Podcast: Stay Tuned with Preet Bharara

There’s a new podcast from Atty. Preet Bharara, former United States Attorney for the Southern District of New York.

I’ve embedded the first episode, below, and readers can subscribe to this and future episodes via iTunes or Stitcher.

On March 11, 2017 President Donald Trump fired US Attorney Preet Bharara. Preet tells the story in detail for the first time. Then, a conversation with former Secretary of Defense and former CIA Director Leon Panetta about how to clean up a chaotic White House, trade Russian spies, and stand up for what’s right, even if it means defying a president.

On Transgender Americans

One could write about the recent Twitter statement from Trump that “[a]fter consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military,” but there’s a broader question than military service. To be sure, I believe that transgendered soldiers should be permitted to serve, that their service would have no meaningful costs (it’s false to say as Trump has said that their service would be burdensome or disruptive), and that there are meritorious legal arguments in favor of transgendered soldiers’ continued service & against Trump’s rash declaration.

(It’s also worth noting that the president cannot unilaterally change military policy via a tweet, no matter how much he might like to do so.)

But it would be evasive, I think, to couch one’s position so narrowly (on matters of military service alone, however important that service is).

I’ve no claim to understanding the particular experiences of the LGBT community, but then one needn’t have such familiarity to see that there are political, ethical, and (indeed) religious arguments firmly supporting equal treatment for LGBT Americans. (On this latter point, there are those, for example, like Fr. James Martin, S.J., who are working to advance a more inclusive view.)

A well-ordered society is one in which all people have equal, fundamental rights at law, and where those fundamental rights are respected and protected.

These are not merely national matters.

It was only four years ago that a politician in this city, when writing about a Wisconsin supreme court race, highlighted (unfavorably, to be sure) the support one candidate had among two small LGBT groups. Nearby, more recently, one can find a trolling reactionary sure to complain about the LGBT community one way or another, all the better to endear himself to those whose only problems are fabricated cultural ones.

One would have hoped that Trump would not have opened yet another battle against another minority group, but then the more one sees of Trump, the worse one expects from him. There’s so very much to despise about Trump — after today, there’s even more.

More important, however, is a firm acknowledgment that many of us in this small community welcome all people, of any race, ethnicity, religion, gender, or orientation, as our friends and neighbors.

He Knew

Raquel Rutledge reports that Eric Haertle knew the medical products he sold were infected:

The former co-owner and chief operating officer of a Hartland pharmaceutical company — once among the nation’s largest manufacturers of alcohol wipes — has pleaded guilty to shipping a product he knew was contaminated with dangerous bacterium.

Eric Haertle, who owned Triad Pharmaceuticals and its sister company, H & P Industries, along with his two siblings, made “false representations to FDA,” allowing hundreds of cases of alcohol pads labeled as “sterile” to be sent out when he knew samples from the lot had tested positive for bacillus cereus, a potentially deadly bacterium, according to the plea agreement filed in federal court….

Triad and H & P were named in at least 10 federal and state lawsuits claiming their products sickened and in some cases killed someone, including a case involving a 2-year-old Houston boy.

Milwaukee Journal Sentinel investigation in 2011 found the U.S. Food and Drug Administration had been in the company’s manufacturing plants repeatedly during the previous decade, citing the company for numerous health and safety violations.

At one visit, months before the Houston boy, Harry Kothari, died, FDA inspectors warned the company its product sterilization process was insufficient. But the agency took no formal enforcement action. It wasn’t until April of 2011, several months after Kothari’s death from a bacillus cereus infection, that U.S. Marshals raided the company and seized $6 million worth of product, essentially shutting down its operations.

Via Former owner of Triad, company whose contaminated wipes were tied to deaths, convicted of felony @ JSOnline.

See, also, full coverage of this matter in the Journal Sentinel‘s Shattered Trust series.

There’s an oft-repeated quotation that one should ‘never ascribe to malice that which is adequately explained by incompetence.’ (The remark is commonly misattributed to Napoleon; its provenance lies elsewhere, and is more recent.)

In any event, self-professed incompetence is an all-too-easy (and often false) defense among sophisticated wrongdoers.

Eric Haertle wasn’t merely negligent.

He knew.

Under the Gazette‘s Reasoning, Rosa Parks Should Have Stayed at the Back of the Bus

Over at the Gazette, there’s an editorial about whether a local school superintendent should have sent a message about immigration to residents without consulting his school board. See, Our Views: Superintendent sends the wrong message.

I’ll set aside the issue of immigration, and address the deeper issue of the Gazette‘s reasoning on obedience to the law. Here’s what the publication contends:

We’re certainly willing to concede problems with current immigration law, but we cannot support breaking laws we don’t like. That’s not how our democracy works.

Under this view, the law – indeed any law passed with a majority in its community – must be obeyed. There’s no room for civil disobedience here, so Parks should have stayed at the back of the bus, and King should not have marched in communities where a majority insisted against marches.

The Gazette may truly believe this, of course: that one must live with majoritarian rule, no matter how unjust, with no measures of civil disobedience. There’s something selfish, however, about men who (presumably) would claim a right of their forefathers to use military means to secure independence from a British majority who would now deny to living residents on this continent the right even to use the peaceful measures of civil disobedience.

It’s worth observing that the editorialist doesn’t confine the paper’s view to immigration only, but to all political and legal matters without qualification (“we cannot support breaking laws we don’t like”). That the paper ties support of the law not to justice but to the rule of the whole population begs the question of how the Gazette would object – if at all – to majority rule by legislation in places that oppress political, ethnic, or religious minorities. Shh, hush, hush: you mustn’t make a fuss, it just won’t do!

My forefathers fought in support of the Revolution centuries ago to establish the American Republic, and my family today recognizes a natural right of civil disobedience within the Republic for people, regardless of race, ethnicity, religion, or gender.

I’ve written before that most local publications are useful now not in themselves, but for what they tell about how local insiders think (however poorly) about political or social issues. The Gazette’s editorial is one more example of how shallow that thinking truly is.

The Enduring Sadness of Walworth County

“ELKHORN—A woman who son was shot and killed by a Walworth County sheriff’s deputy in 2012 has settled her lawsuit against the county and deputy for $1.1 million.

Nancy Brown, mother of 22-year-old John Brown, filed suit in U.S. District Court in Milwaukee in May 2013 alleging Deputy Wayne Blanchard used excessive force when he shot her son a year earlier at her town of Lyons home, according to court documents.

She had called police because her bipolar son was suicidal and had locked himself in his room with a knife, according to the complaint she filed.

The settlement, signed Jan. 23, brings the case to a close with the county and Blanchard denying any misconduct, according to a copy of the settlement document obtained by The Gazette.

The payment “is being made for the sole purpose of avoiding the substantial expense of further litigation,” the settlement states.

The settlement will be paid by the county’s insurer, Wisconsin Municipal Mutual Insurance, County Administrator Dave Bretl said Monday.

The shooting is among seven fatal shootings by law enforcement in Walworth County since 2010….

Phil Koss, the district attorney at the time of the shooting, said Blanchard’s actions were justified as self-defense.

[Plaintiff’s attorney Antonio] Romanucci said he and Brown were glad the legal matter was resolved.

“We’re very pleased with the conclusion of this matter, and that we were able to avoid trial with a very substantial settlement,” he said.”

Via Walworth County settles fatal shooting lawsuit for $1.1 million @ Janesville Gazette.

See, also Thursday shooting is eighth by Walworth County law enforcement since 2010 (“The incident [on 2.2.17 in which twenty-six year old Kris Kristl was shot to death] was the eighth shooting–seven of them fatal–by law enforcement in Walworth County since 2010 and the third in 13 months”).

A Grand Coalition Forms

Conservative Jennifer Rubin describes, in E Pluribus Unum vs. Trump, both the building coalition against Trump and the powerful nature of that coalition.

She’s right that what seemed unlikely a few weeks ago is real now:

Just a couple of weeks ago, critics of post-inaugural protesters argued the anti-President Trump movement lacked coherence. Too many small, identity-politics issues, the marcher-watching pundits sniffed. Well, as we imagined, Trump has provided the unifying theme and emotional inspiration, one that can galvanize Americans from many walks of life and political persuasions.

That coalition has more than numbers behind it. Rubin sees that those in opposition to Trump, wherever they may stand ideologically, are capable, talented, and accomplished:

Just as Trump forged his coalition with a nationalist, xenophobic message, opponents have now found their common cause — protecting America as a tolerant, dynamic place that derives real benefits from — and in some instances cannot operate without — international talent, markets and travel. Productive, innovative and modern Americans now have a common cause. Regardless of ideological differences on a host of issues, they now see defense of the international liberal (small “l”) ideal as critical to the country’s economic, political and psychological health. They do not want to be dragged back to the 1950s (as if such a thing were possible) or lose talent and capital that will go elsewhere if the United States turns inward.

Where does this leave us? Rubin concludes:

A wide and deep coalition of students, teachers, scientists, high-tech and industrial workers and CEOs, state and local leaders, religious leaders and Americans of all political stripes now has its message and calling: America is great because it is free, welcoming, dynamic, generous, exerts leadership in the world and has institutions (e.g., an independent judiciary, a free press) that promote inclusion and success (however we define it). If anti-Trump Americans aim to reinforce those qualities and the institutions that promote them, then the know-nothing populists and xenophobic characters who occupy the White House will not destroy what makes America great.

See, also, from Javier Corrales, Five Reasons the Opposition Is in Good Shape to Fight Trump (“The Opposition is Not Confused…The Opposition is Not Demoralized…The Opposition is Not Fragmented…The Opposition is Not Alone…The Opposition Won’t Be Blamed.”)

There is a long road ahead, and there will be significant setbacks, but this campaign is politically existential, and there will be no relent.

David Frum Asks: Should a Patriotic American Work for Donald Trump?

Conservative David Frum (with whom a libertarian would have many differences) yet asks and answers rightly the question, Should a Patriotic American Work for Donald Trump?

Frum draws a distinction between personal service to Trump and government positions that are removed from the president:

A law-abiding person will want to stay as far as possible from the personal service of President Trump. As demonstrated by the sad example of Press Secretary Sean Spicer spouting glaring lies on his first day on the job, this president will demand that his aides do improper things—and the low standards of integrity in Trump’s entourage create a culture of conformity to those demands.

After considering service at different levels within the government, Frum concludes with two questions for a potential applicant. They’re both important, but it’s the second one of the two that’s truly telling (my emphasis):

So maybe the very first thing to consider, if the invitation comes, is this: How well do you know yourself? How sure are you that you indeed would say no [to injustices]?

And then humbly consider this second troubling question: If the Trump administration were as convinced as you are that you would do the right thing—would they have asked you in the first place?

It’s tragically plain: what Trump expects of others a just man or woman would never do.

Principled Conservatives Organize Against Trump

One needn’t be a conservative to admire the efforts of thoughtful conservatives to organize against Trump.  Evan McMullin and Mindy Flynn have now launched Stand Up Republic to resist the Trump agenda from a conservative vantage. Jennifer Rubin reports on this in Evan McMullin makes a splash by going after Trump and Putin. Above, I’ve a video accompanying the launch of their 501(c)(4) organization. (It’s designed to appeal directly to conservatives who rightly find Trump’s authoritarianism objectionable.)

Rubin quotes McMullin on Trump’s use of lies:

“Undermining truth is a typical authoritarian tactic. It is incredibly dangerous,” McMullin explains. If truth is up for debate, then leaders “cannot be held accountable.” He continues, “Accountability depends on Americans’ ability to know the truth. Undermining truth is a way to undermine other sources of information. If they’ve done that, they can provide their own narrative.” Welcome to the era of Trump, and the response it is evoking. “We never thought we’d be talking about this in America,” he says with the same incredulity many are expressing about Trump’s attachment to easily disproved lies.

Gaps on many issues between conservatives, liberals, and libertarians (as I am) probably are as Rubin notes ‘unbridgeable,’ but McMullin’s more general critique of Trump is, and will be, welcome. She writes of McMullin’s insight on this point:

While he is conservative, McMullin has confidence that his message will have resonance on both sides of the aisle. “We saw this very interesting thing. Most of our support in the campaign was from constitutional conservatives,” he tells me. “Since the election we have gotten a ton of people joining from the left. They came because we are standing up for the Constitution.” Despite real, unbridgeable differences on policy issues, he says, “We see an existing common ground to defend these [democratic] institutions. It’s organic. We don’t have to compromise anything.”

We’ve likely a long and hard path before us, with more than a few setbacks along the way. A grand coalition will serve well for all of us who share a common commitment in opposition & resistance.

Distillation for a Resistance (First Edition)

We’re early in this new political era, with a long time ahead of us, and there’s a need to get a sense of one’s bearings. (The sound way to approach the new politics that has overcome America through the three-thousand-year traditional of liberty to be found in many places, the Online Library of Liberty being only one. But that’s the reading and study of a lifetime; there are essays contemporary to us that are both useful and readily distilled.)

These recent essays and posts consider, or a useful to understand, the incipient authoritarianism of America’s next administration. They are a good basis for a beginning, for a distillation of one’s thinking.

Some recent essays for consideration:

Gingrich’s Defense of a Self-Pardoning Administration: From Bad (12.19) to Much Worse (12.21)

On the Diane Rehm Show of 12.19.16, former Speaker of the House Gingrich offered that a Trump Administration could simply pardon its own advisors to remove those advisors’ unlawful conflicts of interest:

I think in the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon. I mean, it is a totally open power, and he could simply say look, I want them to be my advisors, I pardon them if anybody finds them to have behaved against the rules, period. And technically under the Constitution he has that level of authority.

An administration like this would be – not merely technically, but in fact – a lawless one (where law was used to negate the demands of the law).

Two days later, Gingrich repeated his assertion that a president could act this way (revealing it as a trial balloon of sorts, “I’m not saying he should. I’m not saying he will’):

The Constitution gives the president of the United States an extraordinarily wide grant of authority to use the power of the pardon. I’m not saying he should. I’m not saying he will. It also allows a president in a national security moment to say to somebody, “Go do X,” even if it’s technically against the law, and, “Here’s your pardon because I am ordering you as commander-in-chief to go do this.”

Under this reading of the Constitution, what couldn’t a commander-in-chief do, in the name of national security?  The answer is that there is nothing he could not do, or (affirmatively formulated) that he could do anything and thereafter pardon those responsible.

Note also the change in circumstances on which Gingrich grounds his remarks: on 12.19 he’s talking about conflicts of interest within an administration, but by 12.21 he’s discussing use of state power under a claim of national security. Perhaps Gingrich thinks the change in circumstances limits the scope of how a president might use the pardon power, but it fact his later example actually expands dramatically the power of the chief executive.

The 12.19 example’s use of pardons might involve wrongful but non-violent business conflicts; the 12.21 example’s use of pardons would exonerate the use of violent force (whether used abroad or domestically) of any possible magnitude against supposed national enemies.

Gingrich’s new second formulation is worse than his first: any location, any amount of force, thereafter subject to pardon by the president of the United States.

Declaration Over Pledge

When I was a child, we would – as students and politicians do today – recite the Pledge of Allegiance. It sticks in my memory, and so it’s easy to type its words without looking them up: “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”

Among those thirty-one words, there’s mention of liberty, but not so much, so vividly, as the first thirty-six words that declared to all the world America’s deepest, founding principles:

We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Someday, a time that will be a better day, I believe that we will wisely begin our affairs with a declaration over a pledge.

The Work of the Next Several Years 

Charles Blow writes of the work ahead for those many citizens who now find themselves compelled to defend their rights:

I fully understand that elevated outrage is hard to maintain. It’s exhausting.

But the alternative is surrender to national nihilism and the welcoming of woe.

The next four years could be epochal years in the history of this country. They could test the limits of presidential power and the public’s passivity.

I happen to believe that history will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!

Via Donald Trump, This Is Not Normal! – The New York Times.

One cannot say that this will be the work only of the next few years, knowing that often a few years stretch into several. There will be some moments of weariness; they will prove nothing as against the vigor that comes from being in the right.

Republicanism Without Principle

Writing at Commentary, Noah Rothman has a short, but powerfully insightful, post entitled Republicanism without Principle.  The essay is, immediately, about Trump and the Republican party, but it applies as nicely to republicanism as a form of government under the pressure of radical populism.  (It’s worth noting that Commentary is a conservative publication; one finds some of the strongest critiques of Trump from steadfast, free-market conservatives.)

Rothman observes the absence of ideology in Trump:

The fatal conceit of any populist movement is that it is non-ideological. It is entirely practical, its advocates insist. It has no use for theoreticians and philosophers. After all, what have they ever produced? The urgency of the present crisis demands of us the resolve to use every tool in the toolbox. What crisis, you ask? And what tools? The questions alone betray a suspicious lack of revolutionary consciousness. They mark the incredulous inquisitor as unfit to share the fruits of the new enlightenment….

Rothman rightly sees the danger – to liberty, to safety, to well-being – in such movements:

A nihilistic detachment from ideology is also the abandonment of principle, and that is a dangerous condition in leaders vested with the kind of awesome power that American presidents enjoy. The ideology that informs principle serves as a check on that power. Pragmatism is its own philosophy, one which justifies every manner of behavior with little regard for its morality or long-term consequences….

If principle grounded in an intellectual framework comes to be seen as an impediment to progress, any manner of remedy to that condition is soon justified in the populist mind. And pragmatism necessitates the kind of ugly remedies that principle often proscribes….

Here we now are, in America.  There’s more to Rothman’s essay that I’d easily recommend, about the views of the clique surrounding Trump.  (They are, to be sure, men who would set aside concern for any particular meal or view for the sake of a place at the table and a window seat.)

Rothman’s success, here, however, is more universal: a concise description of government without ideologically principled limitations.

Answer of Telfer and Edmonds to Former Coach Fader’s Federal Lawsuit

local

In August, Timothy Fader, the former wrestling coach at UW-Whitewater, filed a federal lawsuit against former chancellor Richard Telfer and then-Athletic Director Amy Edmonds (she has since been demoted), alleging defamation & constructive termination stemming from a dismissal because Fader reported an alleged sexual assault committed by a recruit directly to Whitewater police rather than a campus supervisor.  See, Former Coach Fader Files Federal Lawsuit Against UW-Whitewater Officials.

Although the complaint names Telfer and Edmonds in an individual capacity, both are receiving a defense in this civil matter with state resources (and so at taxpayers’ expense).

Whitewater is a city with a median household income of $30,218, where 36.7% of all residents, 15.2% of all families, and 18.6% of all children live below the poverty level.  Telfer’s last publicly-paid salary before retirement was a reported $212,600.

I’ve promised to follow the case, and immediately below is a copy Telfer and Edmonds’s answer and Fader’s complaint.

Answer:

Download (PDF, 110KB)

Complaint:

Download (PDF, 6.78MB)

Trump Surrogate Defends Precedent of Internment Camps

Carl Higbie, a Trump surrogate, while speaking to Megyn Kelly on Fox News suggested the internment of the Japanese during the Second World War as a precedent for a registry of Muslim immigrants to America. Kelly rightly rejected the precedent, as the internment of Japanese Americans during the Second World War and the Korematsu decision upholding that internment have been considered – at least until recently, it seems – among the worst civil liberties violations of that era.

What was unmentioned only weeks ago is now part of our political discussion; what is part of our political discussion now may yet become policy in the new administration.

Getting Protest Hashtags (#NotMyPresident) Half Right

Columnist Paula Dvorak, writing at the Washington Post, contends that saying “saying #notmypresident is the same as saying #notmyconstitution or #notmycountry or #notmyAmerica.” See, Stop protesting democracy. Saying #notmypresident is the same as saying #notmyconstitution.

Dvorak is only right about the first two hashtag phrases – she overreaches on the others. It’s true that #notmypresident is like saying #notmyconstitution, as the first depends on the constitutional order of the second.  That’s the reason that I have not, and will not, use #notmypresident: Trump was elected lawfully the 45th president of the United States on November 8, 2016.  Defending the constitutional order is a worthy defense (and a needful defense as Trump is likely to threaten constitutional norms many times while in office).  That defense begins with a fair acknowledgment of who has been elected.

Dvorak’s wrong, however, to think that #notmycountry or #notmyAmerica are somehow impermissible: those terms describe what someone thinks of the society more broadly, apart from a legal or political understanding.

She’s also wrong to think protests against Trump are undemocratic.  In fact, they’re democratic both broadly and narrowly.  Broadly, one should be able to protest lawfully as one wishes.  Narrowly, Trump wasn’t elected by a majority of voters, or even a plurality of them.  A plurality went to Clinton, and a majority went to all the alternatives to Trump.  If one thinks that democracy – rule of the demos – is what should matter, then one would be protesting for democracy by protesting against Trump.

One may accurately say that Trump’s election was constitutionally permissible at the expense of both the majority’s wishes and those of a plurality.  Lawful, to be sure, but by design with a limitation on majoritarian wishes.

This might all be a mere exercise in terms, were the consequences not so large: hundreds of millions, across a vast continent.  Define legitimate protest as narrowly as Dvorak does (so that it’s somehow out of bounds to say #notmycountry or #notmyAmerica) and one denies those millions something more meaningful than a single, lawful election’s result.

Kevin Drum on Trump and the End of Reconstruction 

Blogging at Mother Jones, Kevin Drum – like many of us, of whatever politics – seems uncertain about the consequences of a Trump Administration.  (In fairness, much has happened in a short time, and it’s hard to make sense of it all.)

Still, Drum’s thinking has shifted significantly over the last few days, in ways he no doubt sees.  His 11.9 day-after post, Things We Can Count on In the Next Two Years belies his 11.10 post, The United States Is Not About to Spiral Into Fascism and Tryanny

Two days after the election, Drum writes to reassure, contending that Trump will be no different, no worse, than 

say, Ted Cruz or Marco Rubio would be. Beyond that, though, he’s less conservative on the policy front. The reason Trump is uniquely bad is mostly symbolic: he’s willfully ignorant; he’s vindictive; he’s a demagogue willing to appeal loudly and proudly to racial animus; and he has the attention span of a small child. He’d be an embarrassment to any country, let alone the most powerful country in the world.

Isn’t that bad enough? There’s no need to pretend we’re about to spiral into a fascist nightmare or a financial collapse. We have not embraced tyranny. The United States is a very big battleship, even for Donald Trump.

One day earlier (that is, one day after the election), Drum sees a different prospect for America under Trump:

Since I have the Reconstruction era on my mind right now, it’s hard to avoid the obvious comparison. Reconstruction lasted about eight years, and then was dismantled almost completely. Barack Obama’s presidency lasted eight years and will now be dismantled almost completely. I will withhold my opinion for now on the obvious reason for this similarity.

There lies Drum’s – and our – problem. If a Trump era is anything like the end of Reconstruction was for millions of black Americans at that time, then there is every reason to be extremely concerned. Generations – indeed, during roughly a century of history – went by before millions received the rights the Constitution granted them.

There’s no need to belabor a point that Drum knows, and about which he is sympathetic. The problem for this country is that a politics like the end of Reconstruction was for blacks would be devastating for millions our fellow citizens. When one reaches the need for an analogy between our time and the decades after 1877, one has already arrived at a moment of crisis for huge numbers.

So, is Drum’s initial concern (by way analogy) on 11.9 justified, or is a Trump Administration likely to be little different from how a Cruz or Rubio Administration might have been (as Drum wrote on 11.10)?

Few during these last months thought that Trump, Cruz, and Rubio were much alike; there’s no reason to think they were. A populist politics of Trump’s kind will push as far as it can, making Drum’s initial concerns more probable than his subsequent reassurances.