The Arpaio pardon and impeachment 

Here are three good pieces on Trump’s pardon of Arpaio, each reflecting the bottom line that Trump abused the power, and even if the pardon can legally/procedurally go into effect, It should also be grounds for impeachment: Frank Bowman in Slate, Josh Chafetz in the Washington Post, and Noah Feldman in Bloomberg.  I’m adding Krugman’s piece here, too:

“Let’s call things by their proper names here. Arpaio is, of course, a white supremacist. But he’s more than that. There’s a word for political regimes that round up members of minority groups and send them to concentration camps, while rejecting the rule of law: What Arpaio brought to Maricopa, and what the president of the United States has just endorsed, was fascism, American style… There’s also a word for people who, out of cowardice or self-interest, go along with such abuses: collaborators. How many such collaborators will there be? I’m afraid we’ll soon find out.”

[For what it’s worth, I’m not yet persuaded by Martin Redish’s take in the NY Times that the 14th Amendment’s due process clause restricts this particular pardon. I think the obstruction of justice statutes might apply instead, but probably only to a worse set of facts (such as Arpaio or his henchmen returning to commit the same crimes, and receiving a second pardon, or Trump’s pardoning collaborators in order to obstruct the Russia investigation). To the extent that Arpaio’s actions plus the pardon continue to impact civil rights, let me add that there can still be new injunctive relief against Arpaio, there can be federal and state prosecutions of Arpaio and his henchmen for all kinds of crimes. Federal pardons do not impact state prosecutions. Moreover, victims can bring torts suits in state and federal court (civil rights violations based on Section 1983 and constitutional torts violating 4th, 5th, 8th and 14th Amendments).

Kyrie for IT: Ainge Pulls Off Another Amazing Move

Kyrie Irving is a Celtic, and Danny Ainge pulled off yet another great deal without sentimentality. The bottom line is that you win championships in the NBA with two or three max-contract starts. The old adage in the NBA: the team that gets the best players wins the deal, and this is a perfect example. Kyrie is a top-10 obvious max-contract star. Isaiah Thomas is simply not. Don’t get me wrong: Isaiah Thomas is one of my favorite all-time players, for all his offensive magic in just 2 1/2 seasons in Boston. But that’s because he was 5’8″ and overcame his lack of size and his vulnerabilities to physical play and injury. Iverson couldn’t survive that style of play past the age of 30, and IT is 28. Kyrie is 24. Kyrie is not a good defender, but IT was a defensive liability on a totally different scale. The Celtics had to cover for his weakness on defense by pairing him with two of the best defensive guards in the NBA (Bradley and Smart), and even then, it was touch-and-go. And they couldn’t keep Bradley. IT said he expected a long max-contract after this year, and Ainge rightly knew that IT wasn’t worth that money. If you watched the Bulls-Celtics first round series, you saw Rondo expose IT’s offensive weaknesses because of his height. Ainge, the Celtics’ PG of the 1980s, obviously saw the same problems, and the rest of the NBA’s coaches saw it, too. The Celtics were never going to win a title relying on Isaiah to carry the offense.

So we were looking at only one more year with IT, or a max-contract extension for Kyrie for the next decade. I love Jae Crowder, but he was getting squeezed out with the acquisitions of Hayward and Morris (as well as Brown and Tatum). Who knows if Zizic can play in the NBA? In all honesty, the asset that is the most worrisome was the Nets’ No. 1, but it seems that pick is more likely to be the No. 4-6 pick overall. (The Suns, Pacers, Bulls, Kings, and Lakers are worse). Who knows what will be available after the top 3, and when that youngster will be good? The pick they got in June for flipping picks with the Sixers is probably going to be better anyway. Some will say that Kyrie isn’t a good teammate if he couldn’t get along with LeBron, but can understand such conflict with an overbearing star, and Kyrie comes to Boston as the clear offensive Number 1, and the co-stars Horford and Hayward don’t come close to demanding the same attention. My only concern is that the Celtics traded these assets for Kyrie when they could have been used for Anthony Davis, but if Davis is actually available, they can still get him with Tatum and the other high picks they held. And that’s the other great part of the deal: not trading Tatum, Brown, or their other picks. Sure, be sentimental about losing IT and Crowder, but don’t ignore the facts: Ainge made a great deal.

Our Historians’ Amicus Brief in CREW v. Trump

John Mikhail, Jack Rakove, Gautham Rao, Simon Stern and I are proud to have filed our brief in CREW v. Trump on behalf of the plaintiffs on the meaning of the Emoluments clauses.  See here.

We have posted images of archival sources debunking the inaccurate claims made in the amicus brief on behalf of Trump, on the unsupported and idiosyncratic claim that the Foreign Emoluments Clause does not apply to the president. See here. The key documents by Alexander Hamilton, disproving their briefs’ claims, are images 9 and 12 on this part of the site. They show that Alexander Hamilton in fact included the president and vice president in his list of “offices under the United States,” signed and dated by Hamilton twice in the final versions.

The Bigotry of Low Expectations… and John Kelly’s Bigotry

Countless pundits are praising the hiring of John Kelly as the new chief of staff. But one can only praise Kelly’s professionalism relative to the ridiculousness of the Scaramucci/Spicer/Conway circus. It’s the bigotry of low expectations, given such clownish predecessors. But when it comes to bigotry, we have to ask about John Kelly’s bigotry. He is no Mooch clown. He is something far scarier. Kelly helped bring us the ugly, chaotic, and illegal Muslim Ban. You need to have willful amnesia if you want to celebrate John Kelly’s hire as chief of staff.

John Kelly was Secretary of the Department of Homeland Security, and he was one of a very small handful of officials directly responsible for the Muslim Ban. The team started Trump, Steve Bannon, and Stephen Miller, but Kelly was the very next member of the team and the chief of its implementation. He did not know the details or the exact timing of the announcement, but he knew the general outline of the plan. CNN reported, “Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said.” He was not as responsible as Bannon and Miller, but he failed to control the process, and he developed the almost-as-bad Muslim Ban 2.0. Benjamin Wittes (the conservative Trump critic) summed up these events perfectly: “Malevolence tempered by incompetence.” Bannon and Miller were more incompetent, but Kelly shared their malevolence.

Keep in mind how transparently the original “travel ban” was actually a discriminatory Muslim Ban. Here is just a summary of its many legal and administrative problems:

  1. It initially privileged minority religious groups in these seven Muslim countries, an obvious legal loophole designed for Christians rather than Muslims. Trump admitted so explicitly on Christian Broadcast News.
  2. It included Iraq, which created a military and diplomatic crisis.
  3. The announcement and application was one of the most chaotic, confusing, uncoordinated government events in memory, perhaps in history. I challenge anyone to name a more chaotic proactive government event in modern American history (reactions to events like Pearl Harbor, 9/11, or Katrina don’t count).
  4. The State Department had no warning or notice of this order. We’re talking about the STATE Department.
  5. No one had any clue how the ban applied to Green Card holders, student visas, or any number of non-citizens with some kind of documented legal status.  Many family members and refugees were callously left in limbo or had years of plans completely upended. It wasn’t just funny chaos. It was nasty and brutal chaos. The news reports blame others more for this chaos, but Kelly played a big role in it.
  6. The 120-day “temporary pause” period for studying alternatives (“extreme vetting”) was always a pretense, but it has been utterly exposed. The 120-day period from the ban’s announcement passed on May 20th, and there is still no evidence that the administration has made any attempt to develop alternatives. There have been many legal proceedings to demonstrate this necessity and any progress, and the Trump lawyers have not offered even an attempt to explain this process. As the official in charge of the department suppostedly working on “extreme vetting,” this is Kelly’s fault more than anyone else’s. The “temporary” ban was just the start of a permanent ban, either due to Kelly’s incompetence or his malevolence or both.
  7. Considering how disastrous Muslim Ban 1.0 was, I would think a responsible leader would have taken a big step back after the court losses to change message, approach and tone. But Muslim Ban 2.0 was more like Muslim Ban 1.1 (only slightly modified from 1.0). It was basically the same message and the same approach.

There is a lot more I could say here, but I’ll just link to the stories that elaborate on Kelly’s bias and incompetence: Here, here, oy, I could list more and more stories. But this N.Y. Times story, “How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos,” is particularly brutal to review.

Please, pundits, recall these events from just six months ago, and how those events continued to unfold chaotically and unconstitutionally under Kelly up to now. They are a reminder that the move from Priebus to Kelly is nothing to celebrate. It’s potentially a shift from Republican insider incompetence to anti-Muslim militaristic competence (or perhaps, just a bit less incompetence). Have mercy if Kelly is more effective in his policy goals than Priebus ever was.

 

 

 

Sorry, the ObamaCare Repeal battle is not over.

Politico reports that the Senate Republicans are working on a new compromise based on “block grants” giving states much more power to waive the ACA. The most signifiant news is which Senators are putting together this bill: Lindsey Graham (SC), Dean Heller (NV), and Bill Cassidy (LA). [Update: I’m also linking to legislation expert David Super’s post more generally on how this bill is still alive, despite the internet’s fascination with a random anonymous Reddit user, whose argument doesn’t even make sense.] 

First, we need to review the votes last week to see how close the Senate was to passing a real bill. Of course, the Skinny Repeal got all the attention, and it was even more serious than cable news reported. It received 49 votes, even with all of the warnings by Graham and McCain that it was a “fraud” and a “disaster.” If it had passed, Paul Ryan only committed to bringing it to “conference” for the Senate and House to work on a compromise. But Ryan did not promise that the House would never vote on it. When the conference would inevitably stumble or break down, Ryab could always threaten to pass the Skinny Bill into Disaster Law in order to force the Senators back to the table and coerce a bill closer to the House’s AHCA (the thing Trump called “mean.”)

But even more relevant as a policy barometer, the Senate also voted on BCRA, the thing McConnell hammered out in secret. Its effects would be remarkably similar to AHCA (22 million lose insurance by 2026, worse coverage, and higher premiums for many, but hey, lower taxes on the rich!). Here is the most troubling part of the story: on the crucial procecural vote on BCRA, the vote was 43-57, but a closer look shows how close the GOP is to a compromise. Here are the 9 Republican no votes on BCRA:

From the right (Tea Party-types): Rand Paul, Cotton, Lee, Moran, and Corker (more or less).

From the center-right: Graham, Heller, Collins, Murkowski

In the end, when the only option left is a compromise repeal or leaving ObamaCare in place, the right wing will vote “yes” on repeal. Then all the GOP needs is Graham and Heller to vote yes to get to 50 (and then 51 with Pence). And Graham and Heller are writing this new bill.

McCain voted “yes” on BCRA already. And Graham is his BFF in the Senate, so he will support him, especially once Graham makes sure this bill follows the “regular order” that McCain demanded in his big speech last Tuesday (criticizing McConnell’s secret process). Graham is talking directly to the House conservatives, through Freedom Caucus chairman Mark Meadows. If Graham can get the House Freedom Caucus to agree, then it’s all the more certain the Senate’s right wing will compromise, too.

What about the problem that many of BCRA’s provisions required 60 votes to get cloture (and get past a filibuster)?  Do we really want to count on Mitch McConnell playing fair and keeping any old rules that stand in his way?

I hope that all the positive reaction across America to McCain’s dramatic vote (alas, some manufactured drama) will keep him voting “no.” But I fear that he will vote with his BFF Graham, and voe to boost Heller’s reelection by giving him cover. So if we can’t count on McCain, then we desperately need to find one more Senator to stand with Collins and Murkowski. The only other possible hopes are Capito and Portman, but they voted for both BCRA and the Skinny Repeal.

So this fight is far from over. And once you review the actual votes from this last battle, the signs are clear that we could lose the next battle.