America Has Gone Off the Rails. Steven Brill Sees Ways to Get It Back on Track.

According to Gallup, in the first week of January 2004 more than half of surveyed Americans were satisfied with the direction of the country. Within a few weeks, however, that number had fallen below 50 percent. It has never recovered. Since the 2008 financial crisis, it has not cracked 40 percent.

.. Brill describes a slow-motion process of perverse meritocracy in which, as one law professor tells him, “the elites have become so skilled and so hardworking that they are able to protect each other better than ever before.” Or, as Brill labels it, “Moat Nation.”

.. Brill focuses on the legal shifts and stalemates that ushered in the country’s current predicament

.. The rise of executive compensation practices linked to stock prices encouraged executives to prioritize short-term profits over long-term investments. A series of Supreme Court cases, ending with Citizens United, enabled corporate speech to play a powerful role in national politics. The growth of super PACs and lobbyists in Washington guarantees that any piece of appropriate regulation will be watered down — first in Congress and then in the implementation stage.

.. The federal government’s approach to fraudulent financial firms has shifted from the criminal prosecution of executives to the levying of fines.

..  the number of times the phrase “unintended consequences” appears in the book. Many of the legal and regulatory changes that Brill excoriates have counterintuitive beginnings. Who helped spearhead the growth of the commercial speech movement? The consumer advocate Ralph Nader, who sued the Commonwealth of Virginia to allow pharmacies to advertise drug prices. “Talk about boomerangs,”

.. the very first political action committee was created in 1943 by a labor union.

.. efforts to bring more minority members to Congress as “another reform effort that boomeranged,” because minority Democrats allied with Republicans to rewrite congressional districts and eviscerate districts held by white Democrats.

.. Brill blames the tortoise-like pace of government rule-writing on due process run amok.

.. Brill argues that interest groups have weaponized due process to guarantee gridlock.

..  In almost all of “Tailspin,” a well-intentioned liberal reform goes badly off the rails.

.. Brill never quite makes the connection between laws and norms.

.. many of the trends that Brill identifies, like political polarization, have their origins in the erosion of norms, not laws, and the real question is whether Americans can trust one another enough not to abuse less legalistic systems.

.. On this point, Steven Levitsky and Daniel Ziblatt’s “How Democracies Die” is probably more instructive.

Trump Reeks of Fear

I can smell Donald Trump’s fear from here. His panic. His anxiety.

.. The only people who know what has been discovered in the Russian election meddling probe are Special Counsel Robert Mueller and his team, and they aren’t talking.

But President Trump no doubt knows far more about it than the rest of us, and what he knows — or what he fears — appears to be a consuming preoccupation. He tweets about the investigation constantly.

.. “They have come to believe that, if the Democrats win control of the House in November, the chamber will vote on whether to begin the impeachment process no matter the outcome of Mr. Mueller’s investigation. So they want to sway Americans — and by extension, lawmakers.”

.. The Times quoted Rudy Giuliani, one of the president’s lawyers, as saying, “Nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation, and that’s why public opinion is so important.”

.. Politico reported on this strategy in May, writing: “President Donald Trump and his lawyers have made a strategic calculation that their fight against Special Counsel Robert Mueller is more political than it is legal. They’re banking that the lead Russia investigator will follow longstanding Justice Department practice that a sitting president can’t be indicted, and that the only real threat to Trump’s survival is impeachment.”

.. “So long as that theory holds, Trump’s plan is to forcefully challenge Mueller in the arena he knows best — not the courtroom but the media, with a public campaign aimed at the special counsel’s credibility, especially among Republican voters and G.O.P. members of Congress.”

.. In May, CNN’s Dana Bash interviewed Giuliani, and she posited that the “Spygate” saga was “an intentional strategy to undermine the investigation, knowing that they, the investigators, the special counsel, it’s their policy not to talk. But you are very free to and are very aggressive about doing so.”

Giuliani responded in part:

Of course, we have to do it in defending the president. We are defending — to a large extent, remember, Dana, we are defending here, it is for public opinion, because eventually the decision here is going to be impeach, not impeach. Members of Congress, Democrat and Republican, are going to be informed a lot by their constituents. So, our jury is the American — as it should be — is the American people.”

.. One has to ask: Why exactly is impeachment front of mind for these people? If they were as innocent as they publicly proclaim, they would know that impeachment would be out of the question as a matter of fact and law. But that is apparently not the case.

.. I believe that Trump is conducting himself as only a guilty man would, one who has a very real and well-founded fear that he is in imminent jeopardy.

.. In May, Trump added Emmet T. Flood, a lawyer who represented Bill Clinton during his impeachment, to his legal team.

.. Impeachment is always on Trump’s mind, and so he relentlessly pursues his strategy of creating a climate of incredulity to ward it off.

.. Republicans, who now give Mueller a 17 percent approval rating, down from 29 percent in March.

.. Trump contends that there’s no there there. If not, why is he acting like there is?

Giuliani’s Bark Won’t Put Off the Mueller Investigation

Although the former mayor says that he is acting as Donald Trump’s outside legal counsel, it’s increasingly clear that his main role is that of attack dog. His principal assignment: to bloody Mueller, and, if possible, disable him.

.. During his sitdown with Ingraham, Giuliani extended this argument, arguing that for “the same reason they can’t indict him, they can’t issue a subpoena to him.”

These statements raise an obvious question: If Mueller really has nothing on Trump, and if, in any case, he is barred from bringing an indictment or issuing a Presidential subpoena, why are the President and his attorneys so concerned about the investigation?

.. As the Republican congressman Trey Gowdy remarked to Trump’s former lead attorney, John Dowd, after he called on Mueller to wrap it up, “If you have an innocent client … act like it.”

the special counsel’s team has proceeded methodically for the past twelve months on at least five distinct but connected fronts:

  1. Russian trolling and voter-targeting on social-media platforms;
  2. the hacking and release of Democratic e-mails;
  3. direct contacts between members of the Trump campaign and individuals connected to the Russian government;
  4. Trump’s business dealings with people and entities connected to Russia; and
  5. possible obstruction of justice.

.. Strictly speaking, that is a separate probe. But nobody on Trump’s team doubts that if and when Cohen decides to coöperate with the prosecutors, Mueller’s investigators will be all ears.

.. as early as last fall, Mueller’s team demanded information from some of the companies that hired the Trump fixer as a consultant after the election. This suggests that the investigation is running many months ahead of the media, and also, perhaps, ahead of the White House’s knowledge of its activities.

.. we know, courtesy of a leak to the Times by Trump’s lawyers, is that Mueller wants to pose at least forty-nine questions to the President himself. Despite Trump’s constant refrain that there was no collusion with Russia, many of these questions also relate directly to what happened before the 2016 election.

.. “During the campaign, what did you know about Russian hacking, use of social media, or other acts aimed at the campaign?” and

“What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”

.. if Mueller found evidence of a serious crime involving the President, and he believed it should be prosecuted in an ordinary court of law, he could go to Rosenstein, who in this case would be the acting Attorney General—and the ultimate decision would fall on Rosenstein’s shoulders.

.. Most people in Washington don’t expect Mueller to bring criminal charges against Trump. If he doesn’t, and Trump doesn’t fire him before he completes his investigation, the key issue—whether or not to impeach Trump—may well be left to Congress. And since Congress operates in the court of public opinion, this would ultimately be a political decision.

That, of course, is another reason that Trump brought in Giuliani—to stick up for him and his family in public, even if that involves defending the indefensible

.. we can rest assured that they won’t be put off by Giuliani’s bluster.