Mueller Has a Way Around Trump and His Minions

A road map from the Watergate prosecution shows a potential route for the special counsel to send incriminating evidence directly to Congress.

But a 44-year-old road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon.

The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.

.. In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.

.. Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branchcould not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings.

.. In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee

.. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments.

.. Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibits Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report.

.. What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.

.. If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court.

.. With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.

How the US Supreme Court Lost Its Legitimacy

Though Democratic presidential candidates have won the popular vote in every single election since 1992, except one, Republicans have managed to secure a far-right majority on the US Supreme Court. As a result, the Court’s claim to be a neutral, non-partisan arbiter for pressing constitutional questions is quickly losing credibility.

.. the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their monied backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.

.. since 1988, Republican presidential candidates have won the popular vote in presidential elections – the only consistent measure of national voter intent – just once, when George W. Bush was reelected in 2004 after a period of national unification following the September 11, 2001, terrorist attacks. In every other presidential election (1992, 1996, 2000, 2008, 2012, and 2016), the Democratic candidate won more votes than the Republican candidate.

.. considerable evidence has accumulated that Thomas acceded to that seat by committing perjury during his Senate confirmation hearings.

.. Nine years later, Thomas would go on to join the 5-4 majority in Bush v. Gore, in which the Court ruled that Florida’s 2000 election recount must stop. In doing so, he helped hand the presidency to the son of the man who had appointed him, and denied it to Al Gore, who had won the national popular ballot by more than 500,000 votes.

.. So obtuse was the majority’s written opinion in that case that the ruling actually came with a remarkable disclaimer that it should never be cited as precedent in the future.

.. In 2005, he appointed the current chief justice, John Roberts, to replace William Rehnquist; and in 2006 he appointed Samuel Alito to replace Sandra Day O’Connor.

.. Obama bent over backwards to assuage them, nominating Merrick Garland, the moderate Chief Judge of the US Court of Appeals for the District of Columbia Circuit.

.. Mitch McConnell, succeeded in stymieing the president’s constitutional authority to appoint Supreme Court justices with the “advice and consent” of the Senate.

It bears mentioning that, at this time, the 54 Republicans in the Senate had collectively received 20 million fewer votes than their 46 Democratic colleagues. The Republicans owed their majority strictly to the Senate’s anti-democratic composition, whereby each state is represented by two senators

.. This scheme was one of many concessions made to slave states during the drafting of the Constitution, and with the rise of urbanization, it has come to have an increasingly distortionary effect on American politics. For example, Wyoming’s two senators represent 563,767 people (according to the 2010 census), whereas California’s senators represent 37,254,518.

.. Moreover, Clinton achieved her high popular-vote margin despite widespread voter-disenfranchisement campaigns aimed at Democratic-leaning voters in states controlled by Republicans.

.. In Florida, where elections are regularly notoriously close, more than 1.5 million citizens (over 10% of the state’s total number of adults, and one in five African-Americans) are denied the vote owing to nonviolent criminal convictions, even after they have served their time in prison.

.. Despite having no democratic mandate to speak of, Trump and the Senate Republicans wasted no time in confirming Neil Gorsuch to Garland’s rightful seat on theCourt.

.. Kavanaugh was selected by a president who has been implicated in a felony allegedly committed in pursuit of the office he now holds. That alone calls into question Trump’s legitimacy. But he is also the subject of an unprecedented investigation into his campaign’s possible collusion with a hostile foreign power – an investigation that has already resulted in more than 20 guilty pleas or felony convictions.

.. Kavanaugh, a member of the legal team that persuaded the Supreme Court to hand Bush the presidency in 2000 (thereby hastening the whole grim cavalcade of misbegotten) was most likely selected for his conspicuous support of executive authority in the past. His interpretation of the president’s powers seems to brook no limits, and would likely open the door for Trump to ignore a grand-jury subpoena and even shut down the investigation of his campaign.

.. With his party still enjoying a two-vote (minority-elected) majority in the Senate, McConnell has shown no compunction about ramming Kavanaugh’s dubious nomination through that body. That leaves no alternative but to consider the dire implications of a Supreme Court dominated by the Misbegotten Majority: Thomas, Roberts, Alito, Gorsuch, Kavanaugh. What will this judicial coup mean for reproductive, criminal, labor, and civil rights?

.. More to the point, one of the main threats posed by the new Court is what it will do to voting rights and the laws governing elections – that is, the democratic process itself. Decisions that bear on the outcomes of elections could very well upend the functioning of the other two branches of government, thereby blocking all other possible avenues of redress available within theConstitution’s wider system of checks and balances.

.. Of course, this has been the Republicans’ idea all along. For decades, the Federalist Society, which has overseen all of Trump’s judicial nominations, has understood that cultural and demographic trends are poised to strip the power of its wealthy, predominantly white male sponsors. That cohort is in the process of dying out, and the majority of future voters – and, indeed, current voters, judging by recent popular-vote counts – will be younger, more diverse, more tolerant, and considerably further to the left on economic matters.

To forestall this outcome of democracy, conservatives’ first instinct was to limit the franchise itself. The broad demographic and generational changes underway could be nullified by denying key constituencies the right to vote. And when that wasn’t possible, the next best option was to tamper with electoral outcomes by means of untraceable “dark money” and gerrymandering. The result is that Austin, Texas, one of the most liberal cities in America, is represented in the House of Representatives by four Republicans and just one Democrat; and North Carolina, a state that is evenly divided between Republican and Democratic voters, is represented by ten Republicans and just three Democrats.

.. He was also on board for the decimation of the 1965 Voting Rights Act, which for a half-century had prevented blatant racial discrimination in districts with documented histories of disenfranchising African-Americans and members of other minority groups. And he routinely passed the buck on gerrymandering cases.

.. Citing so-called states’ rights, the Court might start by overturning a recent 3-0 federal circuit court decision ordering North Carolina to redraw its egregiously gerrymandered congressional districts. With that precedent in place, other states will be able to step up their own voter-suppression efforts across the board.

.. For example, some states might decide to deny college students the right to cast absentee ballots, or to vote in jurisdictions where they have not established a permanent residency (or both). Others may think to impose property requirements for voter eligibility, or to “save costs” by shutting down polling stations in, say, Latino neighborhoods.

Still others might require non-drivers to show another form of state-issued identification, which can be acquired only at some remotely located administrative office.

.. retaking the House in 2018 won’t do the Democrats much good as far as the Court is concerned.  All of the constitutional checks on the judiciary rest with the Senate.

..  when it comes to voting rights, gerrymandering, and other election-related cases, he has been one of the justices leading the charge from the right.

.. Whereas Democratic presidents have based their appointments to the Court on merit, Republicans have made a point of selecting younger jurists who will remain on the bench for decades.

.. All of this will be justified on the grounds of “originalism” – the FederalistSociety/Scalia doctrine of sticking to the strict letter of the Constitution as intended (according to them) by its authors at the time of its promulgation. Never mind that in 1787, only propertied men took part in the Constitutional Convention, and that a sizeable plurality were slaveholders zealously guarding their right to treat people like chattel.

..  if individual states try to enact progressive policies on their own, they should be prepared for the Misbegotten Majority suddenly to suspend its much-vaunted devotion to “states’ rights” and strike those down, too. After all, that is the job their sponsors put them there todo. They will not soon forget that they are part of a decades-long project of minority rule.

.. After 2020, more avenues for the proper functioning of checks and balances could open up, especially if the Democrats win the White House and the Senate. Frustrated by their democratically legitimate legislation being scuttled by a misbegotten Court, they could see fit to draft articles of impeachment against Thomas.

.. The journalists Jane Mayer and Jill Abramson have marshaled clear evidence that Thomas lied under oath throughout his confirmation hearing on matters pertaining to his past behavior toward female co-workers and subordinates. And Kavanaugh himself may be facing similar jeopardy with regard to possible perjury in his own confirmation processes.

.. Alternatively, Democrats could pick up where former President Franklin D. Roosevelt left off, by trying to expand the size of the Court, which can be achieved through legislation. But, given the squishiness of swing-state Democrats, a court-packing gambit could fail, as it did with Roosevelt; or, even worse, it could backfire by setting a dangerous precedent for Republicans to follow when they return to power.

..  America would hardly be the first democracy in history to succumb to plutocratic autocracy verging on fascism.

McConnell on ‘resistance’ op-ed, Kavanaugh hearings

Senate Majority Leader Mitch McConnell praises ‘productive’ Congress, says Democratic calls for more Kavanaugh documents is a ‘smokescreen.’

 

If your an American right of center, there hasn’t been a more productive congress.

These opportunities (full republican control of the government) don’t come along very often.

Is the root of this administration amorality?

I want to focus on the results (what we accomplished)

We are transforming the courts.

 

 

The Class Struggle According to Donald Trump

the fact that a worker’s wealth and well-being is much more dependent upon her employer than the employer is on a given worker tilts things in the employer’s favor.

.. Two trends demonstrate the decline of labor and the ascent of business. Since 1979, after-tax corporate profits as a share of gross domestic product have grown by 22.8 percent, while the share of nonfarm business sector income going to labor has dropped by 10.3 percent.

The decline in worker bargaining power in the United States is the cumulative effect of numerous small and large changes over recent decades reaching into almost every area of law and policy. This combines with a decline in the enforcement of existing laws that could protect workers’ bargaining power — laws protecting unions, laws against wage theft, nondiscrimination laws, and more.

.. Among these changes is the requirement that employees sign what are known as “noncompete” and “no-raid” agreements, both of which restrict workers’ ability to extract pay hikes by threatening to take similar jobs at competing companies.

.. “less than half of workers who have non-competes also report possessing trade secrets.”

When entry-level workers at fast food restaurants are asked to sign two-year non-competes, it becomes less plausible that trade secrets are always the primary motivation for such agreements.

.. The treasury report estimated that 30 million American workers have signed noncompete agreements.

.. 94 percent of the net employment growth in the U.S. economy from 2005 to 2015 appears to have occurred in alternative work arrangements.

The growing emphasis on “shareholder value” has provided additional justification for all of these anti-worker developments.

.. “the shareholder value movement starting in the late 1980s and now institutionalized through industry analysts” was crucially important in the devaluation of employees:

.. Accounting in business is mainly about costs. Finance people hate fixed costs because of the challenges they raise to share price valuation when there is uncertainty, and the biggest fixed costs are labor. Simply moving the same labor costs from employees to outside staffing companies moves it from one part of the accounting ledger to another and makes analysts happier.

This mentality, in turn, encourages “the use of temps and contractors” to fill high-wage jobs because “that way the employer doesn’t have to raise wages for all their employees.”

.. Companies could outsource work to areas with cheaper labor and less of a union presence. This both weakened the union and ramped up competitive pressure on the companies that were unionized. The result was fewer unions.

.. In 2017, 6.5 percent of the private sector work force was unionized, down from 35 percent in 1955.

.. The contemporary weakness of organized labor and the threatened status of employees has roots in the breakdown in the 1970s of the postwar capital-labor accord — what A.H. Raskin, the legendary labor reporter for The Times, called a “live-and-let-live relationship” that held sway for 30 years.

.. First, they would alter antitrust enforcement to require consideration of the likely effect of mergers on concentration in the labor market, in order to prevent “too high a risk of wage suppression.”

.. Second, Krueger and Posner would support legislation making noncompete agreements “uniformly unenforceable and banned if they govern a worker who earns less than the median wage in her state.”

.. ban no-poaching arrangements altogether:

We propose a per se rule against no-poaching agreements regardless of whether they are used outside or within franchises. In other words, no-poaching agreements would be considered illegal regardless of the circumstances of their use.

.. In the 2016 election, Trump profited from the conviction of rural and working-class voters that they were on a downward trajectory. If anything, Trump appears to be gambling that letting those voters’ lives continue to languish will work to his advantage in 2020.

.. His administration has turned the executive branch, the federal courts and the regulatory agencies into the sworn enemy of workers, organized and unorganized. Trump is indisputably indifferent to the plight of anyone in the bottom half of the income distribution:

  • look at his appointments,
  • look at his record in office,
  • look back at his business career and
  • look at the man himself.