Judge’s Order Puts New CFTC Chairman in Unusual Position

Heath Tarbert and two other commissioners must answer questions about a provision in a settlement with Kraft Foods and Mondelez Global, judge says

A federal judge in Chicago has made an unusual demand of the new chairman of the Commodity Futures Trading Commission: Testify in front of—and perhaps be cross-examined by—lawyers for two companies that were recently penalized by the regulator.

U.S. District Judge John Robert Blakey this week ordered Chairman Heath Tarbert to testify about statements he and his agency made following a $16 million agreement with Kraft Foods Group Inc. and Mondelez Global LLC to settle wheat price-rigging allegations.

Heads of regulatory agencies aren’t typically called upon to testify in court. Lawyers who specialize in CFTC cases called the move by Judge Blakey surreal and unprecedented.

The order, which also requires two other CFTC commissioners to testify at the hearing in Chicago, is an early setback for Mr. Tarbert, who took the helm July 15. The hearing could delve into the agency’s sensitive internal deliberations, and Judge Blakey on Monday raised the possibility he could make a referral for criminal contempt of court. Mr. Tarbert didn’t respond to a request for comment.

The hearing, scheduled for Sept. 12, follows a motion by Kraft and Mondelez alleging that the statements by the CFTC, Mr. Tarbert and the two other commissioners violated an unconventional provision of the settlement. The provision prohibited parties to the settlement from making public comments about the deal, beyond referring to information in public records or the terms of a consent order approved by Judge Blakey.

On Aug. 15, a day after the settlement was finalized, the CFTC did just that: It issued a press release announcing the settlement with Kraft and Mondelez, which were one corporate entity when the agency announced its civil charges in 2015.

“America is the breadbasket of the world; wheat markets are its heart,” Mr. Tarbert said in the release. “Market manipulation inflicts real pain on farmers by denying them the fair value of their hard work and crops.”

The commission and its two Democratic commissioners, Rostin Behnam and Dan Berkovitz, also released separate statements touting the settlement and noting the restriction on public statements. The statement from Messrs. Behnam and Berkovitz took particular issue with the provision but said it didn’t restrict them from speaking individually about the settlement.

The press release and statements prompted Kraft and Mondelez to accuse the CFTC of violating the terms of the settlement. The companies have asked Judge Blakey to impose a monetary penalty on the agency.

CFTC lawyers argue that the statements didn’t violate the provision because they largely summarized information already in the public record. And individual commissioners can’t be prohibited from issuing their own opinions as a matter of law, they say. Nonetheless, the CFTC agreed Monday to temporarily remove the three statements from its website.

At a hearing Monday, Judge Blakey ordered Messrs. Tarbert, Behnam and Berkovitz to appear in court to answer questions about the statements. Lawyers for the CFTC, including its enforcement division director, and counsel for Kraft and Mondelez also are expected to testify.

Messrs. Behnam and Berkovitz didn’t respond to requests for comment left with their offices at the CFTC. A lawyer for Kraft and Mondelez also didn’t respond to a request for comment.

The legal protections enjoyed by the CFTC could make it difficult for the judge, or for Kraft and Mondelez lawyers, to question the commissioners closely about internal decision-making at the regulator.

But a decision by the court that the agency had violated the settlement would be a bad outcome for the agency and its chairman, said Matt Kluchenek, a lawyer specializing in CFTC cases at Mayer Brown LLP.

The CFTC is concerned about its reputation and maintaining confidentiality, Mr. Kluchenek said. “If the court disagrees” with the agency’s arguments, he said, “it’s embarrassing, frankly, for all concerned.”

Agreements negotiated by the CFTC also normally include a detailed summary of factual and legal findings explaining how a company violated a particular law. Those findings, which typically appear in a settlement agreement, provide guidance to the public about the agency’s interpretation of its laws.

The CFTC’s settlement with Kraft and Mondelez didn’t include such a summary, which was another anomaly of the agreement, said Elizabeth Davis, a former CFTC lawyer who now works at Murphy & McGonigle PC.

The civil complaint filed against Kraft and Mondelez was based in part on an anti-manipulation statute in the Dodd-Frank Act, a 2010 law designed to boost regulation of the financial sector after the 2008 economic crisis. Other companies had been looking to the case for guidance on the anti-manipulation statute, Ms. Davis said.

”The fact that the settlement happened without legal conclusions means those questions are unanswered,” she said.

This is the greatest blunder of Trump’s presidency

There is no way around it: President Trump lost.

He lost his gamble on shutting down the government. And though he will pretend otherwise, he has also lost his grandiose plan to build a border wall that most of the country does not want.

Trump walked away with nothing more than an assurance from congressional Democrats that they will sit down with Republicans for three weeks and try to come up with a border security plan that both parties can agree upon. There’s a reasonable chance they will come up with a solid proposal. But there’s just as much likelihood that Trump’s dream for a wall will die a quiet death there.

Nonetheless, this is the consequence of Trump’s obsession with satisfying the red-hatted, nativist throngs who chanted “build the wall” at so many of his rallies.

Not only do 6 in 10 Americans now disapprove of the job that the president is doing, but his party has also lost the 10-point edge it once held over the Democrats on the question of which party to trust on border security, according to a fresh Post-ABC News poll.

House Speaker Nancy Pelosi (D-Calif.) has shown that she better than Trump understands the art of the deal in Washington. She is the one who succeeded in building a wall — and Trump ran right into it.

Now, as Trump surveys the shambles that his greatest blunder has made of his presidency, the question is whether he and the Republicans learned anything from the five-week calamity that they caused. Will his party be as willing to follow him the next time he leads them toward the edge of a cliff?

If there is even a thin silver lining to the travesty of the longest-ever government shutdown, it is this: The Republicans’ slander of public servants has been exposed for what it is.

When the shutdown began, conservative pundits assured themselves that few Americans would notice or care, because only a quarter of the government was not being funded. By its final day, there was turmoil at airports, slowdowns at the Internal Revenue Service and countless individual stories of federal workers who were forced to find sustenance at food pantries and face agonizing choices between whether to pay for heat or medicine this month. In the Post-ABC poll, 1 in 5 people said they had personally been affected by the shutdown.

The stereotype of government employees as pampered, overpaid, Washington-bound bureaucrats has been around for many years. Republicans have long portrayed them as the enemies of reform and efficiency.

But Trump targeted them as no one did before. From his earliest months in office, he and his allies have portrayed those who dedicate their lives to serving their country as the corrupt, subversive “deep state” — the bottom-feeders of a swamp in need of draining.

As the shutdown began, Trump first made the absurd suggestion that 800,000 government workers were happy to give up grocery and rent money for a construction project on the U.S.-Mexico border that would stand as a monument to the president’s vanity. Then he contradicted himself in a tweet that declared it was largely his political enemies who were feeling the pain: “Do the Dems realize that most of the people not getting paid are Democrats?”

Where a little empathy might have been in order as the shutdown continued, Trump’s team revealed a callousness that would have made Marie Antoinette blush.

Trump economic adviser

  • Kevin Hassett said furloughed workers should be celebrating the fact they were getting time off without having to use vacation days. “In some sense, they’re better off,” he told PBS NewsHour. Commerce Secretary
  •  Wilbur Ross, a billionaire who pads around in custom-made velvet slippers, expressed bewilderment that federal workers would go to food banks instead of taking out a loan from a bank or credit union. And
  •  Lara Trump, the president’s daughter-in-law, dismissed their ordeal as “a little bit of pain, but it’s going to be for the future of our country.”

So it was noticeable that when Trump made his Rose Garden announcement Friday that the government was opening again, he began it by thanking federal workers who had displayed “extraordinary devotion in the face of this recent hardship. You are fantastic people. You are incredible patriots.”

On that point, Trump was absolutely right. Government employees have shown they are all that and more. Which is why they deserve much better than a chief executive who would wager so recklessly with their lives and their livelihoods.

Impeach Rosenstein? C’mon, Man

In its latest futile gesture, the House Freedom Caucus sets its sights on ousting the man overseeing Robert Mueller’s Russia investigation.

..their public relations assault is not actually about his refusing to turn over this or that document related to the Russia investigation. It’s not really even about the lawmakers’ loathing of the broader investigation, though certainly President Trump’s congressional lackeys — Mr. Meadows and Mr. Jordan most definitely included — are increasingly desperate to derail it.
.. For Freedom Caucus leaders, this impeachment resolution is about something at once much broader and far pettier: the need to make a huge, disruptive, polarizing political stink just as members head home for the long hot August recess. Especially with a critical midterm election coming, it never hurts to have some extra well-marbled meat to throw the voters. And it is unlikely a coincidence that, less than 24 hours after filing, Mr. Jordan — who, lest anyone forget, is multiply accused of overlooking rampant sexual abuse while an assistant wrestling coach at Ohio State University — formally announced his candidacy for House speaker.
Not to make Mr. Rosenstein feel any less special, but this is the fourth year in a row that Freedom Caucusers have pulled a summer-break stunt so nakedly self-serving that it would be comic if it weren’t so odious in its quest to erode public faith in government and in democratic institutions more broadly. Indeed, for all those wondering how the Republican Party reached the point where Donald Trump could swallow it whole with his furious everything-is-awful-and-everyone-is-out-to-get-you brand of demagogy, look no further than the nihilists in the Freedom Caucus.
.. In 2015, Mr. Meadows became an overnight political celebrity when, on the day before break, he filed a motion aimed at overthrowing the House speaker, John Boehner. That effort eventually bore fruit.

.. In 2016, Freedom Caucus members filed a pre-break motion to force a vote on the impeachment of the Internal Revenue Service commissionerJohn Koskinen. (Impeachment is all the rage with these guys.)
And last summer, they filed a discharge petition demanding a vote on a repeal of Obamacare.
.. it has only nine co-sponsors, and Republican leaders, including Trey Gowdy, the chairman of the oversight committee, have expressed a distinct lack of enthusiasm for the effort.
.. Mr. Meadows didn’t even attempt to file a “privileged motion,” as he and his colleagues did against Mr. Koskinen two years ago, which would have forced a vote before members decamped on Thursday... the issue won’t get taken up until lawmakers return from break in September, if then. (That’s the beauty of pre-recess antics: They cannot fail before members get to spend several weeks touting them back home.)

There is vanishingly little chance that House leadership will let this toxic nonsense advance — Speaker Paul Ryan already has publicly smacked down the effort — and

zero chance that the motion could amass anywhere close to the two-thirds support required for the Senate to actually remove Mr. Rosenstein.

.. This stunt is in fact so ridiculous, so unfounded, so poisonous to the Republic that Attorney General Jeff Sessions felt compelled not only to publicly defend his deputy, but also to suggest that the lawmakers involved find a better use of their time.

.. Sally Yates, the former acting attorney general who was fired in January 2017 for refusing to defend President Trump’s travel ban, tweeted a warning about the long-term damage of “using the Department of Justice as a prop for political theater.”

.. It’s not that the Freedom Caucus members don’t recognize the damage they’re doing — or even that they don’t care. It is that delegitimizing government is at the heart of their movement.

.. Conflict and obstructionism have always been their purpose, fueled by their relentless message that

  • government is always the problem, that
  • all experts are idiots, that
  • cultural and coastal elites hate Real Americans and that
  • all of Washington is corrupt and broken beyond repair.

.. As has often been noted, Mr. Trump did not invent the apocalyptic message that he has used to dazzle the Republican base. He merely distilled it to its essence. But the base had been groomed for his arrival for years, in no small part by lawmakers like Mr. Meadows and Mr. Jordan, who have repeatedly proved eager to tear down democratic institutions in the service of their own political aims.

.. So while the Freedom Caucus’s pitiful effort to oust Mr. Rosenstein should not be taken seriously on practical grounds, it is a tragic reminder of the bleak path down which the Republican Party has been slouching in recent years. The rot was there long before Mr. Trump showed up to exploit it, and it is likely to remain long after he is gone.

Boris Johnson, Donald Trump and the Rise of Radical Incompetence

Like America’s president, Brexiteers resent the very idea of governing as complex and based in facts.

A common thread linking “hard” Brexiteers to nationalists across the globe is that they resent the very idea of governing as a complex, modern, fact-based set of activities that requires technical expertise and permanent officials.

Soon after entering the White House as President Trump’s chief strategist, Steve Bannon expressed hope that the newly appointed cabinet would achieve the “deconstruction of the administrative state.” In Europe, the European Commission — which has copious governmental capacity, but scant sovereignty — is an obvious target for nationalists such as Prime Minister Viktor Orbán of Hungary.

The more extreme fringes of British conservatism have now reached the point that American conservatives first arrived at during the Clinton administration: They are seeking to undermine the very possibility of workable government. For hard-liners such as Jacob Rees-Mogg, it is an article of faith that Britain’s Treasury Department, the Bank of England and Downing Street itself are now conspiring to deny Britain its sovereignty.

It is thought that Mr. Davis’s real grudge was with the unelected official, Olly Robbins, who had usurped him in his influence over the Brexit process. The problem was that Mr. Robbins is willing and able to do the laborious and intellectually demanding policy work that Brexit will require, while Mr. Davis is famously not.

.. But another byproduct of the anti-government attitude is a constant wave of exits. Britain leaves the European Union, Mr. Johnson resigns from the cabinet. The Trump White House has been defined by the constant churn of sackings and resignations. With astonishing hypocrisy, wealthy Brexiteers such as Mr. Rees-Mogg, John Redwood, Lord Lawson and Lord Ashcroft have all been discovered either preparing to move their own assets into European Union jurisdictions or advising clients on how to do so. No doubt when Britain does finally leave the European Union in March 2019, they will distance themselves from reality once more, allowing the sense of victimhood and the dream of “sovereignty” to live another day. Meanwhile, someone has to keep governing.