Did Trump Jr. Break the Law?

By his own admission, Donald Trump, Jr. met with some Russian nationals prior to the election. He thought they may have some dirt on Hillary Clinton. Many people are now saying that Trump Jr. committed a crime by allegedly accepting information from he Russian government intended to influence the election.

Eugene Volokh, who is a First Amendment attorney and law professor at UCLA discusses the broad consequences if this assertion is true:

But wait: This doesn’t just risk criminal punishment for the foreign businessman. What if a New York Times reporter is approached by the Turk, who wants to set up a meeting, and the reporter says, “if it’s what you say I love it”? Then, by the same logic being applied to Trump Jr.’s response, that reporter is committing the crime of soliciting the illegal expenditure — he’s encouraging the businessman to illegally give a gift of something of value (information).

The Paris Climate Accord and Impeachment

Marjorie Cohn, writing for the resistance-focused Truthout, claims that Trump’s withdrawal from the Paris Climate Accord is an impeachable offense. A credentialed, but clearly unprincipled hack, Ms.Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She claims that Trump’s withdrawal from the Paris Climate Accord is:

  • a High Crime as defined in the Constitution and therefore an impeachable offense
  • an injury to society
  • a crime against humanity, an “inhumane act”

Let’s go back and remember how we got into the Paris Climate Accord in the first place. The United Nations guided the negotiation of the agreement, which has thus far been signed by 195 countries. President Obama signed for the United States, claiming that the Accord was just an executive agreement, not a treaty, and therefore did not need ratification by the Senate. Departing from his beloved “international norms”, Obama sought no approval from anyone but himself. Most other countries who ratified the agreement did it via legislative processes, including France, Denmark, Germany, United Kingdom, Italy, Japan, South Korea, South Africa, and dozens of others.

The Paris Accord allows for voluntary and nationally determined targets. There are no legal mitigation or finance terms associated with these targets, the only thing legally binding is the reporting requirements. However, Article 7 of the Accord states “adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach”. Obama’s unilateral action hardly seems country-driven or participatory.

In addition Article 9 requires that “Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation”. The Constitution requires that all funds spent be authorized by the Congress. Obama committed $3 billion, and paid $1 billion of that before he left office. Article 28 prevents signatories from withdrawing from the Accord for three years after signature, which also makes it seems less like an executive agreement and more like a treaty.

To understand whether withdrawing from the Paris Accord is an impeachable offense, we must decide the weight of our nation’s commitment to the accord. If President Obama was correct that the accord is merely an executive agreement because the commitments are voluntary and nationally determined, then Trump can easily withdraw by executive agreement. Likewise, changing those commitments are hardly crimes against humanity or an injury to society as Ms. Cohn claims.

If the financial commitments and limitations on withdrawal mean that the United States commitment to the Paris Accords is an act of treaty making and therefore must be ratified by the Senate, then absent legislative ratification, the commitments have not been made. Trump’s act of withdrawal therefore means exactly nothing, and hardly constitutes High Crimes.

Ms. Cohn, you do not deserve the credentials you have.

Presidential Obstruction of Justice

Critics of President Trump are wailing that the president has obstructed justice by firing former Director of the FBI James Comey during the ongoing investigation of Michael Flynn. Supposedly Lieutenant General Flynn had subversive contacts with the Russians, and then lied about it. Flynn was properly fired for the lying. With no solid evidence of collusion with the Russians, the President’s critics in the media have now turned to whether President Trump is guilty of obstructing justice in the various Russian related investigations.

Preet Bharara, a former US Attorney and outspoken critic of the President, says there is absolutely evidence to start an obstruction of justice case.

Constitutionally, investigating the President is a complicated matter. Article II and many years of case law give the President prosecutorial discretion. Every federal prosecutor, the Attorney General, the Director of the FBI, and even recently appointed Special Counsel Robert Mueller, works for, and can be fired by the President. In addition, the President has the authority to pardon anyone for anything they did or didn’t do (unless they have been impeached), which immediately prevents prosecution. It’s pretty tough to prosecute the president for exercising his constitutional authority.

There are few historical examples of presidential obstruction of justice. Not only did Nixon break into the offices of the DNC, but he refused to respond to a congressional subpoena for the unedited tapes and transcripts of Watergate related conversations. Those tapes ended up revealing Nixon’s personal involvement in both the crime and the cover up. The federal prosecutors guiding the grand jury empaneled to investigate the Watergate case told the jury that they did not have the authority to indict a sitting president, impeachment was the only remedy. The grand jury therefore named Nixon as an “unindicted co-conspirator” and turned their findings over to the House Judiciary Committee, who began impeachment proceedings for obstruction of justice, abuse of power, and contempt of Congress. Nixon resigned before the articles of impeachment came to a vote in the House.

Bill Clinton was impeached for both perjury and obstruction of justice. Independent Counsel Kenneth Starr was originally engaged to investigate the Clinton’s business dealings as part of the Whitewater Development Corporation. With the approval of Attorney General Janet Reno, Starr expanded his investigation to include a wide range of alleged abuses, including the firing of the White House travel agents, misuse of FBI files, and Clinton’s conduct during the sexual harassment lawsuit brought by Paula Jones. Linda Tripp provided Starr with a recorded phone conversation in which Monica Lewinsky described her sexual relationship with the President. Under oath in the Paula Jones case, Clinton testified he had not had sexual relations with Lewinsky. Clinton was impeached for perjury and obstruction of justice. However, after the trial in the senate he was acquitted, and remained in office to the end of his term.

During the Iran-Contra affair, Oliver North, a member of Reagan’s National Security Council, was convicted of aiding and abetting in the obstruction of a congressional inquiry, and ordering the destruction of documents. Casper Weinberger, Reagan’s Secretary of Defense was indicted on two counts of perjury and one count of obstruction of justice for his role in the affair. The Tower Commission and Congress both investigated the matter, but concluded that President Reagan did not have knowledge of the diversion of funds to the Contras. North’s conviction was later vacated, and President George H.W. Bush, who had been Reagan’s Vice-President, pardoned Weinberger before his trial began. Regan’s role is not definitively known, and Reagan avoided impeachment, but took a major hit in the polls of approval ratings after he gave a speech taking responsibility for his own actions and of those in his administration.

The Obama administration had it’s own brush with obstruction in the ATF gunwalking scandal often referred to as “Operation Fast and Furious”. The ATF illegally forced licensed gun dealers to break the law by selling weapons to straw buyers, in the hopes that they could track the weapons to drug cartels in Mexico. These illegally sold weapons were found at crime scenes on both sides of the border, and at the scene of the killing of Border Patrol Agent Brian Terry. The House Committee on Oversight and Government Reform subpoened many documents from the Department of Justice, in an attempt to determine who in the administration knew of and sanctioned this illegal activity. Some documents were provided, Attorney General Eric Holder refused to provide some documents, and President Obama claimed executive privilege over others. Holder was held in contempt of Congress, and after 4 more years of legal battles, U.S. District Court Judge Amy Berman Jackson, an Obama appointee, rejected Obama’s claim of executive privilege. At this point, it’s unlikely that either Obama or Holder will be indicted.

Investigations of this nature tend to proceed at a glacial pace. Kenneth Starr worked for 4 years on the Clinton case. Nixon resigned more than 2 years after the break-in at the Watergate office complex. The first arms sales to Iran took place in the summer of 1985, but it wasn’t publically reported until November 1986. Regan’s speech was in Mar 1987, North’s trial wasn’t until 1989, and Wienberger was pardoned in December of 1992, 7 years after the original events. The first gunwalking events of the Obama administration happened in 2006, Congress didn’t start investigating until 2011, and Holder was held in contempt in the summer of 2012.

Trump has been in office for less than 6 months. Despite all the caterwalling in the media, we know very few facts about alleged Russian involvement in either the election, or with the Trump campaign. The President’s duties require him to have some level of engagement with and discussion about the Russians, so any wrong doing must have occured before the inauguration.

The FBI has been investigating the Russian matter for almost a year. Special Counsel Rober Mueller has now taken over the FBI’s investigation. The Senate Select Committee on Intelligence is investigating Russia’s active measures in the spread of disinformation in the US. Perhaps they should expand their investigation to include CNN and the New York Times which have both have published anonymously sourced, incorrect reports on Russian involvement. The House Intelligence Committe and the House Oversight Committe also have open investigations.

If we do know anything factual and compelling about Russian involvement with Trump, his campaign, or his associates, it hasn’t leaked yet. It seems likely that Flynn made some bad decisions, and maybe even broke the law. Unlike Nixon, Reagon, Clinton, or Obama, who all used their power to protect underlings who broke the law, Trump immediately fired the alleged offender. It remains to be seen whether this was an act of enforced personal accountability or self-preservation.

The wild-eyed liberals of the resistance have a stated objective of removing Trump from office. That would require not only impeachment, but a two-thirds majority vote in the senate to convict.

Which has never happened before. The investigations are still in the early months. Let’s wait an see.

One final piece of political irony: Ken Starr was criticized by Democrats for spending $70 million on an investigation of Bill Clinton that substantiated only perjury and obstruction of justice.

The Spine and Sinew of the Nation

John Etchemendy was the Provost of Stanford University for more than 16 years and has a PhD in Philosophy. He stepped down from Provost role in January 2017. He recently gave a speech to the Stanford Board of Trustees:

Over the years, I have watched a growing intolerance at universities in this country – not intolerance along racial or ethnic or gender lines – there, we have made laudable progress. Rather, a kind of intellectual intolerance, a political one-sidedness, that is the antithesis of what universities should stand for. It manifests itself in many ways: in the intellectual monocultures that have taken over certain disciplines; in the demands to disinvite speakers and outlaw groups whose views we find offensive; in constant calls for the university itself to take political stands. We decry certain news outlets as echo chambers, while we fail to notice the echo chamber we’ve built around ourselves.

This results in a kind of intellectual blindness that will, in the long run, be more damaging to universities than cuts in federal funding or ill-conceived constraints on immigration. It will be more damaging because we won’t even see it: We will write off those with opposing views as evil or ignorant or stupid, rather than as interlocutors worthy of consideration. We succumb to the all-purpose ad hominem because it is easier and more comforting than rational argument. But when we do, we abandon what is great about this institution we serve.

Etchemendy was talking about Stanford, but his words ring true in a broader context. In the long term, intellectual monoculture is the single greatest threat to the American way of life. Our nation was forged by hard work and diversity of people and ideas. As we lose tolerance and receptivity to ideas and views different to our own, we lose the spine and sinew that hold us together.

Amazon and Netflix vs Movie Studios

Frederic Filloux writes about the culture shock of Netflix vs the Cannes Film Festival, which has a great story about how the excellent film Okja got booed loudly when the opening credits showed it was produced by Netflix.

But the most interesting part of the piece is the spending estimates.

…the six major Hollywood studios (Disney, Warner Bros., Universal, Paramount, Sony and 20th Century Fox) and the so-called “mini-majors” (DreamWorks, Lionsgate, Weinstein Co., CBS), spent altogether $7B to make movies in 2015.

Amazon and Netflix are estimated to spend $10.5B on original content in 2017.

Game, set, match, McConnell

Let’s start by admitting that this whole business is 100% politics. It’s inside the beltway bullshitters doing what they do best.

The senate has long had rules which allowed a group of senators who wished to avoid a vote on a particular motion to continue debate on that motion. The term for this action, filibuster, comes from a dutch word which means “pillaging and plundering adventurer”. A group of only 40 senators can prevent a vote to close debate on a motion, even though it would take 51 senators to defeat a motion in a vote on the merits. The filibuster allows this relatively small group of senators to steal a motion from having a vote, effectively killing the motion.

In November 2013, Harry Reid, then Senate Majority Leader, changed the long standing rules of the senate so that only a majority of votes were required to bring cloture on debate for federal judiciary nominees and executive-office appointments. Supreme Court nominees were excluded from the rule change. The pressing issue was the confirmation of three Obama nominees to the U.S. Court of Appeals for the District of Columbia Circuit.

Senator Reid declared that the chamber “must evolve” beyond parliamentary roadblocks. “The American people believe the Senate is broken, and I believe the American people are right,” he said, adding: “It’s time to get the Senate working again.”

Then Senate Minority Leader Mitch McConnell whined “It’s a sad day in the history of the Senate,” calling the move a Democratic “power grab.”

In March 2016, with the Senate now under Republican control, President Obama nominated Merrick Garland to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia. Senate Majority Leader Mitch McConnell, who had clearly been itching for revenge, immediately said that the Senate would not act on the nomination until after the presidential election.

When Donald Trump won, Merrick Garland had no chance for confirmation. Sure enough, President Trump nominated Neil Gorsuch to the Supreme Court. Chuck Schumer, who has replaced the retired Harry Reid as Senate Minority Leader, had whipped enough Democratic votes to filibuster a vote on Gorsuch.

Mitch McConnell completed his gambit by changing the Senate rules to eliminate the filibuster for Supreme Court nominees, and Gorsuch was quickly confirmed. Today, Gorsuch was sworn in as an Associate Justice of the Supreme Court.

“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet,” Mr. McConnell said, after describing Democratic opposition in the past to Judge Robert H. Bork and Justice Clarence Thomas. “And it cannot and it will not stand. There cannot be two sets of standards: one for the nominees of the Democratic president and another for the nominees of Republican presidents.”

“When history weighs what happened, the responsibility for changing the rules will fall on the Republicans’ and Leader McConnell’s shoulders,” said Senator Schumer. “They have had other choices,” he added. “They have chosen this one.”

The saddest part of this game is that the quotes from our elected leaders are interchangeable. Their political positions are determined by convenience and circumstance, not principle.

Reid got three liberal justices on the D.C. Circuit court. It’s an influential court because they review decisions and rule making by most federal agencies. McConnell got a 49 year old conservative justice on the Supreme Court. As it stands today, I think McConnell came out ahead.

However, we don’t yet have the final score, and it’s all upside for McConnell. The leader of the court’s liberal wing, the Notorious RBG (a.k.a. Ruth Bader Ginsburg) is now 84 years old, and Stephen Breyer is 78. Justice Kennedy, the current swing vote on the court, is 80. If one or more of these justices retires or dies while Trump is still in office and the Senate is still under Republican control, the Supreme Court will be heavily conservative for an entire generation.

Game, set, match, McConnell.

Who Is A Sportswoman

Silvia Camporesi, an assistant professor in bioethics and society at King’s College London, writing for Aeon: Who Is A Sportswoman?

Why seek out – or at least wilfully [sic] ignore – biological variations that confer advantage across a wide range of skills while penalising women for more testosterone? Why single out hyperandrogenism as the only variation that confers an unfair advantage in sport?

Silvia argues the fundamental unfairness of requiring women with high testosterone levels to have suppression therapy in order for them to compete as a female. She is right. She also acknowledges that while a woman with high testosterone levels is allowed to compete with the men, they are generally not competitive. Her proposed solution:

To move forward, we must err on the side of inclusivity, and consider an athlete a woman when she is legally recognised as such.

In most sports, there is a meaningful gap between the male world records and the women world records. If the International Olympic Committee adopted Sylvia’s proposed approach, China would legally declare their second tier male athletes to be women, and they would win every medal in the women’s events.

Therein lies the problem: everyone agrees the current method is unfair, and nobody can come up with a better method.

Eric Holder won’t change anything at Uber

Last week Susan J. Fowler wrote a scathing blog post about her time working at Uber. She alleges sexual harassment is rampant at Uber, and her story seems quite compelling. Susan is not the first person to make such allegations, but for some reason her story got a lot of play. Slate wonders if Uber can ever reform itself, the firm has a long history of these kinds of allegations and other bad behavior.

Uber has retained former attorney general Eric Holder to work with Arianna Huffington, who sits on Uber’s board, to investigate these allegations.

Eric Holder is the only sitting member of the Cabinet to be held in contempt of Congress for refusing to turn over documents related to the Fast and Furious scandal. In case you forgot, the ATF field offices in Arizona instructed licensed firearms dealers to sell guns to straw purchasers (which is a felony), with the hopes that they could track the guns to Mexican drug cartels. More than 2,000 guns were allowed to be sold during this initiative, only 710 of them have been recovered, and there have been no arrests of high level cartel members as a result of the operation. These tracked weapons were found at many crime scenes on both sides of the US-Mexico border, and several were found at the crime scene where Border Patrol Agent Brian Terry was killed.

Uber wants it to look like they really care about fixing their toxic culture, but the guy they hired has a history of breaking the law to protect his boss. If Uber really wanted things to change, they would have selected someone else to lead this investigation.

The beginning of the end of Obamacare

It doesn’t matter whether Republicans can repeal Obamacare or not. The program as currently architected is going to fail. Humana just announced they are pulling out of all of the exchanges for 2018. Aetna’s CEO, Mark Bertolini says that Obamacare is in a death spiral as healthier consumers are driven out of the exchanges by higher premiums, which in turn makes the premiums go up. For 2017, Aetna already scaled back the number of states where they are participating in the insurance exchanges. I expect that unless Congress implements a new plan, the insurance exchanges as currently architected will be toast by 2019. Seems like a long ways away, but since payers have long lead times to decide whether to participate, I expect we will know for sure sometime in the spring of 2018. That’s little more than a year away.