ve been in touch and I wrote and asked him what if anything he had found out. He wrote me back:

The short take on my background is that fortuitous circumstances produced reasonable evidence that I was born in France to a foreign family who had fled the Nazis, most likely from Germany. I was hidden in a village, smuggled out of France by the Jewish underground, entered the US as an illegal immigrant, was sent to an orphanage and adopted by an American family.

That of course is the family I knew. He adds that “I’ve managed to track down and interview people involved in these several steps.”

My friend was a “childhood arrival” in the language of Obama’s executive order establishing “Deferred Action for Childhood Arrivals,” or D.A.C.A. It allows people who were brought here as children to stay, study and work here without being deported so long as they behaved themselves properly. That’s the order that President Trump is trying to terminate. My friend was brought here as an undocumented infant. His birth parents likely perished in the concentration camps, without knowing what became of their son.

When I asked him if I could quote him for this commentary, he expanded on the process of his becoming an American:

immigration officials [looked] the other way when the group of 100 children I was with – all older than me – were offloaded at night from our boat and entered the country as illegal immigrants. We were sent to orphanages, from which I was liberated [by] the American family who adopted me. In NYC in the 1940s adoptions took five years to become legal, so I well remember appearing in court and telling the judge, in response to his questions, that my parents loved me and treated me well. He in turn had the court issue me a birth certificate with NYC as my place of birth, thus laundering me.

Half a century later, my friend is widely admired. “Most remarkably,” he added: “my German colleagues – many of whom are former students or post-docs – took it upon themselves to do something,” even though he didn’t have his original surname or birthdate, so that, in addition to his American citizenship, “courtesy of the German parliament – I am [also] a German citizen.”

I can only thank heaven that he and his boat weren’t among those this country turned back during World War II. For me and my friend, the issue of DACA is very personal.

— This commentary was broadcast on WAMC Northeast Report, September 26, 2017.

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Is Trump responsible for violent rallies? Law says probably not.

August 29, 2017

The Hill asked me to analyze the likelihood that the president could be held legally responsible for the violence at demonstrations. For my analysis click here. As the saga of Jones v. Clinton and the subsequent impeachment made clear, high profile cases can have unpredictable results.


Is America For Sale? Is Trump Motivated to Sell Us Out?

June 20, 2017

Two lawsuits have now been filed over Trump’s violation of the emoluments clause.[1]

Emoluments is an eighteenth-century word rarely heard before Trump became president. It’s a rare president who ever came into office with assets that could motivate him to sell us out. And still rarer the president who refused to give up all interests in such investments. But Trump has refused to sell his assets or put them in a blind trust. His assets therefore are at risk here and abroad and their value is closely related to Trump’s dealings with foreign powers and domestic corporations and investors.

Foreign governments understand how to press his buttons. Like any lobbyist who curries favor with those in power, these governments understand that they may get better treatment if they patronize his enterprises. China granted numerous trademarks and other business advantages to Trump enterprises. Officials from China and many other countries use his hotels, lease or buy facilities from him, dine at his restaurants and thereby shift substantial amounts of money to him as well as help him publicize his Mar-a-Lago resort in Florida. All of this has raised the market value of Trump’s properties as all these foreign and domestic supplicants want to show Trump how they can feather his nest.

Now Trump has reversed positions he took during the campaign and his first weeks in office toward his foreign and domestic business partners and authorities. He reaffirmed the one-China policy, and backed off China’s expanding control over the South China sea. Trump abandoned his criticism of Saudi Arabia, and fell solidly behind it in a dispute with Qatar, where the U.S. has its largest regional base. Trump consistently excludes Saudi Arabia from his immigration bans though Saudis have dominated the terrorist events of the past two decades.

Was that because it was good for America or because foreign governments and officials gave him the rights he wanted for his enterprises abroad. With Trump we can never know.

The name for Trump’s behavior is corruption. Corruption includes using public power to gain personal wealth or profit, or accepting benefits that could lead a public official to take action contrary to the public interest. It’s almost impossible to prove a bribe – I’ll do this for you if you give me that. Politicians, lobbyists and other supplicants avoid the language of a deal and let the quid pro quo be inferred and implied. Numerous federal, state and local statutes prohibit public officials from accepting anything of value precisely because the quid pro quo is never stated but  always understood.

Whether Trump’s motives are pure or disgusting, he is in fact showing everyone how private advantage can be extracted from public office and laying America open to corruption. In many countries you get no help from government officials without bringing ever more costly “presents” to them. Trump’s behavior threatens to extract our energy and innovation for the benefit of Trump, his family and friends. That’s the essence of corruption and corrupt governments reduce their peoples to beggars.

This country worked hard to ensure an honest, dedicated, civil service. Despite all the jokes about government employees, our civil service has been the envy of most of the world. All of us will pay for Trump’s private empire.

— This commentary was broadcast on WAMC Northeast Report, June 20 2017.

[1] Citizens for Responsibility and Ethics In Washington v. Donald J. Trump, U.S.D.C., S.D.N.Y., Jan. 23, 2017, https://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2017/01/23140054/CREW-DJT-Final.pdf and District of Columbia v. Trump, US.D.C., D.Md., June 12, 2017, https://www.nytimes.com/interactive/2017/06/12/us/politics/100000005161070.mobile.html. And see Jackson Diehl, China and Saudi Arabia have seduced Trump into being their sweetheart, Washington Post, June 11, 2017, https://www.washingtonpost.com/opinions/global-opinions/china-and-saudi-arabia-have-seduced-trump-into-being-their-sweetheart/2017/06/11/d4001330-4c67-11e7-a186-60c031eab644_story.html?utm_term=.dae3f8d62c7a, Sui-Lee Wee, Trump Adds More Trademarks in China, New York Times, June 14, 2017, B5, available at https://www.nytimes.com/2017/06/13/business/trump-china-trademarks.html, and David Marsh, Trump’s China First Policy, MarketWatch, June 6, 2017, http://www.marketwatch.com/story/trumps-china-first-policy-2017-06-06.

 


Freedom for the Boss; Drudgery for the Rest of Us

May 16, 2017

I keep looking for ways to talk with supporters of the Administration. President Carter started the deregulation frenzy. That has become half of the Republican cut-and-deregulate refrain ever since, consistently repeated by the current White House and the Republicans in Congress. I’d like to focus on the things that will affect those of us who are, financially speaking, ordinary, middle-class Americans.

Here are changes the Administration and congressional Republicans are considering that affect working conditions:

  • The White House Office of Information and Regulatory Affairs has been postponing and considering cutting down a Labor Department rule that limits “workers’ exposure [to] toxic material, which can cause a deadly lung disease.”
  • The same White House Office is also “considering a proposal to roll back protections for workers in construction and shipbuilding.”
    • Those rules allow our employers to save cash by risking our health.
  • The Working Families Flexibility Act … would give employees a choice between taking time off or being paid time-and-a-half when they work more than 40 hours in a week.”
  • Either way, Republicans oppose changing overtime rules to raise eligibility for overtime above the current $23,660 per year.
    • Those rules allow our employers to save cash by shortchanging us.

Here are some that affect the health of financially ordinary Americans:

  • The Administraton has already taken steps to “roll back healthy school lunch standards”
  • The new head of the FDA “has invested in or consulted for dozens of healthcare companies” which suggests that the Food and Drug Administration won’t be much help in preventing unnecessary complications and expenses.
  • The House health care bill would eliminate Obamacare requirements that insurance plans cover prescriptions drugs and mental healthcare. Like all insurance, drug and mental health care coverage are intended to protect people from unplanned changes in the costs of survival.
  • Senate Republicans narrowly lost an effort to roll back a regulation that “limit[s] methane emissions from oil and natural gas drilling.” Methane is even more damaging to the climate than carbon.
    • Those rules risk our health for the sake of other people’s profits.

On savings for retirement:

  • “Trump’s Labor Department delayed the so-called fiduciary rule, ordering financial advisers to act in … [your] best interest[s] … [if you] are saving for retirement.”
  • The CHOICE Act would allow the banks that brought us the crash of 2008 to opt out of regulations adopted after the crash and intended to prevent another. And the bill renames the Consumer Financial Protection Bureau and “reduces its power to enforce pre-existing consumer protection laws.”
    • Those rules risk our financial security for the sake of other people’s profits.

Meanwhile, Republicans on the Supreme Court show little respect for working men and women.

  • With Breyer’s help they have blessed “Professional debt collectors … [who] built a business out of buying stale debt, filing claims in bankruptcy proceedings to collect it, and hoping that no one notices that the debt is too old to be enforced by the courts.”
  • The Court continues to apply a 1925 statute intended for interstate business transactions to consumer contracts and the Court bars state regulation entirely.

What Republicans continue to give us is freedom for the boss and drudgery for the rest of us. As the old folk song has it, “same song, second verse, could get better but it’s gonna get worse.”

— This commentary was broadcast on WAMC Northeast Report, May 16, 2017.


The March in Albany

January 25, 2017

This weekend was busy. The New York Civil Liberties Union, the National Lawyers Guild and others trained people in nonviolence and to serve as observers for the Women’s March on Washington, including a couple of training sessions at Albany Law.

Saturday I joined the Inaugurate Resistance March here in Albany. People joined the crowd from every direction, walking toward the planned start of the march. With so many people it was long before I saw anyone I knew. State Senator Neil Breslin commented to me that a march of this size had never happened in Albany. The only numbers I’ve heard seemed much too conservative – this was really big.

I saw speakers and marchers from women’s groups, Citizen Action, Upper Hudson Planned Parenthood, the Coalition Against Islamophobia, labor unions, religious leaders, community service groups, gay rights groups, and many others.

Eventually I ran into friends who’d served in the Peace Corps, or been mainstays of activism in this area. I got close enough to the rear of the platform to see the back of speakers’ heads.

A common theme was solidarity across all the causes we each primarily work on. United we stand and can protect each other. Divided we fall; we’re all vulnerable separately. All for one and one for all.

When John Dunne wrote the immortal lines, “Ask not for whom the bell tolls, it tolls for thee,” he wasn’t whistling dixie. Our welfare is bound to each others’:

  • Slavery to northern workers was both morally indefensible and a threat to their own livelihoods.
  • Sweatshops bring down everyone’s paychecks and safety.
  • Minimum wages affect everybody’s wages. It’s about whether some people can take advantage of other people, and us.
  • Abuse of women threatens our families and our children – do I have to count the ways?
  • Abuse of any of us – racial minorities, immigrants, gays, lesbians and the trans-gendered, any of us – threatens all of us.

Treating people like trash threatens us all – by example, not to mention their business, their support for us, and the damage to all of us of making some people desperate – desperate for jobs at any price, desperate for food, clothing and shelter for themselves and their families, at any price. Desperation threatens everything and everyone.

The folks at the Inaugurate Resistance March got it. We celebrated our inter-dependence and we cared about each other. I like to quote the ancient Rabbi Hillel who asked the people, “If I am only for myself, who am I?” In that crowd I enjoyed the reaffirmation of our mutual concern. Need I point out for the doubters that a major reason for our country’s success was our ability to work with each other – it matters that we see each others’ humanity, brotherhood and sisterhood.

But that cannot be enough to deal with the blowhard in Chief. The Tea Party’s example was its organizing. Their targets were primaries to take over the Republican party and publicity to take over the public agenda. Obviously it worked. And it will work for liberals too.

It must. Obama’s election was a major step toward a just, decent world. The blowhard-in-Chief is poised to take the brotherhood of mankind apart. It’s our job to make that fail, never to be resurrected, and drive its proponents out of American politics. It’s our job to keep in touch, stay united, publicly push for a decent America until the racist blowhards are sobbing in their caves. We’re the majority and we’ll make OUR muscle felt.

— This commentary was broadcast on WAMC Northeast Report, January 24, 2017.


The Legacy of Barack Obama

January 3, 2017

Barack Obama has been one of our most decent and intelligent presidents. I’ll miss him. Instead of simplification and slogans, Obama explained the complexities of everything from medical treatment to foreign policy. Instead of shooting from the hip, he studied problems carefully and reached mature, intelligent decisions.

But what will stick?

Starting with foreign affairs, Obama got most of the boots off Muslim lands. When Obama took office in 2008 we had close to 200,000 soldiers in Iraq and Afghanistan. Now we have about 15,000 troops, combined, there and in Syria.

ISIS seems to have refocused on Europe but that’s still a problem for us. Europeans’ objectives are compatible with our own, so they are crucial allies, unlike the Russians. But Europe confronts many times more refugees than we do, with backlash and threats to democracy in several countries. American action in Syria added to the refugee flow, but much resulted from revolutions independent of us. More American militarization in the Arab world would inflame the refugee crisis and increase the terrorism directed at us.

Terrorists are fueled by militarization; nations are much more vulnerable to our military – that’s the difference between defeating Saddam Hussein, having him executed and trying to remain there. Trump may talk tough, but will he be fool enough to wade back into those trouble waters?

In Guantanamo, fewer than 60 prisoners remain of the nearly 800 who were imprisoned there.

Republicans dislike the Iran nuclear deal but so far they’ve nothing to show for their fears. Objections from the other signatories may prevent Trump from disavowing it. This may be the first real test of whether Trump has any grip on reality.

At home, Republicans have been yelling for years that they will tear Obamacare down the first chance they get. But their friends in the insurance industry will howl if they do, especially if Republicans leave features Americans like – a guarantee that you can get insurance, coverage for pre-existing conditions, tax credits for small businesses, etc. So it’s not clear what they’ll actually do. Obama took his health care plan from Mitt Romney’s Republican plan. I can think of improvements to the left of Obamacare, but not any that are more consistent with Republican free-market philosophy. Republicans are in a pickle.

Obama got a small stimulus soon after taking office. Terrified it might actually work, Republicans fought to keep it small. Obama’s stimulus worked, slowly, satisfying the cynicism of Congressional Republicans willing to hurt the country in order to make Obama look bad.

Dodd-Frank financial regulation still stands, reigning in a financial system that gambled with everyone else’s money and made a large number of us much worse off.

Obama nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. One has become the conscience of the Court, the other quieter and more conciliatory. Together, they’ve made a the Court much more fair. The future depends on how long Ginsburg lives and how long Trump is in office. The difference Ginsburg, Breyer, Sotomayor and Kagan made could disappear in a heartbeat.

So, there’s a lot to celebrate in what Obama did or tried to accomplish. But I have real fears of what could be done in the effort to discredit him instead of making things better for the people of America.

— This commentary was broadcast on WAMC Northeast Report, January 3, 2017.


Against whom the rebellion?

November 8, 2016

This is my last chance to talk with you before the polls close.

Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.

Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws  that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.

There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.

They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.

The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.

That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.

Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.

Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.

We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.

So do vote if you haven’t already. It matters.

— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.


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