About That FBI “Raid”

The “usual suspects” are pontificating and Democrats are engaging in what appears to be enjoyable speculation. (Trump has been selling state secrets to the Saudis/Russians/Extra-terrestrials…)

We don’t know.

In fact, we wouldn’t know that the FBI had executed a search warrant at Mar-a-Lago had his Orangeness not begun fundraising off his own announcement of the search. What we do know is that this wouldn’t have occurred absent a really well-documented belief that serious lawbreaking had occurred.

As Josh Marshall recently put it at Talking Points Memo: 

The best assumption is the obvious and initial one: we’re dealing with three key players (Garland, Wray and a federal judge) each of whom would bring a distinct and deep-seated resistance to taking such a step absent evidence of serious criminal conduct and specific circumstances which made the need for a surprise search compelling and necessary. That strongly suggests that there is more afoot here than we yet know.

I will note again what I referenced last night. If you read the reports from the biggest national news organizations what is most striking is how little they seem to know. They believe it’s tied to the 15 box document retention investigation which goes back like a year. But even that seems vague and they don’t seem to know much more. As I said above, this isn’t our first rodeo. Usually after an event like this the most sourced reporters are able to put together a pretty full picture pretty quickly. But that doesn’t seem to be happening. At least not based on the stories I’ve read. That speaks to an extreme secrecy uncommon even in the most delicate and politically-charged investigations.

The Wall Street Journal  notes that authorization for the raid required approval of the “highest echolons” of the Justice Department. 

Before the FBI search, a federal magistrate would have approved a warrant for FBI agents to search the property, indicating investigators may have believed there was additional classified information at the location.

The search also would likely have required signoff from the highest echelons of the Justice Department, including Attorney General Merrick Garland, who was appointed by President Biden, and Christopher Wray, the FBI director appointed by Mr. Trump in 2017, current and former department officials said. A Justice Department spokeswoman declined to comment Tuesday. Mr. Garland has said little publicly about any of the Justice Department’s Trump-related investigations other than noting to reporters that no one is above the law.

One of the most pointed descriptions of the FBI’s execution of its search warrant came from Wired, which reported:

Monday’s search of the former president’s Mar-a-Lago property in Florida was surely one of the most significant, sensitive, and politically explosive actions the US Justice Department and FBI have ever taken. It’s one of a tiny handful of times the DOJ has ever investigated a president. And it’s an action that likely indicates the FBI and prosecutors had specific knowledge of both a definable crime and the evidence to back it up.

 The actual search warrant, which would list specific crimes being investigated, has not been released yet. According to Monday night news reports, however, the search focused on questions about a number of boxes of classified documents that Trump took from the White House to his Florida mansion after leaving the presidency.

While it may take months to learn more about the underlying investigation, the fact that the FBI launched such a high-profile search already tells us a great deal about the state of the Justice Department’s case.

 Federal search warrants aren’t fishing expeditions. The FBI’s warrant had to be approved  at the highest level of both the FBI and the Justice Department, and approval would have required substantial evidence of probable cause. The Journal acknowledged that previous FBI scandals have made the bar for probable cause and sign-off by the department’s upper levels even higher.

The Justice Department’s 2016 decision not to prosecute Hillary Clinton for her sloppy handling of classified materials as secretary of state raises the bar for any prosecution stemming from Trump’s handling of classified documents….which means that in order to pursue this Trump investigation, there would have to be more serious (and criminal) concerns than there were in the investigation of Clinton.

 Thus, we’re left with the big question the FBI is ultimately trying to investigate right now: Who would have benefited from Trump taking home these particular documents—and why?

As the Wired article concludes :

Wray, Garland, and Deputy Attorney General Lisa Monaco have made it clear throughout their careers and public statement that they are institutionalists. Far from being aggressive, partisan investigators, all three have shown themselves over the past 18 months to be reserved, careful, and legally and evidentiarily conservative.

The bottom line of Monday’s search is that the FBI and the Justice Department must have been inordinately clear that they had the goods—and someone’s legal trouble is just beginning.

Stay tuned…

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Justice, Justice..

Like many of you, I get the almost-daily newsletter from Heather Cox Richardson, who reliably reports on current events and provides valuable historical context illuminating them.

Last week, Richardson made a “catch” that I had missed–and it provided further evidence of the corruption that was (along with monumental incompetence) a hallmark of the Trump Administration.

Evidently, during a Senate hearing and in response to a question from Senator Sheldon Whitehouse, FBI director Christopher Wray  shed light on the Administration’s short-circuiting of the background investigation into then–Supreme Court nominee Brett Kavanaugh. (Note: I’m not sure when that hearing occurred–it may have been one held a year or so ago.) According to that testimony, more than 4500 tips about Kavanaugh that were received by an FBI hotline were “separated out” and transmitted to the White House without investigation. The FBI subsequently interviewed only people designated by the White House.

The agency completed the supplemental background check triggered by the accusations of sexual assault in exactly four days–and FBI agents did not interview either Kavanaugh or Christine Blasely Ford, the woman who publicly testified against him, or the other women who came forward to lodge similar accusations–Deborah Ramirez, and Julie Swetnick. 

The lack of clear vetting extended far beyond the allegations of personal sexual misconduct. As the Leadership Conference on Civil and Human Rights pointed out in a letter objecting to his elevation to the Court, Kavanaugh’s judicial conduct was a matter of equal concern.

Judge Kavanaugh’s 12-year record on the U.S. Court of Appeals for the D.C. Circuit, as well as his known writings, speeches, and legal career, demonstrate that if he were confirmed to the Supreme Court, he would be the fifth and decisive vote to undermine many of our core rights and legal protections.  In case after case, he has ruled against individuals and the environment in favor of corporations, the wealthy, and the powerful.  He has advanced extreme legal theories to overturn longstanding precedent to diminish the power of federal agencies to help people.  And he has demonstrated an expansive view of presidential power that includes his belief that presidents should not be subject to civil suits or criminal investigations while in office despite what misconduct may have occurred.  Many of our organizations opposed Judge Kavanaugh’s nomination to the D.C. Circuit,[1] and our fears and concerns have been realized.  Judge Kavanaugh has not served as a neutral and fair-minded jurist.  He has served as a conservative ideologue who lacks the impartiality and independence necessary to sit on the highest court in the land.

The letter went on to document the cases in which Kavanaugh had displayed his lack of “impartiality and independence,” his lack of commitment to racial justice, and his “extreme and disturbing views about presidential power.” The letter was signed by 180 organizations.

Then there was the matter of the 15 ethics complaints filed against Kavanaugh, alleging judicial misconduct during his tenure as a lower-court judge. Once he was elevated to the Supreme Court, proceedings investigating those complaints were dismissed.  Dismisal was because the ethics rule provides that proceedings may be concluded if the judge charged with conducting them finds that “action on the complaint is no longer necessary because of intervening events.” The intervening event in Judge Kavanaugh’s case was his appointment to the Supreme Court. “That is because the Act covers complaints only about circuit judges, district judges, bankruptcy judges, magistrate judges, and judges of some special courts.”

And so here we are… 

That this very flawed, partisan individual is on the Supreme Court is certainly troubling, but there have been other Justices whose flaws have been widely recognized. (Alito was an example well before Boggs.) What is far more troubling was the corrupt process that led to Kavanaugh’s confirmation. It’s one thing to find, after the fact, that a nominee lacks hoped-for judicial temperament or intellect. (The allegations against Clarence Thomas, for example, were fully aired, and most Americans only subsequently realized that the Senate had believed the wrong testimony.) Refusal to conduct a thorough vetting is a far more serious matter, and it’s pretty clear that short-circuiting a full and fair investigation was a deliberate–and successful– act of the Trump Administration.

I tend to harp on the importance of institutions, because the health of the American polity ultimately rests upon the integrity and ongoing utility of those institutions. Separation of Powers is a foundational element of our system of government, and when one branch can effectively control another by ignoring institutional safeguards in order to place favored individuals in positions of power, that foundational element is violated.

Elevating Brett Kavanaugh and denying Merrick Garland a hearing were two steps in the Right’s determined campaign to eliminate individual liberties and move America toward autocracy.

They have to be stopped.

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Dangerous Insanity

Climate change denialism has become much more difficult lately, as evidence in the form of heat waves, increasingly strong hurricanes, wildfires and the like continue to grow. And in most countries, as a recent article from the New York Times notes in its opening paragraphs, political fights over efforts to combat global warming are focused on the “how”–not on the immediacy or existential nature of the threat.

But then there’s the good old USA, and the GOP.

The article’s headline is “Weaponizing Public Office Against Climate Action,” and it documents yet another drawback of American federalism–the ability of Republican officeholders in Red States to actually bolster fossil fuel companies at the expense of the climate. It isn’t just in Texas, where we’ve become used to the deranged antics of Gov. Greg Abbott. (Abbott has actually prohibited state agencies from investing in businesses that have cut ties with fossil fuel companies.)

The Times investigation revealed a “coordinated effort by state treasurers to use government muscle and public funds to punish companies trying to reduce greenhouse gases.

Nearly two dozen Republican state treasurers around the country are working to thwart climate action on state and federal levels, fighting regulations that would make clear the economic risks posed by a warming world, lobbying against climate-minded nominees to key federal posts and using the tax dollars they control to punish companies that want to reduce greenhouse gas emissions.

Over the past year, treasurers in nearly half the United States have been coordinating tactics and talking points, meeting in private and cheering each other in public as part of a well-funded campaign to protect the fossil fuel companies that bolster their local economies.

Last week, Riley Moore, the treasurer of West Virginia, announced that several major banks — including Goldman Sachs, JPMorgan and Wells Fargo — would be barred from government contracts with his state because they are reducing their investments in coal, the dirtiest fossil fuel.

This is–rather obviously– insane. It’s as if an immensely wealthy patient diagnosed with terminal cancer were to decree that none of his monies could ever be used for cancer research or for the production of cancer treatments–and should instead be invested in Roundup and other cancer-producing products.

Mr. Moore and the treasurers of Louisiana and Arkansas have pulled more than $700 million out of Ti, the world’s largest investment manager, over objections that the firm is too focused on environmental issues. At the same time, the treasurers of Utah and Idaho are pressuring the private sector to drop climate action and other causes they label as “woke.”

 And treasurers from Pennsylvania, Arizona and Oklahoma joined a larger campaign to thwart the nominations of federal regulators who wanted to require that banks, funds and companies disclose the financial risks posed by a warming planet.

Reporters traced these efforts to a little-known nonprofit organization based in Shawnee, Kansas, identifying the State Financial Officers Foundation, an organization that once focused on cybersecurity, as the “nexus” of these actions . Following the election of President Biden, who pledged to make addressing climate change a significant element of his agenda, the Foundation began pushing Republican state treasurers–elected officials responsible for managing their state’s finances–“to use their power to promote oil and gas interests and to stymie Mr. Biden’s climate agenda, records show.”

The Heritage Foundation, the Heartland Institute and the American Petroleum Institute are among the conservative groups with ties to the fossil fuel industry that have been working with the State Financial Officers Foundation and the treasurers to shape their national strategy.

The Times notes that Democratic treasurers in Blue states support efforts to combat climate change; they  encourage banks and investment firms to acknowledge the risks that climate change poses to returns for retirees and others. But they haven’t created anything like the national campaign being orchestrated by the State Financial Officers Foundation.

Rational people–a category that rather clearly excludes these Republican treasurers–understand that  global warming is already damaging agriculture and causing extreme weather events that devastate communities and cost taxpayers billions in recovery and rebuilding. Instead, they insist that efforts to reduce emissions threaten employment.

These GOP treasurers have turned climate science into yet another issue in the Republicans’ unrelenting and suicidal culture wars.

But here’s the thing: It’s one thing to recognize that the economic health and quality of life in Blue states is superior to that of Red States. Americans can shrug–or move. However, we can’t create environmental silos–the stupidity and/or cupidity of these GOP officeholders affects the future livability of the entire globe.

The GOP proudly asserts that it isn’t “woke.” (We’ve noticed.)

The opposite of wakefulness, of course, is sleep. In this case, it’s a coma…..

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Negative Partisanship

Us versus Them–tribalism– seems to be a constant in human nature. It’s a primary motivator of war, a significant element of policymaking, a constant of religious strife–and the primary tool of campaigns to get out the vote.

Political polarization and what political scientists call “negative partisanship” get more people to the polls than reasoned appeals based upon policy promises.

I still recall a conversation with another politician back when the GOP was still a political party and not a theocratic cult; I had criticized one of our candidates , and he responded  “He may be a nutcase, but he’s our nutcase.” It was a perfect expression of what has since become the defining trait of the Republican Party. (Democrats—being far less cohesive–are somewhat more forgiving of intra-party criticism.)

A Time Magazine article written after the first public hearing held by the January 6th committee considered that insistence on group solidarity as it is currently being applied to Liz Cheney.

In GOP circles, two things are true at once. First, large majorities of Republican voters disapprove of the January 6 rioters. At the same time, large majorities still approve of Donald Trump, and Liz Cheney—the Republican most prominently intent on investigating and exposing what happened—is less popular with Republicans than renowned conspiracy theorist Marjorie Taylor Greene.

In fact, Cheney might now be the least popular Republican in the entire Republican Party, in spite of her consistently conservative voting record and her support for Donald Trump’s re-election in 2020. The reason is simple. She has violated the prime directive of negative partisanship. Even if she’s right to be upset by the riots, she’s attacking her own team. It’s the responsibility of GOP politicians to always, always train their fire on the left.

And that rule–that your guns must always be trained on the other guy–is why, as my kids might say, we Americans can’t have nice things.

Negative partisanship is a simple concept with profound implications. At its most basic, it means that “the parties hang together mainly out of sheer hatred of the other team, rather than a shared sense of purpose.” When negative partisanship dominates, a political coalition is united far more by animosity than policy. The policy priorities are malleable and flexible, so long as the politician rhetorically punches the right people.

Negative partisanship is why Republicans in the Senate voted against the PACT Act after voting for it–in identical form–just a few weeks earlier. (They did grudgingly reverse that vote in the wake of a huge blowback.) The vote had absolutely nothing to do with the Act itself, and everything to do with a spiteful “We’ll show you!” response to the deal hammered out between Schumer and Manchin.

Negative partisanship helps explain Republican acceptance of conspiracy theorists like Marjorie Taylor Greene. The same polling that shows Cheney underwater with Republican voters shows Green with a slight positive rating, despite her constant stream of utterly bizarre and baseless claims. As the article explains, she fights the left, and the left despises her, and for millions of Republicans that’s all it takes to earn their approval.

Negative partisanship also played a significant role in America’s vaccine hesitancy. Republicans were literally willing to risk death in order to “own the libs.”

Of course, Democrats disapprove of Republicans just as much as Republicans detest Democrats. But people like me, who would love to see the current hostilities replaced by genuine efforts to work across the aisle, are stymied by the reality that today’s parties are not morally equivalent. Germany really was an “evil empire” in the thirties, and the current GOP really has morphed into something other than a traditional, flawed political party.

And that something is malignant.

We Americans who live in what the George W. Bush administration dismissively called “the reality-based community”  find ourselves between the proverbial rock and hard place. We don’t want to paint the entire GOP with a broad and unforgiving brush, but we also don’t want to be so naive that we ignore the very real threat posed by a party now dominated by White Christian Nationalists and wacko conspiracy theorists.

Can that scorned “negative partisanship” come to our rescue?

If Democrats were to turn out in Kansas-like numbers this November–spurred by the GOP’s unremitting attacks on constitutional  liberties and democratic norms–a historically-improbable midterm defeat might begin the process of returning the GOP to its roots as a political party. As the Time article put it, the threats to America’s constitutional order currently come from the Right–and it’s the Right that must put its house in order.

If that happens, Americans of good will can focus their efforts on combatting tribalism and negative partisanship. If it doesn’t, all bets are off….

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Let’s Try This One More Time…

What’s wrong with the argument–made on this site most recently by Paul Ogden–that our differences about abortion should be resolved by democratic debate, and not by Judges issuing edicts?

Certainly, we Americans decide lots of things democratically–legislatures in the various states make policies about taxation, about criminal law, property rights, public transportation and innumerable other issues, and those decisions presumably reflect the majority sentiment in those states. (Okay, maybe not, given the extent of gerrymandering…but theoretically.)

Why do you suppose that those legislators and their constituents don’t get to vote on other matters: the right to free speech, the right to pray to the God of your choice (or not), the right to read books of one’s own choosing, the right to be free of arbitrary searches and seizures, the right of citizens to cast votes in elections…

The reason we don’t subject those and similar rights to majority preferences is because the courts have determined–properly–that under our constitution, they are fundamental rights. And the majority doesn’t get to decide whether person X or person Y is entitled to fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that certain decisions should not be made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

The question, by the way, is who decides–who gets to make a particular decision, not what the decision should be.

The deeply dishonest ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into the private lives of its citizens. Its “reasoning” would allow fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that the right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by majority rule is no different from putting my choice of reading material, or your choice of religion, up to a vote of your neighbors.

The reason so many people are outraged over Dobbs and disgusted by the misogynistic culture warriors in the Indiana legislature is because they recognize that we are arguing about a very basic American principle: the right of each individual to live in accordance with his or her own deeply-held beliefs rather than in servitude to the beliefs of others–even if those others constitute a majority (which in this case, they pretty clearly do not.)

The reason so many women understand  Dobbs to be an assault on women is that its result requires believing that a right to self-determination claimed only by women is not a fundamental right, but a privilege that can be withdrawn by legislative bodies.

By definition, rights don’t depend upon your ability to obtain a favorable decision by a majority of your neighbors. 

Think of it this way: I may strongly disagree with the way in which you are using your freedom of speech. I may think your religion is ridiculous, and your choice of reading material stupid–but I don’t get to vote to shut you up, close your church or censor your books–and you don’t get to vote on my reproductive decisions. 

That’s because fundamental rights are not subject to majority vote.

I’ll end this diatribe with one more repetition of the libertarian principle that undergirds the real “original intent” of America’s particular approach to government–and especially animates the Bill of Rights: Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

Autocrats and theocrats have a whole lot of trouble with “live and let live…”

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