Young Kissinger in Love and War and Tragic-Comical Nerd Pettiness

SCOTUS nominee Neil Gorsuch — and his right-wing-nerd-provocateur adoration of disturbing Kissinger quotes — reminded me of this story: “In 1940 the young Henry Kissinger, caught in a love quadrangle, drafted a letter to the object of his affections. Her name was Edith. He and his friends Oppus and Kurt admired her attractiveness and had feelings for her, the letter said. But a “solicitude for your welfare” is what prompted him to write—“to caution you against a too rash involvement into a friendship with any one of us.”
“I want to caution you against Kurt because of his wickedness, his utter disregard of any moral standards, while he is pursuing his ambitions, and against a friendship with Oppus, because of his desire to dominate you ideologically and monopolize you physically. This does not mean that a friendship with Oppus is impossible, I would only advise you not to become too fascinated by him.”
Kissinger disclaimed any selfish motive for writing, loftily quoted from Washington’s farewell address, and regretted with some bitterness Edith’s failure to read or comment on the two school book reports he had sent her. Would she please return them for his files?

The real reason the Patriots beat the Falcons?

The Patriots had a 0.4% chance of winning after being down 28-3 in the 3d quarter. Many improbable events had to transpire for the Pats to win, but one big question was why the Falcons stopped running the ball to run down the clock, especially when they only needed only a yard or two. I have not seen anyone else offer this explanation: The NFL’s best center Alex Mack, the third most important player on the Falcons, was playing on a broken leg. He was shot up with enough pain-killers to make it through the first half, but the Super Bowl is almost double the length of a regular game, and apparently you can’t use those pain killers twice in one day. The Falcons rely on Mack to call the blocking schemes, letting QB Ryan focus on calling the plays and routes. The Falcons’ mistake was being overly reliant on Mack and not having a quarterback or a backup center who could take over Mack’s blocking calls. Their other mistakes cascaded from this basic weakness in their offensive line. To the Falcons’ credit, I have not seen anyone blame Mack or his injury.

Throughout the game, the Falcons avoided running the ball up the middle (near Mack). Many of their runs for negative yards or short yards were near the center/guard. In the 2d half, the Falcons ran the ball only 9 times for 15 yards, and almost entirely off-tackle (away from Mack).

 The Pats moved their best linebacker, Dante Hightower, away from the “Mike” (middle) to the edge because, I think, they knew the Falcons could run up the middle. That move enabled the key play on defense: Hightower’s blitz from the edge that produced a strip sack and five plays later, a TD. That pass was remarkably on 3d and 1 with 8 minutes left. And yet the Falcons didn’t run. Hightower was playing the run from the edge, but when Ryan dropped back, he blitzed. It seems crazy to pass at that point in the game, unless you cannot run the ball for short yardage.

Then, needing only a field goal to seal the game with 4 minutes left from the Pats’ 23 yard line, the Falcons tried to run on 1st down. Freeman has to run to the left side (again avoiding the middle) and gets dropped for a loss. On 2d and 11, the Falcons are still in FG range, but Ryan drops back and gets sacked for a 12 yard loss. That’s mostly Ryan’s fault for taking a deep drop and a sack, but it was also Trey Flowers plowing through Mack up the middle for the sack. Then there was a critical offensive holding, as the offensive line was breaking down in the 4th quarter. 

It is amazing that Mack played at all on a broken leg. But I wonder if the blame needs to focus on an NFL culture of demanding players to play when hurt — a macho badge of courage for Mack? A fear of being considered soft? A coaching staff too stubborn to see a problem and too dismissive of player safety? 

One final point: the legend of Patriots’ comebacks has intimidated teams into playing too aggressively at the end of games and making odd play calls. The Falcons passed at the end of the game. Did they decide not to play for a field goal and an 11 point lead with 3 minutes left because they thought Brady could score twice?  The Seahawks made a similar mistake two years ago. They ran the clock down while at the 5 yard line to prevent Brady from getting the ball back with a minute left. The clock meant that the Seahawks needed to pass once in order to run four plays. They passed on 2d down from the 1, instead of running Lynch… and thus, the fateful Butler interception.

One last thought: is anyone organizing a rally or parade for the true patriots, the Pats boycotting Trump?  Marty Bennett, McCourty, Chris Long, Blount, Branch, maybe James White (the Super Bowl co-MVP)?

Is Trump Receiving “Office-Related” Emoluments?

In an earlier post, I linked to various sources on the precise meaning of the word “emolument.” The CREW lawsuit argues that it is any payment of any kind, by accepting the primary and secondary definitions of the word from that era. This approach makes sense textually. Recall the wording of the clause:

“[N]o person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Article I, Section 9, Cl. 8.  (emphasis added).

Some critics of the Emoluments litigation against Trump rely on the primary definitions for emoluments as “office-related” payments. However, the choice of the phrase “any kind whatever” points to the inclusion of secondary definitions, which are broader and apply to any kind of payment. The word “emolument” originally came from the payments to a miller for grinding grains. The Old French emolument meant “advantage, gain, benefit; income, revenue,” derived from the Latin emolumentum, which meant “profit, gain, advantage, benefit.”

A broad definition of emolument makes sense in terms of the text, the etymology, and the contemporaneous use in dictionaries and legal sources, as others have shown. It also makes sense purposively, functionally, and in terms of judicial economy. The purpose of these clauses was to avoid foreign entanglements and domestic entanglements through financial or status manipulation, to avoid corruption. A broad definition serves those purposes. When one becomes president, one is gaining great powers and prestige, which carries tremendous responsibilities. The trade off is reasonable: the gain of power requires the sacrifice of additional profits. A generous salary should be enough. Moreover, in order to avoid unnecessary litigation against a president, a bright line rule is preferable for judicial economy and political economy: no payments from any government entity of any kind.

 

These questions have never been addressed by the courts. In a thorough and thoughtful paper on SSRN, titled “The Foreign Emoluments Clause and the Chief Executive,” Andy Grewal points to Office of Legal Counsel rulings that establish a body of non-judicial legal prcedents. He argues that “emoluments” are not any kind of payment, but only an office-related payment. Even if a court were to adopt this narrower definition, would foreign payments (or state or federal payments) to Trump hotels be a violation of the Emoluments clause?

Grewal emphasizes two recent cases: Ronald Reagan received a pension from California from his service in state government, and Obama received Treasury bond interest yields. The Office of Legal Counsel concluded that neither payment violated the Domestic Emolument clause.

First, it is crucial to acknowledge the different language between the Domestic and Foreign Emoluments clauses. The Domestic clause does not contain the phrase “any kind whatever,” so perhaps a narrower definition may have been appropriate for federal or state government payments.

Second, there is a clear difference between pensions and bond yields on the one hand, and distinct market transactions for goods and services on the other. Reagan was being treated no differently than any similarly situated private citizen who had worked for California. Obama was being treated no differently than any similarly situated private citizen who had bought bonds. Reagan’s service and Obama’s bond purchase long preceded their offices in the White House. However, the payments to Trump entities, whether hotel rooms, ballroom rentals, or loans, are impossible to separate from Trump’s status as an office-holder and its powers. The exchange of goods or services and payments occurs after he takes office, so the exchange is inextricably linked to the power of the office. Perhaps a court would examine if the foreign official paid over market value to identify if there were any extra payment for the office itself.

Moreover, a purposive analysis of the clause is important. The Framers were attempting to limit both corruption and foreign entanglements. The Bank of China may have been a tenant in Trump Tower before his election, but their tenancy becomes a foreign entanglement with improper influence. The same is true for the cash flow in the holdings overseas in Turkey, etc. These are office-related emoluments in the sense that they can influence the office (or appear to influence the office), unlike treasury bond yields or pension payments.

This analysis seems unnecessarily complicated when broader bright line rules would be warranted from the constitutional text, context, purposes, and practical enforcement: all foreign payments are unconstitutional emoluments.

Polling update

The polls are moving in important ways:

1. The ACA is more popular than ever. Recent polling shows between 48% and 54% approval. Pence sounds increasingly ridiculous when he says, “America’s Obamacare nightmare is about to end.” The repeal mess has become the GOP’s nightmare.

2. A plurality (47%) of Americans say Trump has violated the Constitution, and and a majority believe he has acted unethically or illegally as president.

3. Trump’s approval ratings have sunk to 38-39%. Nate Silver and Josh Marshall offer some important caveats, but no matter what, these numbers are disastrous.

Good luck with that math, GOP. The next important numbers are 25 (as in the 25th Amendment for removing an “unable” president), 41 and 51 (the votes to filibuster — and defeat the nuclear option– of any SCOTUS nomination during a criminal investigation of the 2016 election), and 218, the number of House seats to take back a majority and control the committees that investigate this administration’s corruption.

Klass moved the ball forward: NY Atty General, tax returns, and whistleblowers 

See the new idea for Georgetown’s Greg Klass here. This path is even more direct at getting transparency than my quo warranto idea, if the state or city government has these records. If revealed, those records would open the door to more emoluments investigation and corporate dissolution/divestment.

Feb. 20th, Trump makes history!

On Presidents’ Day of all days, Monday, Feb. 20th will mark Trump’s 31st day in office, tying William Henry Harrison for the number of days serve. Harrison died on his 31st day, not because of his interminably long inauguration speech, but because D.C. was literally a swamp in 1841, and he had a fatal GI bug. (Drain THAT swamp!)

So now that Trump won’t set a record for the shortest presidency, will he pass the second shortest ever? Garfield is 2d, serving 199 days, Zachary Taylor is 3d, serving 492, and Harding served 881. I’m hoping the news about the FBI and congressional investigations will help shake up that list. Lincoln and Washington are rolling in their monuments.

No Supreme Court nomination hearings until Russia investigation complete 

There were many precedents for Presidents to appoint a Justice in the  year before a presidential election, as I’ve written before. The Senate GOP straight up lied to block Garland. Do you know what is truly unprecedented? A nomination during a criminal inquiry into a president and his campaign. Reuters reports the FBI is conducting three separate investigations into Russian financing of Trump campaign and hacking. 

Senate Dems: boycott any hearings. Filibuster.

When “the President is unable to discharge the powers and duties of his office…”: The Cabinet Math of the 25th Amendment

Section 4 of the 25th Amendment, the presidential “inability”/incapacity amendment, has never been invoked. After four weeks of the Trump administration and especially after yesterday’s press conference, it is time for a sincere conversation about how it might be invoked and its mechanics: Pence plus a majority vote of the cabinet. Which of the cabinet members might be just independent enough from the Trump/Bannon orbit to weigh Trump’s incapacities seriously? And shouldn’t the Senate Democrats — plus a handful of concerned Senate Republicans — vote on cabinet confirmations with that question in mind?

Section 4 of the 25th Amendment states:

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

My generous colleague Dean John Feerick literally wrote the book on this subject (an award-winning book). What is the conceivable path to a majority if the Trump crazy degenerates, and/or if a true crisis exposes his emotional/intellectual incapacity? I consider two factors: Is the cabinet member from inside or outside the Trump/Bannon circle? Does the cabinet member have a strong external base of support? And importantly, how much would the cabinet member approve of a Pence presidency in any event?

Here is the list of the cabinet members who have been confirmed, with my oversimplified best guess on a scale of 0 (vote “no” on inability) to 5 (vote “yes”). (I think 48% of America is already at 6 to 10, so I am already grading on a curve.)

State: Rex Tillerson. 4. Not the Trump/Bannon circle, independent base in the business world, unhappy with Trump’s immigration debacle and getting frozen out of those plans, happy with the establishment pro-business Pence.

Defense: Mattis. 5. Way outside the Trump/Bannon world, and seems to be increasingly critical of the Bannon agenda. He is the best of the Trump cabinet. Independent base in the defense world. Probably comfortable with Pence.

Treasury: Mnuchin. 0. Fahgeddeboutit. Total Trump toady.

Attorney General: Sessions. 1. The Mercury of the Trump/Bannon solar system. Small, alternately blazingly hot and ice cold, unsustainable for life as we know it, and racist. (Wait, sorry, Mercury wasn’t racist. Sorry, Mercury.) The only reason to think he is a maybe is because he was a Senator for two decades, and he is not part of the Trump business crony world. He is probably fine with Pence.

Homeland Security: Kelly. 5. The same as Mattis.

HHS: Price. 4. As a veteran Congressman, Price still has an independent base. His crusade is against the Affordable Care Act, and I can only imagine how frustrating Trump’s La La Land health care promises have been for Price. Trump makes Price’s job harder, Pence makes it easier.

Education: DeVos. 2. She is probably the closest to Pence’s fundamentalism, but she is weak, shallow, and stunningly ignorant about the world. She will follow a majority, but she won’t lead it.

Transportation: Elaine Chao. 4. She is very independent of the Trump world, and very much part of the GOP establishment (8 years as Labor Secretary under W., married to Sen. McConnell). If Trump’s insanity and unpopularity become a threat to her husband’s power as majority leaders, she will be among the first to vote yes. And a Pence presidency would play out fine in Kentucky.

Veteran Affairs: Shulkin. 5. A serious doctor from far outside the Trump world, probably Trump’s most unassailable, professional choices. He cares deeply about good management. His father was a psychologist. He knows crazy when he sees it, and I can only imagine how concerned he must be already. I want to believe he is an 8, but then I might be crazy.

UN Ambassador: Haley. 2. She was already a sharp Trump critic in the primaries. But she has presidential ambitions herself, and she is probably more worried about the Trump voters in the primaries of 2020 or 2024. And I bet she would see Pence as a threat to her immediate White House ambitions. She will only follow a majority.

OMB: Mulvaney: 3 or 4. Former Congressman, very much establishment GOP, fiscal conservative, zealous pro-lifer. He must think a Pence presidency would be preferable. An OMB head isn’t going to lead this vote, but he would jump on board in a crisis.

CIA: Pompeo. 4. I’m not a fan, but he is serious about national security and stable executive leadership. He is a Congressional veteran and a professional. In a deep crisis, he would be a “yes” vote to put country over party. This position probably doesn’t count formally in cabinet anyway.

Small Business. Linda McMahon from the WWF. 0. Not even worth an explanation.

(I believe Priebus does not count as a cabinet-level officer under the 25th amendment, so I’m not counting him, but he would be a 1. A craven hack who would only follow.)

Of the already confirmed cabinet-level nominees, I count seven out of 12 as being open to voting “yes” on incapacity. (I’m not counting Haley or DeVos, because they would only be followers).  That’s a bare majority. Every new confirmation could tip the balance, and the balance is very close:

Maybes: Zinke (Interior) and Perdue (Ag) are political veterans, a recent Congressman and a recent Governor. 3s or 4s? The media reports that Perdue is getting cold feet about serving anyway. Acosta, the new Labor pick, is a solid choice, a veteran of the DOJ and the W. administration, a reputable law school dean. He’s probably a 4. Coats (DNI) is like Pompeo, a 4 or 5.  USTR Lighthizer? A Reagan official/Skadden partner/steel industry lawyer. He is not a Trump troll, but he is not in a strong cabinet leadership position. A 3 or 4.

Zeroes: Rick Perry (Energy) is a humiliated has-been who depends on Trump entirely for getting back into power. Carson (HHS) knows crazy, and he loves it. Ross (Commerce) is a Trump crony. Those three guys are zeroes.

I’m not yet counting Pruitt, because he has serious email problems that are going to delay if not kill his confirmation. He may be too weakened to have any independent political life after Trump, so I would count him as a 1. [Update: So maybe I am the crazy one. I thought Pruitt’s record plus email legal troubles would stall him when I posted this. Four hours later, he was confirmed. But the upside is that ethics issues don’t seem to weaken Republicans within their own party! So he is not too weakened to vote “yes” on Trump being too crazy for even this Republican party. He is now a “3.”

If Pence quietly initiated a 25th Amendment process behind the scenes, are there leaders in the cabinet who might be open to agreeing?  Yes. By my count, there might be a very narrow majority, and the unconfirmed nominees also might sustain that narrow majority for the 25th amendment math.

My best guess in light of the 25th Amendment: Confirm Pompeo, Coats, and Lighthizer soon. Ask more questions quietly about Perdue, Zinke, and Acosta, but don’t delay them. Slow down the process (or block) Perry, Carson, Ross, and Pruitt.  And that’s a more likely path to stopping the insanity than impeachment.

Update: Christian Turner asks about the rest of the Amendment, the role for Congress to resolve a dispute over inability after the cabinet majority vote. Congress would need a 2/3 vote in both Houses to keep Pence over Trump.  Here is the rest of the text:

“If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

Once Pence, an establishment/solid fundamentalist Republican, and a cabinet moves on this, the political dynamics in Congress would change dramatically. Congress would have so much political cover from the cabinet, and I think once there is a majority vote in the cabinet, a few followers like Haley, DeVos, and other “2s” or “3s” in my scale would jump in to increase the cabinet vote to a two-thirds vote. Keep in mind that I am talking about a scenario where Trump’s insanity becomes more obvious and more dangerous. The word from the conservative media today (including former GOP rep. Joe Scarborough) is GOP Congressmen and Senators were “panicked” after Trump’s unhinged press conference. I’ll bet they are having some similar conversations as the one here.

 

 

 

 

 

 

 

Update: Quo Warranto

A few updates:
According to Kira Lerner at ThinkProgress, N.Y. Attorney General Eric Schneiderman’s office is telling the media that he “will review the letter” we sent on Wednesday to start quo warranto proceedings to dissolve the Trump corporation or seek other remedies against the illegal emoluments and other frauds.
Dahlia Lithwick at Slate finds the logic “persuasive.” My favorite line: “Shugerman’s approach uses a whole lot of Latin words.” My second favorite line: “This quo warranto business may feel airy and academic. But the logic behind it is persuasive, and the impacts of this legal theory could be very real.”
Emily Bazelon covered us on Slate Plus, on the Political Gabfest. (One comment: Emily says the quo warranto is a criminal proceeding. It’s civil, not criminal, and that’s important to me. I am worried about the criminalization of political disagreements, especially when there are reasonable civil measures for constitutional questions.)
Over the weekend, I will be on WNYC’s “On the Media” with Bob Garfield talking about “Stop Using the Word ‘Treason.’ We don’t need to.” (See my post below). And maybe they’ll keep a bit about emoluments and quo warranto!
My original post is here: