The Central Issue of Trump

March 20, 2018

Trump says and does so many things which are parts of much bigger issues, that it’s nearly impossible to keep up.

  • He has us discussing whether he’s going to fire one guy or the other, who does or doesn’t deserve to go;
  • Whether Trump will make war or peace and what country deserves our friendship or enmity;
  • Whether we will honor or dishonor treaties that he claims other countries violate, though no one else shares that view;
  • Whether he has a policy about infrastructure based on his saying things should be built or does not have a policy based on the empty line in his budget;
  • Whether he has conspired with an enemy of the United States, and whether the Special Counsel’s investigation should be shut down because he tells us that he did nothing that should be investigated, and whether it matters that he didn’t give Hillary that privilege.

It makes the head spin.

We’re heading in just a few years to an economy in which most of us won’t have steady jobs, pensions or unions to support us. Instead it’s everyone for himself all the time in the gig economy. Republicans insist that government and regulation are almost always bad. Who’s left to have our interests at heart? Reminds me of pastor Martin Niemöller on being sent to the concentration camps by the Nazis, “Then they came for me—and there was no one left to speak for me.” Is Trump for or against the workers when he says nothing about union rights and supports no change in working conditions other than tariffs for a couple of industries. And is Trump for or against a livable environment when he takes every possible action to degrade the earth, air and water?

We have been at war since 2003 but what do we have to show for it but body bags and amputees. Will Trump send more troops to die in the Middle East, or is he just bluffing to make people back down? But attempted bluffing will be ignored by people across the globe who have all lost confidence in what he tells us because we need only wait a short while for him to say the opposite.

Trump wants the Special Prosecutor, Robert Mueller, to stop investigating whether Trump or his campaign collaborated with the Russians in order to win the White House, or wants to fire Mueller and hire someone else who will close the investigation? Does it matter whether criminal defense lawyers may want their accused clients to have a right to choose their prosecutors and put a time limit on investigations, especially for such difficult prosecutions as those of organized crime, corporate finagling and international financial transactions. Can they cite the president for that right?

It’s enough to make one’s head spin. But there’s a way to simplify it. Forget all the separate issues until we have a president that actually cares about them, and focus on impeachment. Every one of those issues bears on impeachment, either because they relate to obstruction of justice, selling America out, self-dealing in foreign affairs or rewarding his favorite autocrats and wealthy friends at the expense of the people he swore to protect. His high crimes and misdemeanors easily exceed what Clinton was impeached over, threaten more damage to the republic than the misbehavior for which Andrew Johnson was impeached, and for which Richard Nixon resigned before the House could vote on articles of impeachment. Bring all these issues back to the fundamental question of impeachment. Dirty Donald, lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 20, 2018.

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Response to School Shootings

February 21, 2018

After this latest school shooting with 17 dead, I’ve read wonderful pieces by people who lost loved ones to guns, and banal pieces by wonderful writers whose imaginations were fried by the horror. What’s left? Sometimes I try to convince, or fire the choir. Here I’m trying to understand why we can’t put the guns away.

There are many strands in our struggle over guns.

  • Some decided the Civil Rights Movement justified refighting the Civil War. There’s literature at gun shows and conclaves of gun owners that would be out of place anywhere else.
  • Some associations, like the NRA, respond to their most committed, and extreme, members. The NRA’s extremists found a way to hold and even enlarge their membership while pushing it further toward the wrong – the opposite of left is certainly not a synonym for correct.
  • Some politicians have been scaring people for decades. It’s us against them and support your police – hardly an issue until it’s used to justify shooting some people in the back – that’s against the law for everyone else and I can’t support so-called “law enforcement” that shoots people in the back.

Let me suggest another. The Founders’ divisions persist. The Founders talked and wrote about the general welfare, the opposite of selfishness. They did not glorify freedom from regulation. The record shows amazing levels of social regulation – and by the way you couldn’t keep ammunition in your house – it belonged in armories. The Founders believed in social responsibility, though they certainly did not always act the part.

On the other side, their “Don’t Tread on Me,” patriotic slogan is now taken as an emblem for extreme libertarianism. I’ve seen people so sure of their right to do whatever they wanted that they were outraged when cutting their driveway through a neighbor’s property and cutting down her flowering bushes drew a very angry response. And once the Revolution ended British restraints on westward settlements, the former colonists couldn’t wait to snatch Indian land across the Appalachians. Indians didn’t count any more than slaves did; in fact Indians were often enslaved as well as exterminated. If “we” want something, and “we” can get it, then “we” should take it. “Don’t tread on me.”

Many schools reduced violence by banning guns, but many gun enthusiasts think more kids with guns would make schools safer. Many cities reduced violence by keeping guns off the streets. To a carpenter problems can look like nails; to orthopedists problems can look like broken bones; to gun owners ….

The tools we hold invite the responses we make. They dis or disobey us, here’s my tool and it makes these surgical cuts in your internal organs. So as innumerable old western movies celebrated, you had to “hang ‘em up.” (Whoever thought those movies could teach us anything?)

It’s not just macho culture; not just about gender or sex. It’s about getting what we want, controlling the world, not sharing or living in it.

Trayvon Martin never threatened George Zimmerman even if he convinced a bizarre jury that he was in reasonable fear, but Zimmerman had a gun which made it easy to shoot a man in the back. That’s a piece of “American culture” I can do without. I much prefer people with the decency and the wisdom to try to live together in peace, paz, pacem in terris, shalom, salaam – peace in any language and the peace that we claim in all faiths.

— This commentary was broadcast on WAMC Northeast Report, February 20, 2018.


The Innocence Project

December 26, 2017

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

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


From Chaos to Monopoly – the End of Net-Neutrality

December 12, 2017

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.


What Happened at the Supreme Court Gerrymandering Argument

October 13, 2017

Based on the U.S. Supreme Court argument in the Wisconsin Gerrymandering case, I am optimistic that we may get some very much needed reform. To see why, click here for my commentary on TheHill.com.


Taking care of each other

September 5, 2017

Americans have been celebrating the reaction to Hurricane Harvey as an example of Americans taking care of each other. There is much to celebrate. But we have also wrestled for centuries with the problem of taking care of each other – the out of work, the working poor and others struggling to stay afloat.

An economic reversal in the lives of many of us is just temporary. But it does permanent damage when it unravels peoples’ lives, leaves them with debts that spiral out of control so that they cannot hope to pay, or leaves them homeless, in broken families, or housed in barred cells. When people have little, events that would be a minor inconvenience for most of us can drop them over the cliff, unable to climb back. As the Founders recognized, all of us can expect some of our offspring to be poor. So what are the options?

Welfare has been cut back but some pieces of a social safety net remain, mostly funded by the federal government. One reason they are funded nationally is because some local governments don’t want to do anything about the problems of poverty. Another reason is that the problems fall unevenly on local governments. The process of creating suburbs and new communities is a process of seceding from the places where people have problems and therefore avoiding any responsibility under our laws about local government. By shifting the obligations upward to the feds we all share those problems at least to some degree.

We could provide jobs. Instead of just giving things and money out, we could take advantage of the time, labor and skills of people who are otherwise out of work, to get some useful things done. But the city can’t save the money that goes into the social safety net because that money isn’t city money. Albany’s Mayor Sheehan pointed that out at a house party before she was first elected. Fair point. But turning welfare money over to localities would invite them to divert the cash. Some form of cooperative federalism might be better for everyone.

Public services for everyone are also an option. We have created many sorts of services that all of us have rights to. Clean water fit to drink is a lot cheaper for everyone than buying it in bottles – provided that government isn’t asleep at the switch and doesn’t let the water supply fill with lead and other poisons. Sewage systems make everyone better off than a crazy quilt of individual efforts to deal with garbage, their own and their neighbors. And it saves a lot of money both because of economies of scale and because sewage can breed disease for all of us. Roads, bridges, sidewalks, other transportation amenities, libraries, postal services and regulated public utilities like phone and electrical service make life better for everyone. And all of them make life cheaper which is especially important for the impoverished.

In other words, making some things available for all of is good for us all and are also ways of helping the least among us. That used to be true of the health care system until we privatized it, demolished the many county, municipal and not-for-profit hospitals, only to try to restore some of the benefits of a public health system with Obamacare.

Republicans call measures like that socialism. I just call it smart, efficient and decent – Americans taking care of each other.

— This commentary was broadcast on WAMC Northeast Report, September 5, 2017.


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.


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