Sunday, October 30, 2016

Comey's Folly

When FBI Director James Comey sent a vaguely worded three-paragraph letter to Congress on Friday advising Congressmen and Senators that new information had been discovered in the FBI’s investigation of Secretary Hillary Clinton’s use of a private email server, the effect was swift and predictable. Within hours, her rival, Donald Trump, was calling this “worse than Watergate” (it’s not) and investigative reporters were getting leaks from “senior officials” that filled in the blanks of Comey’s ambiguous statement. Some reports indicated none of the email in question were written by or to Secretary Clinton. Others advised the FBI had not even looked at the email or secured a warrant to do so. 

This is precisely why investigators do not comment on ongoing investigations. Putting aside the presumption of innocence we all have, the damage to a person’s reputation that attends having their name connected with the words “criminal investigation” is incredibly damaging. Prosecutors open thousands of cases every year that never lead anywhere and are closed without the public ever knowing the names, much less the subject matter, of those probes. Public officials do not deserve special treatment, they deserve the same treatment as any citizen if they are investigated and cleared or are the subject of an ongoing investigation - silence from prosecutors unless and until charges are filed. 

Reporters attempting to excuse Comey as being in a difficult position - either providing notice and taking his lumps (as he is) or withholding notice and being criticized for it - misses the mark by a mile. Comey is not some naive newcomer to the ways of Washington. He was the U.S. Attorney in one of the highest profile offices in the country, served as the second-in-command at the Department of Justice and cut his teeth investigating, yes, you guessed it, the Clintons, in the 1990s. Having held a press conference in July that was, to paraphrase John Podesta, light on substance and heavy on editorial comment, all of which was then used to attack Secretary Clinton, the idea Comey was in a “tough spot” here is laughable. He knew exactly what the impact of his letter would be and the drafting of it was so amorphous that it tarred Clinton as guilty - of something - without any evidence or ability to defend herself, which is now being used to impact the election.  

This is precisely why Department of Justice policy is clear that commenting on investigations close to elections should be avoided barring extraordinary circumstances. Comey flouted this policy and, if reports are true, the recommendations of senior officials, including the Attorney General, who counseled against him doing it. Comey’s actions should not just matter to partisan Democrats, but all Americans who believe in the rule of law and the democratic (“little d”) process - the voters are vested with the responsibility of selecting our elected officials, not an FBI Director who is worried about his reputation on Capitol Hill. Our system of government gives both prosecutors and politicians ample tools to address criminal activity, what it does not countenance is an unelected government official inserting himself into an election so close to it. 

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Sunday, October 23, 2016

Hillary & The Supreme Court

With a possible Clinton landslide in the offing and control of the Senate within reach, Democrats are already speculating about appointments to the U.S. Supreme Court. This chatter grew stronger when Senator John McCain mused that Senate Republicans may try to block any nominee Clinton selects, an unprecedented attempt at obstruction that would effectively neuter one of the three branches of government.

But before people muse on the possibility of a second Warren Court, we need to keep a few things in mind. Even if the Democrats retake control of the Senate and even if they eliminated the filibuster rule for Supreme Court nominees, politics may still come into play.

First, it is possible that the Senate may take up the nomination of Judge Merrick Garland before Clinton is inaugurated. Of course, the chief judge of the D.C. Circuit Court of Appeals is eminently qualified and should have been confirmed months ago, but regardless, if he does get a hearing and vote, that may well be the one and only vacancy filled before the 2018 mid-term election, in which case, all the sturm und drang will be rendered moot.

But let us speculate that one or more justices decide to hang up their robes. Justice Ginsburg is 83, Justice Kennedy is 80, and Justice Breyer is 78. And let us further speculate that Senate Majority Leader Schumer does away with the filibuster rule, so now a nominee need only get 51 votes (or 50 + a putative Vice President Kaine) to be appointed.

While the Senate may go Democratic next month, it is unlikely that the Dems will have more than say, 53 seats (and that would be a huge success). That is a very narrow margin to get a nominee through. Moreover, several Democrats, such as Heidi Heitkamp, Joe Manchin, Joe Donnelly, and Jon Tester are all up for re-election in 2018. If Republicans vote in lockstep against a Clinton nominee, these Democrats will be forced to take a tough vote if the nominee is more “liberal” or “progressive” than the average mid-term voter in a state like North Dakota, West Virginia, Indiana, or Montana.

This will put President Clinton in a tough spot. She may have the chance to change the make-up of the Supreme Court for 15-20 years, but at the expense of asking vulnerable Senate Democrats to vote in a way that could increase the chances the Republicans take over the Senate in 2018 or, run the risk of an embarrassing rejection of a nominee at the hands of her own party. Of course, this would be less of a concern if we did not live in such a partisan time and Supreme Court nominees typically received some (if not a lot of) bi-partisan support. But if President Obama’s experience is a guide, President Clinton will not be able to rely on such courtesy.

This conundrum presents one of the subtler forms of check and balance in our system and may result in more centrist nominees. My hope is that should Secretary Clinton be elected, she will pick well-qualified, but left-leaning judges (as is her right) and Democrats will see the bigger picture while realizing they will have to do all they can to save those endangered Senators the next time around. Of course, one person who would be hard to reject is a certain former constitutional law professor and Harvard Law graduate who will be looking for a new gig come January 20th, 2017.

Monday, October 17, 2016

Hillary's Walk of Shame

As the long slog of election season comes to a close and Hillary Clinton gets ever closer to achieving something never before done in politics, instead of taking a victory lap or even getting a moment to savor her anticipated triumph, she is being dragged through the gutter by Donald Trump and shamed by a mainstream media pre-programmed to dislike her. For reasons unclear to me, Hillary is being subjected to something akin to Cersei’s “walk of shame” at the hands of the High Sparrow. But contra Cersei, whose crime was fornication, Hillary is being humiliated for the temerity of running for President and her punishment is being forced to expose her campaign’s inner workings to the public.

Trump’s shaming has been as bald-faced as it is reprehensible. Tagging Hillary as “crooked” seems quaint now that he brought women who accused her husband of sexual misconduct to a debate, stalked her onstage, and has accused her of everything from being on drugs to lacking the stamina for the job, mocked her physical appearance and threatened to imprison her. And just when you thought he could go no lower, he has now begun ranting about a rigged election that is setting up a situation where millions may simply not accept a Clinton win.

While Trump’s actions are predictable, the media pile on has been equally embarrassing. Has a candidate for high office ever had the inner workings of their office so thoroughly exposed? Reporters practically “Mean Girl”-ed Hillary’s State Department email, culling through thousands of missives to find such plums as what shows the Secretary wanted DVR’d while ignoring an ocean of substantive policy work she engaged in during her time in Foggy Bottom. We are now living through a second round of email shaming with the selective leaking of email from her campaign chairman, John Podesta. Putting aside the fact that we do not even know if these communications have been tampered with, the supposed scandal of these email is really just the 101s of politics – managing the competing interests of groups that support you, cultivating relationships, and assessing the pros and cons of various policy positions.

Hardly the stuff of controversy, but no Presidential candidate has ever had so much information about their internal process so publicly exposed. Indeed, I hazard to guess that the same behind-the-scenes machinations would be found if anyone stole and leaked email from any candidate running for national office, but because it is Hillary, the media narrative gets reinforced that she is somehow duplicitous or scheming, that her actions are in some way nefarious or two-faced. The media can now pick apart the after-action report on an early campaign visit to a Chipotle in Ohio but cannot be bothered to report on a major policy initiative she announced on decreasing poverty in the heat of Trump’s carpet bombing of her.

It is sad, really. What should be a final sprint to the finish line of election day that is filled with equal parts exhilaration and trepidation will instead by a sort of Bataan Death March of gloom and doom, fearing some suspicious email leak even as Trump conditions his most rabid supporters to deny a Clinton victory as some rigged conspiracy between her and the media. Instead of celebrating the accomplishment of electing the first woman President, she is being publicly humiliated and debased, her opponent denying her the fair victory she will win and the media teeing up stories that she will lack a mandate and would have lost but for the uniquely noxious opponent she beat.

Such an outcome is an insult to her millions of supporters, the campaign team that worked tirelessly to elect her, and to Hillary herself. But instead of complaining (and lord knows if she did, she would never hear the end of it from the mainstream media) or shaking her fist at the indignity of her singular accomplishment being minimized and delegitimized, this former First Lady will follow the advice of the current one – when they go low, we go high.

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Monday, October 10, 2016

Donald Trump - Political Suicide Bomber

Last night, Donald Trump strapped on a political suicide vest and pulled the trigger in front of 80 million people on television. There was no glory in Trump’s despicable acts last night. What he did was live out the fantasy of every right-wing conspiracist who has spent the last quarter century with an unremitting hatred for Bill and Hillary Clinton. Trump gave voice to every ugly rumor, innuendo, and debunked theory trafficked in the underbelly of the Internet, on conservative talk radio, and the echo chamber of Fox News. He put the human manifestations of every lurid belief about Bill Clinton in the audience and slashed Hillary Clinton as “the devil,” a woman who had “hatred in her heart” and would be in jail if he were elected (that last one elicited a lusty applause from the audience). 

Trump went after Bill and Hillary Clinton viciously, personally, and often falsely, but that will matter little to people who have been fed a steady diet of Clinton conspiracies for the last 25 years. If you believe that the Clintons ran drugs in Arkansas, faked Vince Foster’s suicide, or sold cattle futures for huge profits there is a direct through line to believing Hillary deleted incriminating emails off her private server, handed out favors to Clinton Foundation donors, and would be in prison but for the good graces of an FBI Director who served as the number two official in the George W. Bush Justice Department.

Trump’s dissection was done with a butcher’s knife not a scalpel, but it mattered little. He stalked the stage ominously and audibly sucked in air as he leveled one false claim after the other, the politics of personal destruction fed to him by his top campaign officials who have made their careers smearing the Clintons and their work. What little he shared in the policy arena was non-sensical. Merely removing barriers to health insurers will magically replace Obamacare, his tax policy won’t blow a massive long-term hole in the deficit (not to mention what it will do to our debt), and beating ISIS will merely require bombing the shit out of them. 

It is tired pablum uttered by someone who knows little about the issues but a lot about how to foment discontent. Trump’s actions will not win him votes but I fear it will harden opposition to Clinton if she becomes President in a way that will make the Tea Party revolt against Obama look mild in comparison. Trump is creating a lynch mob of such radicalism that no Republican will risk running afoul of it for fear of losing their precious seat in Congress. James Carville famously said that “politics ain’t beanbag,” but you would hope it is not whatever we saw on stage in St. Louis either.

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