Makes Me Proud To Be A Lawyer!

Okay, a recovering lawyer…but still.

One of the worst aspects of this traitorous and criminal administration has been its willingness to spit in the eye of those who believe in and support the rule of law. After a period of stunned silence, lawyers who have retained their integrity have begun to respond. 

Above the Law has reported on a lawsuit that–as it says–“Drags the Trump Administratiion to Hell.” I am going to quote liberally from the complaint filed by Williams Connolly on behalf of another law firm–Perkins Coie–because I cannot improve on its language. Trump had issued one of his insane “Executive Orders,” purportedly stripping Perkins Coie lawyers of security clearances, and terminating government contracts with the firm.

From the Complaint:

The Order is an affront to the Constitution and our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration, whether those views are presented on behalf of paying or pro bono clients. Perkins Coie brings this case reluctantly. The firm is comprised of lawyers who advocate for clients; its attorneys and employees are not activists or partisans. But Perkins Coie’s ability to represent the interests of its clients—and its ability to operate as a legal-services business at all—are under direct and imminent threat. Perkins Coie cannot allow its clients to be bullied. The firm is committed to a resolute defense of the rule of law, without regard to party or ideology, and therefore brings this lawsuit to declare the Order unlawful and to enjoin its implementation.

The document notes that the Order’s “peculiar title” demonstrates that its purpose isn’t executive. “Rather, the Order reflects a purpose that is judicial—to adjudicate whether a handful of lawyers at Perkins Coie LLP engaged in misconduct in the course of litigation and then to punish them.” The purpose is, rather clearly, to deter law firms from representing clients antagonistic to Trump.

Above the Law judges the following lengthy paragraph to be the hardest-hitting:

Because the Order in effect adjudicates and punishes alleged misconduct by Perkins Coie, it is an unconstitutional violation of the separation of powers. Because it does so without notice and an opportunity to be heard, and because it punishes the entire firm for the purported misconduct of a handful of lawyers who are not employees of the firm, it is an unconstitutional violation of procedural due process and of the substantive due process right to practice one’s professional livelihood. Because the Order singles out Perkins Coie, it denies the firm the equal protection of the laws guaranteed by the due process clause of the Fifth Amendment. Because the Order punishes the firm for the clients with which it has been associated and the legal positions it has taken on matters of election law, the Order constitutes retaliatory viewpoint discrimination and, therefore, violates the First Amendment rights of free expression and association, and the right to petition the government for redress. Because the Order compels disclosure of confidential information revealing the firm’s relationships with its clients, it violates the First Amendment. Because the Order retaliates against Perkins Coie for its diversity-related speech, it violates the First Amendment. Because the Order is vague in proscribing what is prohibited “diversity, equity and inclusion,” it violates the Due Process Clause of the Fifth Amendment. Because the Order works to brand Perkins Coie as persona non grata and bar it from federal buildings, deny it the ability to communicate with federal employees, and terminate the government contracts of its clients, the Order violates the right to counsel afforded by the Fifth and Sixth Amendment.

It isn’t just the lawyers.

While the legal profession takes to the courts, other Americans possessing specialized expertise are using that expertise on behalf of the resistance. Heather Cox Richardson recently reported on three recent outages of X, spanning more than six hours. She cited the former head of the United Kingdom’s National Cyber Security Center, who said that the outages appear to have been an attack called a “distributed denial of service,” attack– “an old technique in which hackers flood a server to prevent authentic users from reaching a website.” He added that he couldn’t “think of a company of the size and standing internationally of X that’s fallen over to a DDoS attack for a very long time,” adding that the outage “doesn’t reflect well on their cyber security.” (Musk, of course, blamed hackers in Ukraine for the outages, an accusation Martin called “pretty much garbage.”)

I think the resistance is just getting started…

Comments

A Functional Media?

Research strongly suggests that Americans are split between an informed electorate and those delicately referred to as “low information voters” (also known as “MAGA”). As I’ve pointed out repeatedly on this blog, our current information environment reinforces misinformation and disinformation, catering to those who simply want their prejudices confirmed. The Internet has proved to be a warm and fuzzy place for those whose “research” is confined to searches for confirmation of their pre-existing biases.

That reality allows Trump to engage in fact-free bloviating–also known as lies–secure in the knowledge that a multitude of propaganda sites will obediently echo them, no matter how ridiculous or easily and repeatedly debunked.

A recent essay from the Bulwark posits that today’s media falls into roughly three categories:

There’s the state media—Fox, Newsmax, the Federalist, HughHewitt.com—which have become pure propaganda outlets.

There’s the “neutral” media—the New York Times, the Washington Post, ABC News, CBS News, CNN—which believe that politics should be covered as a sport with reports about who’s up and who’s down. Extraordinary efforts are made by these institutions to present both sides of every question, even if it means presenting the case for illiberalism or platforming people who the media orgs know are lying to their audience.

Finally, there’s pro-democracy media—outlets which understand that America is experiencing an ongoing authoritarian attempt and that they must stand on the side of small-l liberalism.

The author believes that maintaining these categories is unsustainable-that the three spheres will soon “collapse into just two: Media organizations that oppose authoritarianism and media organizations that accept it.” He quoted an editorial from a technical publication–Techdirt— which recently made a surprising announcement:

Over the last few weeks, I’ve had a few people reach out about our coverage these days . . . [and about] how much we were leaning into covering “politics.”

When the very institutions that made American innovation possible are being systematically dismantled, it’s not a “political” story anymore. It’s a story about whether the environment that enabled all the other stories we cover will continue to exist. . . .

We’re going to keep covering this story because, frankly, it’s the only story that matters right now, and one that not everyone manages to see clearly. The political press may not understand what’s happening (or may be too afraid to say it out loud), but those of us who’ve spent decades studying how technology and power interact? We see it and we can’t look away.

So, here’s the bottom line: when WaPo’s opinion pages are being gutted and tech CEOs are seeking pre-approval from authoritarians, the line between “tech coverage” and “saving democracy” has basically disappeared. It’s all the same thing.

Digital illiterate that I am, I had never heard of Techdirt. But the quoted language confirms something that most political scientists know instinctively: at base, everything is politics. The people who refuse to follow the news of what government is doing, who claim that they “aren’t political,” are kidding themselves.

When the federal government stops funding cancer research, when Social Security checks fail to appear in a timely manner, when government operatives are erasing efforts to counter discrimination (or, as they currently are, reinstating discriminatory messages and behaviors)–when federal officials are telling states to handle their own fires and floods, and threatening your employees with deportation, when insane policies are threatening to tank the economy and erode your retirement–it is no longer possible to tell yourself that “politics” is irrelevant to your life.

The article suggests that tech outlets are among the first to speak out because “they have specialized knowledge—and because they don’t have relationships with people in politics to tend to.”  They are able to see clearly what is happening and willing to speak out against it.

We have seen the exact same thing with some specialized legal publications. Lawfare and JustSecurity.org were once destination sites for law nerds. Today they have become two of the most essential media organizations in America.

Why? Because since these people specialize in the law they know exactly how serious Trump’s attack on the rule of law is—and how dangerous it is.

Like Techdirt and Wired, serious people in the legal space are being radicalized—democracy pilled?—because they understand that this isn’t a game and that the liberal press does not have an obligation to present illiberalism as a point of view worthy of consideration.

The people in pro-democracy media understand that liberalism has a moral obligation to take its own side.

“Fair and Balanced” was never accurate, because “balance” by its very nature/definition cannot be accurate. And stenography–he said/she said–isn’t journalism.

Comments

Straight Talk About Government Efficiency

We can only speculate about the real motives prompting Trump/Musk to take a hatchet to the federal government. That motive is clearly not efficiency–indeed, in any logical world, it would be universally seen as insane, as would the betrayal of Ukraine, which undermines America’s global interests. (That betrayal is more than likely prompted by Trump’s continuing anger over Zelensky’s prior refusal to be blackmailed into accusing Joe Biden of invented crimes. Trump holds grudges.)

As I’ve watched Musk’s illegal DOGE wreak havoc with the federal government and put millions of Americans at risk, I revisited an article from Governing published just before that “department” began it’s slash and burn operations. The author,  who had participated in several state-level efforts to root out “fraud and waste,” noted that there are proper–and improper– ways to go about that task.

Before sharing the persuasive insights of that article, however, I want to point to a truly foundational issue–one that has become far more evident as DOGE continues its destructive path through our federal government. Most Americans reject what we now understand to be Musk’s definition of “fraud and waste.” Anyone who thinks that Social Security is a “Ponzi scheme” is clearly incapable of providing an evidence-based definition of either fraud or waste. (Evidently, to Musk, if a government program benefits millions of Americans–or if an agency’s operations interfere with the ability of Musk’s businesses to rip off taxpayers–that function is wasteful, if not fraudulent…)

The linked article begins by agreeing that efforts to streamline government and root out inefficiencies are always appropriate. It then points to some pesky facts about federal expenditures–facts that should guide any legitimate efforts.

Musk and Ramaswamy have promised a 30 percent cut in the federal government. Roughly 60 percent or so of federal spending, however, consists of interest payments on the national debt, Social Security, Medicare and national defense — largely (though not entirely) untouchable. The projected savings therefore purport to come mostly from wiping out everything else: cutting government regulation, eliminating large numbers of government programs and firing even larger numbers of employees.

Gutting regulation does little to reduce government spending, however, while employee compensation makes up only 4 percent of the federal budget. Firing every single federal employee would barely make a ripple. Whatever the merits of all this as policy, in reality it has little to do with efficiency.

In fact, in many ways, the proposed DOGE approach illustrates how not to pursue actual efficiency in government.

The author then suggests realistic ways to make government more efficient.

Be honest and realistic. Thirty years ago, the massive National Performance Review produced recommendations shaving nearly 7 percent off federal operations… it’s possible to reduce spending by as much as 10 percent annually — although not without severe political repercussions.

The “annually recurring” part is important. It’s easy to fake savings through accounting gimmicks and one-time asset sales. Sure, you can close a budget hole by raiding dedicated funds, postponing needed infrastructure repairs or construction, or even doing a sale-leaseback of the state capitol…  Real, meaningful “efficiency” recurs year after year. In fact, so should the search for efficiency.

It would be easy to cut government spending by 30 percent by eliminating all health and welfare spending. That may be the goal under DOGE. Unfortunately, about six months later, emergency rooms will be crammed, hospital systems will be incurring massive debts through charity care, workforce productivity will plummet, and communicable diseases will proliferate. Cutting just to cut generally costs more in the long term.

 Very little government spending consists of actual fraud and abuse, and less still by beneficiaries filing claims for, say, medical care they never received. It is mostly committed, rather, by providers seeking reimbursements for care they never delivered, or by big-dollar private contractors (particularly in defense: know anyone who fits that description?).

Sometimes, spending saves money. That may sound counterintuitive, but you wouldn’t fire your accounts receivable department, would you? Hiring more revenue collectors is good “business,” even in government.

The author noted that the best way to save money is by improving service delivery, not performative gestures like slashing huge programs. Cutting inefficiency doesn’t require attacking the people who carry out the processes — it requires streamlining the processes themselves.

And rather than firing staff, if we really wanted to find ways to eliminate waste and inefficiency, we would ask the people who work for government–because those are the folks who actually know. “That’s how leaders, public or private, proceed if they’re serious about making their operations work better.”

But of course, making government work better is the farthest thing from Trump/Musk’s mind. They just want it to work better for them.

Comments

When People Have No Idea what They’re Doing

Simon Rosenberg recently explained what even minimally-informed people know: mass deportation–if it occurs– will raise prices for Americans, disrupt businesses and slow growth. (Of course, growth is already tanking as a result of Trump’s on-and-off tariffs. When even the Wall Street Journal calls a GOP economic policy “stupid,” you can pretty much assume widespread agreement among people who can spell “economics.”) Rosenberg noted that even the threat of deportations is having its effect; victims of crime and witnesses aren’t showing up for court dates because they are afraid ICE will seize them. “That means cases can’t be prosecuted and that means criminals stay free to commit more crimes. Party of law and order my sweet Aunt Annie.”

Speaking of “law and order,” there are reports that the administration is considering a pardon for Derek Chauvin, who killed George Floyd on camera. Such a pardon would be further evidence of the GOP effort to return the U.S. to the days of Jim Crow.

Let’s be candid. The daily havoc being applauded by Trump supporters demonstrates the profound ignorance of the MAGA cult–as does their rejection of expertise as “elitist,” and their inability to recognize the all-too-obvious effects of Trump/Musk actions.

Research confirms that the polarization that characterizes our politics is largely between the informed and uninformed. (For confirmation, you can review the occasional comment from trolls on this blog.) 

The monumental ignorance shown by those cheering Trump and Vance’s thuggish behavior toward Ukraine is a perfect example. In a recent post to The Bulwark, Jonathan Last wrote.

Donald Trump and Republicans explain their worldview by calling it “America First.” That’s a lie.

American foreign policy has always put America first. That’s what nations do. It’s axiomatic. Why did the United States do Lend-Lease with Britain before we entered World War II and bankroll the Marshall Plan afterwards? Why did we airlift supplies into West Berlin? Why did we spend trillions of dollars on nuclear weapons that have never been used? Why do we police the global shipping lanes and ensure stability in Europe, Asia, and the Middle East?

It’s not because we’re nice.

It’s because these actions further our interests. They make America safer and wealthier. They check the rise of rival powers. They put America first.

I urge you to read Last’s entire essay–especially his explanation of “Pax America.”  As he writes, for 75 years after the Second World War, the U.S. was the dominant global power. No country, anywhere on earth, could act without considering our interests.

The relationships in NATO, and among the Five Eyes, and with America’s other really close allies—Japan, South Korea—aren’t merely military agreements. They’re kinships. They transcend peace and war; they’re diplomatic, political, cultural, and economic.

Again: This is leverage. It means that when we go to war, we bring a huge crew with us. Other countries are willing to expend resources, and even shed blood, to stay aligned with us. Even for a contentious war like Iraq, we got nearly 40 countries to participate in some way or another.

This makes things cheaper for us. The Soviet Union and China and Iran have to spend money to dominate and subjugate their clients. Our allies spend money on our behalf, pursuing our interests, because we have shaped them in our image.

As Last writes, no country has ever been more globally dominant–and that dominance has largely been a function of our wealth–our ability to spend money.

Here is the thing you must understand: America will win any contest determined by the ability to spend money.

Rightly understood, this is just another example of how America created rules to benefit ourselves: Of course the richest country in history would build a system in which it could exert influence on the global order by spending money: Because the ability to spend money is one of our key advantages.

And yet today’s “America First” class thinks that spending money in order to shape the world is some kind of weakness…

Why do we spend $10 billion a year fighting HIV/AIDS in foreign countries? I have to keep saying this: It’s not because we’re nice.

We spend that money in order to stabilize the global order. If AIDS runs wild in one country, that creates ripple effects. It destabilizes the local economy, risking political instability, which in turn risks regional instability. All of which poses some small danger to the established order which—QED—benefits America.

We spend that $10 billion to preserve the system that benefits us.

That’s what soft power is.

When people in charge are clueless about how the world works, the world no longer works for us. Thanks, MAGA….

Comments

Good-By To The Constitution

As some of you may have noticed, I’ve been providing “Constitutional Minutes” to Women4Change; for the past few weeks, I’ve been sending a brief description of a constitutional provision, and an explanation of how Trump is violating it, to the organization for posting on its webpage. It occurs to me that I should share a couple of those explanations here, in support of my assertion that we are in the midst of a grand-daddy of a Constitutional crisis.

Let’s look, for example, at Trump’s attack on birthright citizenship.

Section One of the 14th Amendment reads as follows: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Trump’s Executive Order, in pertinent part, reads: It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The law is clear. A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Or let’s look at Elon Musk’s rampage through the federal government.

In our constitutional system, power comes from We the People. Only officials selected through constitutional methods may wield power in our name. Past Supreme Court cases have make it clear that individuals who serve in “continuing” positions and who exercise “significant authority” on behalf of the United States must be appointed consistent with Article II’s  Appointments Clause. That clause sets forth two methods to appoint “officers of the United States.” “Principal” officers must be nominated by the president and are subject to the advice and consent of the Senate.

With respect to “inferior officers,” the Constitution allows Congress to give the appointment power to the president, to the head of a department, or to the courts. However, inferior officers must be subject to the supervision of someone other than the president. Those who report directly to the president are by definition principal officers.

The Appointments Clause subjects individuals wielding significant authority — principal officers —   to Senate confirmation. Elon Musk is clearly wielding significant power (as evidenced by growing references to him as a “co-President.”) His activities through DOGE—a “department” that does not exist—are wreaking constant havoc with the operations of critical government agencies, threatening everything from FEMA’s responses to South Carolina’s fires to the timely delivery of Social Security checks.

There are at least two pending lawsuits alleging that Musk’s power cannot be squared with the Appointments Clause—that to exercise the authority he is exercising, he must be appointed as provided by the Constitution. (One such case, in Maryland, was filed by current and former federal employees and contractors; another, in Washington, D.C., was brought by a number of states.) The judge in the Maryland case said that he was “highly suspicious” of the administration’s (phony) explanation for Musk’s role. The judge in the Washington case has found that  Musk has “rapidly taken steps to fundamentally reshape the executive branch,” with no apparent “source of legal authority” and that his actions appear to describe “precisely the ‘executive abuses’ that the Appointments Clause seeks to prevent.”

Over the past few weeks, I’ve identified several other obvious and egregious violations of America’s founding charter. There are numerous lawsuits pending, and growing public anger, but there is no guarantee that Trump will obey the courts, and thus far, no indications that Congressional Republicans will locate their spines.

Meanwhile, Trump and Musk are busy destroying the federal government’s ability to operate domestically, and betraying our allies abroad.

As the saying goes, we aren’t in Kansas anymore….

Comments