The Nunes Memo and Trump’s Disloyalty

February 6, 2018

I prepared something else to talk about today but find myself furious about the misuse of the Constitution to prevent getting at the truth. Trump, and his supporters, are attacking the Mueller investigation into ties between the Trump campaign and Russia. The Nunes memo, written by congressional Republicans, is part of that attack. It says that, though well after the investigation began, a former member of British intelligence who had ties to the Clinton campaign, transmitted information which was included in a request for a warrant from the Foreign Intelligence Surveillance Act court, the FISA court. Based on the Nunes memo, Trump and his supporters claim that the investigation is tainted.[i]

Members of the FISA court are all appointed by the Chief Justice of the U.S. Supreme Court. Since 2005, that’s been Chief Justice John Roberts, a Republican, Bush appointee. The Court found the papers sufficient and renewed the warrants.

But the Nunes memo and use of a source sympathetic to Clinton, are being used as part of a campaign to thwart the investigation and dump those who run it. No Democratic hands allowed. Most Republican commentary about the memo claim it proves that the FBI, and the Russia investigations conducted by the special counsel, are tainted by bias against Trump.

First, it is unacceptable for Trump or his supporters to insist that the FBI must decide whether to investigate based on whether the informants are Republicans or Democrats, supporters or critics of Mr. Trump, and forego finding out whether the information is or can be corroborated. Playing politics with policing that way violates the Constitution.

That’s the way police function in dictatorships. Are you for me or against me? If you’re against me, your knowledge and opinions don’t count and can’t be trusted. We alone count and we’re pure. The very idea of a loyal opposition is crucial to the survival of democracy. But it’s anathema to Trump Republicans.

So Trump’s release and use of Nunes’ memo is the best and most important reason to consider impeaching him. He lacks loyalty to democracy; instead, his power trumps all else. This man is the greatest danger to the values on which our country was founded. The fact that he was apparently born in the U.S., as he claims, only makes his disloyalty worse.

Second, a large part of the information gathered by any police organization comes from people who are in some way connected or involved. To exclude information by such informants would cripple policing. To rely only on information from one side of a dispute or the other threatens justice, as does refusing to investigate. Motives deserve consideration and were disclosed to the FISA Court, but the ultimate question is whether the information can be corroborated and is correct. To follow the Nunes approach would undermine the ability of American police to enforce the law, impartially, so that no one is above the law.

The FBI historically was a conservative organization. A succession of presidents insisted that it rise above politics and investigate crimes without regard to politics. Trump is the first president to insist that the FBI should begin with a political test – a political test for employees and a political test for informants. This president has no respect for constitutional norms. These too are grounds which deserve to be considered for impeachment.

— This commentary was broadcast on WAMC Northeast Report, Feb. 6, 2018.

[i] The Democratic response has not been released by the House Intelligence Committee but a Democratic statement of objections can be found here.

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Threats to Democracy – the Dictator’s Financial Game

January 23, 2018

Many of us have written about the threat to American democracy. Actually that list is extensive and goes back a number of years. When I wrote my own book about the Roberts Court, I drew on that literature and applied it to the behavior of the Supreme Court. My hope was that if enough of us wrote about the problem, it would begin to sink in that something has to be done.

Instead we have Trump and the Republican Party trying to shift as much wealth as possible from the majority of Americans to a small fraction of the wealthiest 1 percent – precisely one of the most powerful causes of the breakdown of democracy. And Trump has been attacking the bulwarks of democracy – a free press, independent judges and prosecutors, an independent FBI and Justice Department, nonpartisan election machinery, and protection against domestic and foreign interference in elections. He does all this in the service of the effort to shift more and more money from the masses to the wealthiest, reflected in massive shifts of money to those who already have most of it and talk of attacking entitlements, Social Security, Medicare and other programs which compensate ever so little for the government’s favoritism toward the rich.

Bruce Bueno de Mesquita describes it in The Dictator’s Handbook but so does the story of Robin Hood and the Sheriff of Nottingham. The more the dictator takes from the masses the less power they have and the easiest it is to control them. The more the dictator gives to the wealthiest, the more they depend on and support him. In other words, turning democracy into dictatorship is a process of robbing from the poor to pay the rich, weakening the masses and securing the loyalty of the wealthy.

Many scholars have mapped the process as one in which the wealthiest increasingly circle the wagons against the masses, gain control over the election machinery, and corrupt the entire system that used to be democratic. The more wealth becomes concentrated, the more impossible it is to allow anything approaching free and fair elections. The process builds on itself in a corrupt and corrosive way. The economically ordinary people whom Trump and his wealthy supporters have convinced that they should depend on him are the people who will be used, dumped and double-crossed. And their erstwhile support for the fraudulent leader will suppress the rest of us.

The last time the disparity got this bad it led straight into the Great Depression of the 1930s. They are not independent facts. By stripping wealth from the masses, the elites stripped out the consumer economy on which they depended. The situation was sufficiently drastic that many were urging Franklin Roosevelt to assume dictatorial powers, and indeed dictators like Huey Long in Louisiana were poised to make a run for the presidency, while racists commanded the airwaves. We were lucky. Roosevelt was a wealthy patrician who was committed nevertheless to democracy. He saw the threat and worked hard to avert it. The Supreme Court fought him then as it has been fighting to deepen the crisis now.

We were lucky. Scholars have shown that the behavior of elites in crises like this is crucial. We need people in Washington for whom the survival of democracy in America is more important than partisan politics or dreams of turning America into a wasteland of serfs propping up the great ones. That this country had Washington, Lincoln and Roosevelt at crucial times is amazing. May our luck survive Trump.

— This commentary was broadcast on WAMC Northeast Report, January 23, 2018.

 

 


Threats to Democracy – The Shadow Knows How to Divide and Conquer

January 16, 2018

Right after Trump won, a cousin offered to send me some anti-Hillary literature that she thought I’d find convincing. I responded that if Hillary had won, she and I would be safe. But Trump’s victory emboldened those who would be perfectly happy exercising what Trump euphemistically called their Second Amendment rights, getting rid of people who don’t fit their racial and religious criteria. They were already on the streets. That left neither of us safe.

Nor is the problem just what some of his supporters believe and do. His campaign and rhetoric were about who should not be here. He continually appeals to his most extreme supporters, people who barely conceal their admiration for Hitler.

Many of us have been talking about how polarized our politics have become. Polarized politics is dangerous because it is a predicate for autocracy. If people become convinced that they can’t live with the other side’s victory, that life is too dangerous, democracy becomes unsustainable. When a live and let live attitude is gone, democracy can’t be trusted.

Trump can’t be trusted. Trump stands for exactly the kind of politics that makes democracy feel more dangerous than valuable. During the campaign, he told his supporters to express their “second Amendment rights” at the polls, sending chills down the spines of loyal Americans. When neo-Fascists showed up to demonstrate in Charlottesville fully armed to sow fear and intimidation, and one of their sympathizers murdered a peaceful and unarmed woman in the crowd, Trump blamed their opponents for the carnage. To Trump and his white supremacist supporters, evil is racial – Hispanic, immigrant, Puerto Rican, or Muslim, Blacks, Jews, minorities and women. When he tried to export his racist friends to the Brits, they told him to stay out of Britain. Bless the Brits. They get what this country used to stand for – we are [quote] “one nation … indivisible, with liberty and justice for all.” Liberty and democracy are “indivisible”; they are and must be for ALL.

A descent into racism, Nazi or otherwise, would not make America great again. It would destroy our country. One of the things I found fascinating in the papers of the UN Commission on Human Rights which produced the UN Declaration of Human Rights, was that human rights was not an American idea foisted on the world. Hatred of the Nazis came from across the globe, all continents, all its peoples. What they saw, regardless of economic or political system or religious or ethnic heritage was that the Nazis were a threat to everyone. All countries worked with the single-minded goal that there should be no more Hitlers, no more Nazi control of any country. The world had defeated the Nazis and they weren’t about to have to do it again.

Trump doesn’t get or care that democracy depends on our agreement that all Americans are legitimate Americans, all Americans need to be respected and cared about, and all Americans need to feel safe here, or he is wielding the demonization of some of us precisely to end self-government.

When I was a kid, there was a radio program that some of you will remember. It’s tag line, voiced by actor Frank Readick Jr., was “what evil lurks in the hearts of men, the Shadow knows.” I make no claim to knowing what evil does or doesn’t lurk in the heart of Trump. But threatening America from the inside, he is the biggest threat to the survival of America since our Civil War.

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


Sloppy Thinking About Gun Control

November 14, 2017

After the car ran down people in lower Manhattan, I read an article about making streets safer for pedestrians and bicyclists. I’m not sure if I agree or disagree with the author’s suggestions but I want to make a point about arguments for and against. One could say that people with bad intentions will just find other ways to kill lots of people. True or false? Actually it’s completely misleading. How many people with bad intentions will find other ways and how many won’t? How many people will do as much damage to as many people and how many won’t? The statement that some will doesn’t tell you. And the claim that all will is pure nonsense.

In the early 70s, I was a manager of the New York City legal services program, then known as Community Action for Legal Services or CALS. We had twenty-two offices around the city. All of them were in the poorest and most crime-ridden areas of the city. And in those pre-computer days, many of them had IBM Selectric typewriters which made our staff much more efficient but were expensive. Some thieves craved them. In our East New York office there had been a series of burglaries. After each we hardened the office against further break-ins. But those thieves were determined. Unable to get through the doors, they blew a hole through the wall and took the typewriters.

Obviously some thieves will use explosives. Should we have concluded that we might as well remove the locks on the doors of our twenty-one other offices? Plainly no. Nor would I recommend that you remove the locks from the doors of your homes. Nor would I recommend that you take all the shades and drapes down became peeping toms will find a way around them. Thinking about problems without examining how many, and what proportion of people will do how much damage is just sloppy thinking.

The NRA tells us that bad people will get guns. That statement is neither right nor wrong. If they mean some bad people will get guns no matter what we do, that is clearly true. But if they mean that whatever measures we take will not reduce the number of bad people who can get powerful weapons, that is clearly false. And they can’t tell us anything realistic about the proportions because they convinced Congress to block research into the effect of possible regulation of weapons. So they make sloppy statements hoping you’ll be taken in.

The Founders of our country were not so sloppy and they did lots to regulate guns – the most significant of which was to prohibit people from keeping ammunition in their homes. Ammunition exploded and caused fires so it had to be kept in public armories. Regulation mattered and they knew it.

So when people try to tell you what regulation will or won’t do, don’t let them pull the wool over your eyes with sloppy nonsense. Some regulations work better than others. That’s a valuable subject of research and study, not an occasion for sloppy all-or-nothing claims.

— This commentary was broadcast on WAMC Northeast Report, Nov. 14, 2017.

 

 


Against a New Constitutional Convention for New York State

October 31, 2017

In a week, we will be voting to decide whether to call a constitutional convention for the State of New York. The powers of the Convention would be wide open. Before going further, it is important to look at the provisions for calling the Convention:

in case a majority of the electors voting thereon shall decide in favor of a convention … the electors of every senate district of the state … shall elect three delegates at the next … general election, and the electors of the state voting at the same election shall elect fifteen delegates-at-large.

Let me repeat one crucial phrase, “the electors of every senate district of the state.” The New York Senate as we all know has been gerrymandered for many years to maximize Republican control of the Senate. Although the increasingly blue hue of our state politics has forced them into coalition with the so-called Independent Democrats, the NY Senate remains much more conservative than the Assembly, and not fairly representative of the people of the State. Everyone should be represented. Everyone’s ideas count. But everyone should be represented fairly and their ideas should be considered by a body that represents us fairly. Since the Convention would be shaped only by senatorial districts plus a few delegates chosen at large, I would not be willing to trust our future as a state to such a body.

You may have repeatedly heard me talk about gerrymandering. Many of us who have been fighting gerrymandering for years have continued to fight it regardless of who is the temporary beneficiary. Republicans should not have to accept a convention gerrymandered toward Democrats any more than Democrats should have to accept a convention gerrymandered toward Republicans, as it is now. Frankly, that alone determines my vote. End gerrymandering first and than we can talk about constitutional change.

The current New York State Constitution was adopted in 1938. In other words it was adoped near the end of the Great Depression. As such it had important provisions with the great mass of us in mind, not just the one-tenth of one percent who often think everything should favor them. That too makes it important to protect this Constitution. Of course it is not perfect. And when we get rid of gerrymandering, we may be able to fix it. But now losing this Constitution would be too dangerous.

Moreover, much that is wrong with this Constitution has nothing to do with its language and everything to do with the interpretation of the Courts. Just as I would not jettison the U.S. Constitution because of Scalia’s misreadings, so I would not jettison the 1938 New York Constitution because the courts screwed it up.

To the extent that some people believe some provisions could be improved, it would be sufficient to propose those specific improvements to the people of this state without using them as a Trojan Horse to threaten the entire document.

If any more reasons are needed, there is no reason to believe the delegates will be a step up from the legislature which already has the power to propose amendments. And I would be much more comfortable if the powers of any convention elected to revise the Constitution were limited to matters carefully defined in advance so that we could know how large a threat they pose.

I believe the people of this state would be wiser, safer and better off voting no.

— This commentary was broadcast on WAMC Northeast Report, October 31, 2017.


The Value of Democracy

September 12, 2017

Driven by the Tea Party, Republicans gave us a Congress that hasn’t been able to get much done. Saying less government is better, they take credit for getting nothing done, and leave immigration, tax policy, and health care to fester. It took the Democrats to make a deal with Trump to open the spigot even on hurricane relief.

Republican scorched earth policy is scariest for the lesson we take from it. For some of us the lesson is partisan – the other party must be defeated, fast. But for some Americans the lesson is that democracy doesn’t work, isn’t worth standing up for, honoring and protecting.

Many Americans have seen nothing but gridlock. Unlike the ways the parties worked from the 30s through the 80s, we’ve been dominated by gridlock since the mid-90s, especially when Republicans controlled Congress and Democrats were in the White House. Newt Gingrich and then the Tea Party made gridlock both their goal and tactic – if government can’t get anything done, then there is less government, never mind all the things for which we depend on government.

Republicans literally shut the government down under Clinton, only to discover that the American people didn’t like it because, from fixing potholes to carrying the mail, from sending out Social Security checks to keeping the skies safe to fly, government does lots of things we depend on.

By the mathematical logic of a majority of a majority, a minority in Congress could rule the Republican caucus and that caucus could stop everything so long as they agreed to stick together. So that minority of Congress gives us gridlock. We often talk about minority rights. But we are experiencing something else, not democracy, but it’s opposite, rule by minorities.

Elsewhere, dissatisfaction with democracy paves the way for dictatorship, in places like Syria, Iraq, and much of the Middle East and Eastern Europe. What replaces democracy is not some kinder, gentler, godly leader but kleptocracy, the rule of thieves, taking as much as possible from everyone to fatten their own pockets. Want to start a business, give the tyrant a cut. Want to export or import, the tyrant gets a cut. Courts aren’t in the business of dispensing justice; they’re in the business of looking at who is higher in the hierarchy. That’s why the flow of refugees isn’t from democracy to tyranny, but from dictatorships to freedom and democracy.

Democracy has a key secret. We can argue about who was wrong about Vietnam, Iraq, Obamacare, whatever – the people make painful mistakes – but a democratic people have the ability to vote the bastards out. Generally that gets the people better results than passing the reigns to dictators who can twist everything for their own benefit while sneezing at the people’s misfortune.

Democracy is not to be sneezed at. It is the singular American contribution to this world and we must protect it from foreign powers and political bosses who would control the people by gerrymandering, manipulating the census, keeping people from the polls or not counting their votes, We must protect it from fraud, from lying to the public, and from autocrats who claim they can fix everything if we’d just let them do whatever they want, autocrats who would have us end up like Venezuela under Maduro, Turkey under Erdogan, or like Hungary, Syria or Iraq and from so-called leaders who claim the rules don’t apply to them. We must protect it for ourselves.

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

 


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