Spicer on Hitler: It’s both not as bad and also worse than you might think

I was paying more attention to other stories about tyrants killing Jews this week, so I’m just catching up now to new stories.  Folks, Spicer was not actually denying the Holocaust. Was that actually a mainstream claim?

Spicer is obviously a moron and a joke of press secretary, but he mostly was just a propagandist thinking in terms of a absurdly narrowly defined event of dropping chemical weapons on a residential area, and that’s true. Hitler did use them against Russian troops, and he obviously used them in the Holocaust, and then there’s the troubling way that Spicer so reflexively used the phrase “his own people” without thinking twice, but I don’t think Spicer ever thinks once about what he says, he just spouts talking points, spin, and lies, which is probably worse than a single independent racist thought emerging spontaneously.
However, I do think there are two other reasons that Spicer’s claim is deeply troubling.
First, Spicer’s comment reflects more than embarrassing ignorance. If you spend enough time around the Alt-Right, white nationalists, and anti-Semites, you get acculturated to Alt-Right thinking: the Alt-Right/white nationalists regularly seek to put Hitler in context and to question the conventional wisdom that Hitler is a different degree of evil, claiming that his actions were one of many wrongs in the 20th Century.  The Alt-Right trolls on-line sometimes claim that Hitler’s actions are more comparable to other 20th C. mass killings like Stalin’s, Pol Pot’s, the Chinese Cultural Revolution, and North Korea’s. I have read some of the arguments they throw around on-line: “Hitler never used chemical weapons though they were available.”  These Alt-Right sources are making a few points: that the Left/Communists are worse than conventional wisdom if you add up total numbers of deaths. But this “total number of deaths” goes hand-in-hand with Nazi sympathizers and Holocaust denier, who do explicitly revise downward the number of Jews murdered.  So my sense is this: Spicer reads and talks to more Alt-Right nuts than he might care to admit, and his unthinking claims reflect how deeply that thinking has infected the Trump staff, even if they might not be conscious of that anti-Semitic thinking. And that’s a whole different kind of disturbing.
Second, this is how Americans get themselves locked into dumb foreign policy.  Members of the George H.W. Bush administration compared Saddam Hussein to Hitler often in 1990-91, and those exaggerations were part of the drive to war and also fed the outrage on the right when Bush didn’t “finish the job.” I think George W. Bush’s motivations to go after Saddam, beyond the assassination plot against his father, were shaped by the exaggerated campaign against Saddam. Don’t get me wrong, Saddam was a very very bad guy. But comparing your enemies to Hitler tends to foreshadow badly planned wars that don’t go well.

My “bar mitzvah” theory of American history

I was quite relieved to read this NY Times story that Steve Bannon reads solid American history, summarized here. Their historical theory is that American history moves in predictable 80-year cycles of crisis and renewal, from the revolution to the Civil War to World War II to the present Trumpian moment. Totally. (And it just happens to be popular in Leninist and Alt-Right circles).

So this is my chance to share my bar mitzvah theory of American history, a turning point every 12 or 13 years (it can become a “bat mitzvah” theory after the 19th Amendment in 1920, but I’m not sure America is ready for that even today). Trust me, it ends with a progressive president, single payer  health care, and world peace by 2021.

1756-63: the Seven Years War/”French and Indian” War that leads to the Revolution.

1774-75: The Intolerable Acts and Lexington and Concord start the Revolution (1776 is so overrated).

1787: The Constitutional Convention

1800: The Jeffersonian revolution and the first-ish peaceful democratic transition in power in human history

1812-14: The War of 1812

1824: Andrew Jackson wins a plurality of the Electoral College, but Henry Clay helps JQ Adams “steal” the presidency. The beginning of the “Jacksonian revolution”?

1837: The Panic of 1837 destroys the economy, and transforms state banks and state constitutions. See my book.

1846-1850: Mexican American War to the Compromise of 1850, a turning point in slavery politics.

1861: The Civil War

1873: The Colfax massacre and the real end of Reconstruction

1886: Haymarket! May Day! Or for Admin nerds: 1887, Congress creates the ICC. See my article.

1898: The Spanish-American War on the rise of American imperialism 

1912: The election of Woodrow Wilson, ushering in a wave of progressive legislation.

I could keep going, but why not just write a crazy book about it, and see if a crazy presidential advisor will buy it?

Obstruct Gorsuch for his own obstructionism, not for plagiarism

It’s hard for me to get morally outraged about Gorsuch’s academic sloppiness when there are so many stronger reasons to oppose his nomination. I can’t say with a straight face that this changes the merits (and really, the demerits) of his nomination. I still care much more about his callous approach to judging (as I wrote about the frozen trucker case) and the likelihood of his non-mainstream views on gay marriage. His answers to Sen. Klobuchar about the special education decision — that he “was bound by precedent” — raised concerns about his legal writing and his thinking about precedent. He was overly eager to signal that he was bound by precedent (ahem, Roe?), but don’t bet on him to follow through, especially when he was not bound to add the word “merely” to water down a special education standard, when the case he was citing did not engage in enough analysis or application of the standard to justify Gorsuch’s minimizing that right. It was also an evasive answer, dodging the substance with an exaggerated claim about precedent.

His evasiveness may not be everyone’s biggest worry, but he was dramatically more evasive than recent nominees, and it establishes a better procedural reason for the procedural filibuster.  In 2005, I wrote an op-ed in the Boston Globe, and it may be more relevant for Gorsuch:

“The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.”

“But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.”


Gorsuch < Russia: Why filibustering might not be worth the cost

The breaking news is that the Democrats have 41 votes to filibuster Gorsuch. I am happy to see the Democrats finally fighting back, but I am worried that their timing and a lost opportunity.

Don’t get me wrong. I have been following the Gorsuch nomination closely, maybe too closely for my own good. I have blogged about why the Democrats should filibuster for long-term strategic reasons. (Getting rid of the filibuster could be beneficial when the Democrats are back in the White House ASAP). I also wrote about his “frozen trucker” dissent in Slate, and how it suggests that Gorsuch may be a callous ideologue. Given how he evaded questions more than even the recent round of Supreme Court nominees, we don’t have a lot to go on, but his dissertation’s signals on gay marriage and fetal personhood, the “frozen trucker” case, and other parts of his judicial record raise significant concerns that he is not a “meanstream” conservative, but that he is probably to the right of late Justice Scalia. He is not an immediate threat to Roe v. Wade (he’d be the fourth vote to overturn it, not the fifth). But my issue is the death penalty and criminal defendants’ rights, and for those isues, he is more likely the fifth vote against my biggest concerns. Under other circumstances, I would agree with voting “no,” and in the past, I have suggested that filibustering a nominee is appropriate when the nominee is too evasive: if the nominee obstructs the confirmation hearing, the Senate should obstruct the confirmation.  On top of that, Garland, Garland, Garland. Or more appropriately, Obama, Obama, Obama.

I have been going back and forth in my head about this situation, and I keep going back to the image last week of Devin Nunes in the House, with Speaker Ryan’s support, sabotaging the Russia investigation, and a few days later, Senators Warner and Burr working together to move forward. I don’t want to read too much into Senator Burr’s performance, but it was a sign that some Senate Republicans are willing to cross party lines to investigate the Trump administration. If we had seen no such signs, the Senate Democrats should have played hard ball on everything. But the question now is that, with the Senate Republicans taking a small step forward on Russia, should the Democrats keep moving forward, too?

If I could tell you that allowing a vote on Gorsuch would make one Republican Senator  more willing to support the Russia investigation? What if that Senator were the deciding vote on a key committee? And what if filibustering Gorsuch might take that opening from Senator Burr and burn it? Burr is a descendant of Aaron Burr. He has a historic opportunity to make up for his family’s legacy by being a statesman more than ambitious partisan. I’m not suggesting that the Senate Democrats should disarm unilaterally, but I hope they are willing to talk through these two parallel fights, and work out some “understandings” to move forward on both fronts. A filibuster would not just shut down Gorsuch, it would shut down the Senate — not through the “talking” filibuster, but more practically shutting down any progress.

Moreover, I’d suggest one of the reasons so many Republicans — both voters in 2016 and the Congress now — have been so cohesive and partisan is that they are focused on filling Scalia’s seat. Everyone speculated that a number of evangelical conservatives and elite conservatives would stay home in November, but they were more slightly more unified as a party than the Democrats, shockingly. One reason was the open Supreme Court seat: it didn’t matter who would be making the appointment, as long as it was not a Democrat, and especially not Hillary Clinton.  There is a chance that once the Senate Republicans get their prize, they may be slightly more willing to compromise.

I’m not sure about any of this perspective. I am often too willing to compromise and to support taking the first step in order to promote compromise. But in this case, I think the Senate Republicans were taking the first step. The Gorsuch appointment will have an enormous impact on American law for 30 years or more. But Trump’s presidency will have an impact for even longer. Restoring just a little bipartisanship now can also start to reverse a course of mutual recriminations that is destroying our country. One seat on the Supreme Court is worth a lot, but resolving this threat is worth more.






Lizza breaks the Trump/Nunes coordination on Russia

In the New Yorker, a most remarkable passage on Nunes’s coordination with the White House:

“The White House and Nunes were clearly coördinating this strategy. A few days before the hearing, Trump seemed to offer a preview of it. In an interview on Fox News, the President said that he “will be submitting things” to Nunes’s committee “very soon,” and “perhaps speaking about this next week,” adding that “you’re going to find some very interesting items coming to the forefront over the next two weeks.”

“Last Monday morning, shortly before the start of the hearing, a senior White House official told me, “You’ll see the setting of the predicate. That’s the thing to watch today.” He suggested that I read a piece in The Hill about incidental collection. The article posited that if “Trump or his advisors were speaking directly to foreign individuals who were the target of U.S. spying during the election campaign, and the intelligence agencies recorded Trump by accident, it’s plausible that those communications would have been collected and shared amongst intelligence agencies.”

“The White House clearly indicated to me that it knew Nunes would highlight this issue. “It’s backdoor surveillance where it’s not just incidental, it’s systematic,” the White House official said. “Watch Nunes today.”

“Sure enough, at last Monday’s hearing, Nunes asked in his opening statement, “Were the communications of officials or associates of any campaign subject to any kind of improper surveillance?” He continued, “The Intelligence Community has extremely strict procedures for handling information pertaining to any U.S. citizens who are subject even to incidental surveillance, and this committee wants to insure all surveillance activities have followed all relevant laws, rules, and regulations.” Nunes made it clear that Trump’s wiretapping claim was false, but he seemed intent on offering the President a fig leaf for the explosive claim. “It’s still possible that other surveillance activities were used against President Trump and his associates,” he insisted. The overwhelming majority of questions from Republicans at the hearing revolved around this issue.

“Last Tuesday evening, Nunes went to a secure National Security Council facility on the grounds of the White House and reviewed intelligence reports, with the assistance of one or more unknown officials. (Michael Isikoff, of Yahoo News, reports that one of the officials may have been Michael Ellis, a former Nunes staffer who now works at the White House. When asked by reporters today, Nunes declined to confirm or deny the report.) The following morning, without informing any other members of the House Intelligence Committee about what he had learned, Nunes went back to the White House and briefed the President on those reports. He held press conferences, one at the Capitol and one outside the West Wing, before and after his meeting with Trump.”


Trump and the Senate GOP just dumped cold water on the House health care bill

Late last night, Trump blamed Ryan for the repeal/replace failure — before it was totally dead. That’s astounding, and it doesn’t help rally House members. But the even bigger news is the Senate GOP, reported by NBC this morning: The Senate GOP leadership has tweeted that the House bill *cannot* evade a Senate filibuster, meaning that there is no way the House bill can become law. That dumps an ice bucket of cold water on every House Republican. Why would the Senate GOP announce this position this morning? They don’t want this bill to pass, because they don’t want to vote on it at all. So why would a Republican House member choose the worst option: casting a “yes” vote for a disastrous and disastrously unpopular bill, and also failing to repeal anyway? See the report:
“Does the Senate want this bill to pass?
That’s the other part of this equation. Don’t miss what Sen. John Cornyn (R-TX), the Senate’s No. 2 Republican, tweeted last night: “FYI: The ‘Byrd Rule’ is actually a law.” Translation for those unfamiliar with Senate arcana: The legislation that House Republicans are trying to pass probably don’t meet the rules that can avoid a Senate filibuster. Think about it, Cornyn is warning his House colleagues that this legislation can’t pass the Senate. And that’s precisely what Sen. Tom Cotton (R-AR) stated earlier this month: “I would say to my friends in the House of Representatives with whom I serve, ‘Do not walk the plank and vote for a bill that cannot pass the Senate and then have to face the consequences of that vote.”

Why should the Democrats filibuster Gorsuch? The endgame…

I’ve heard friends and commentators lament, “Why should we filibuster if the GOP can go nuclear and get rid of the filibuster?”  Below, I lay out one immediate benefit and then three paths, each of which justifies a filibuster.
Gorsuch is too right-wing and lacks the temperament (see my Slate piece today). For a bunch of reasons, I have been persuaded that Gorsuch is probably to the right of Scalia. He has been elusive by any standard in the hearings, but a few things emerged: He signaled to insiders that he will probably overturn Roe v. Wade, as part of the Casey balancing test for overturning precedents (Gorsuch acknowledging that it’s “a precedent” does not save it from being overturned, particularly not in the way he carefully phrased his Casey-minded answer). Corey Brettschneider has analyzed Gorsuch’s writings thoroughly and found evidence suggesting that he might find that the Constitution grants fetuses a right to life, which would lead to a national ban on abortion. Brettschneider also finds a clear indication in Gorsuch’s dissertation that he not only opposed the right to marriage equality, but he demeaned that claim, approvingly of a Scalia passage that put gay marriage in the same category of unprotected claims as bestiality and incest. 
Moreover, beyond the whole unprecedented Garland travesty, there has never been a Supreme Court appointment during a criminal investigation of a president or a presidential campaign.
Let’s first acknowledge the benefits of delaying a fifth vote to uphold Trump’s immigration order (a.k.a., “#MuslimBan”). These cases are expedited, so the case would be argued sooner than usual.
But beyond that, the endgame has three paths, all on balance reasons to filibuster:
1. The GOP goes nuclear and permanently ends the filibuster for SCOTUS. Fine. Then let’s say the rest of the Justices stay on the Court. We take back the White House and Senate in 2020, and they can no longer filibuster a liberal appointment. Or if a seat opens after 2018, maybe we have taken back the Senate and we don’t need the filibuster anymore. (I note that it is an uphill battle to take back the Senate because the Democrats have to defend so many red-state seats, but if Trump is in the mid-30s approval ratings with the same kind of “strongly disapprove” numbers we see now in the mid-40s or more, I like our chances).
2. The GOP fails to nuke, the seat remains open, but meanwhile, the FBI investigation produces an indictment of Manafort, Stone, Flynn, etc., and we have a full blown FBI investigation of the President in 6 months with subpoenas and hearings. I don’t see the GOP moderates going nuclear then, and the seat remains open for a while, maybe past the 2018 elections, maybe until 2021.
3.  The GOP fails to nuke, the seat remains open, but Trump holds off on scandal and indictments of his campaign staffers long enough to make another appointment. Maybe nominee will be less right-wing than Gorsuch. We know Gorsuch is going to be close to Scalia, and perhaps even more conservative overall in areas like abortion/fetal rights, the death penalty and jury rights. He will be a 5th vote to undermine voting rights, and many other rights, including gay marriage. Maybe another nominee will be more moderate, maybe not. Who knows? Let’s cross that bridge when we get to it. If they don’t have the votes to go nuclear for Gorsuch, then I’d guess they’d lack the votes for going nuclear for a clearly more right-wing nominee.
Some have said, “Don’t waste the filibuster now! Use it for the seat that might tip the Court on Roe v. Wade!” First of all, if not now, when? Gorsuch is the nominee now. Who knows if there will be another opening? And moreover, if you’re worried about the Senate GOP going nuclear now, why won’t they go intercontinental ballistic nuclear when they are finally getting their fifth vote to obliterate Roe?  If we don’t filibuster now, there’s not going to be a successful filibuster ever.

Trump firing U.S. Attorneys after retaining them is NOT normal

I’ve seen some expert commentators argue that it is traditional for new presidents to replace U.S. Attorneys. That’s true. But it is entirely untraditional and abnormal to fire U.S. Attorneys after retaining them and allowing them to continue in their offices.

Admittedly, it’s a bit of a gray area because Trump is so early in his term. Nevertheless, every other president made decisions about which U.S. Attorneys to retain or replace immediately in the beginning of their terms. The reason for this tradition is to have a clear marker of turnover to avoid precisely this kind of appearance of interference (or actual interference) in investigations and the administrative justice.

There is only one modern precedent for this conduct, and it is not one to emulate: George W. Bush’s dismissal of seven U.S. Attorneys in December 2006.  The Washington Post reported at the time: “Although Bush and President Bill Clinton each dismissed nearly all U.S. attorneys upon taking office, legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.” (Gonzales: ‘Mistakes Were Made’). As the story unfolded, the Bush administration had warned these U.S. Attorneys and a handful of others that they weren’t prosecuting enough voter fraud (i.e., Democratic voters) or public corruption cases (i.e., Democratic office holders).  Chris Christie, the New Jersey U.S. Attorney, and Steven Biskupic, the Wisconsin U.S. Attorney, got themselves off the firing list by following the marching orders. Biskupic’s case was particularly scandalous, as the Wisconsin prosecutor won a conviction of a Democratic officer that was later overturned and harshly criticized as baseless by federal courts. The scandal led to Alberto Gonzales’s resignation.

It certainly appears that a similar interference may have occurred on Friday. Bharara has implied as much, tweeting: “By the way, now I know what the Moreland Commission must have felt like.” The Moreland Commission was investigating corruption in New York until Governor Andrew Cuomo suddenly disbanded it. The rumor was that the commission was getting too close to Cuomo for comfort. If Bharara can back up this implication with some solid facts, hold on to your seats. Trump might not hold on to his office, if the right dominoes fall.

To start toppling dominoes with subpoenas or legal discovery, the only solutions now are 1) a special federal prosecutor (don’t expect Trump’s DOJ to allow this);  2) Congressional committee hearings (good luck); and 3) state attorneys general investigating, the most likely option politically.

ACTION: Ask NY Atty Gen to investigate and dissolve Trump Org. 800-771-7755

Now that Trump has fired US Atty Bharara, NY Atty General Eric Schneiderman has the special power and duty under NY Bus. Law 1101(a)(2) to investigate: 1) unconstitutional “Emoluments”; 2) Trump financial records; 3) Russian influence; 4) violations of Foreign Corrupt Practices Act and Iranian sanctions; 5) obstruction of justice.

CALL NY AG Helpline: 1-800-771-7755. Tweet address: @AGSchneiderman.  See Jed Shugerman at Shugerblog.com.

Trump just fired U.S. Attorney Preet Bharara this afternoon, after Trump had decided to keep Bharara on the job in January. Bharara had been very popular with Republicans for his prosecution of corrupt politicians. So why the sudden change?  When Trump asked for Bharara’s resignation yesterday, the N.Y. Times explained:

Last week, several public interest groups, including Democracy 21 and Citizens for Responsibility and Ethics in Washington, called on Preet Bharara, the United States attorney for the Southern District of New York and an aggressive prosecutor of corruption, to investigate the Trump Organization, the New York-based business through which Mr. Trump owns and controls his hotels, golf courses and other holdings. But that effort might not go far because the Department of Justice on Friday asked Mr. Bharara and 45 other United States attorneys appointed by former President Barack Obama to resign.

When Bharara refused to resign, Trump fired him. Coincidence? What was Bharara already investigating? Now that Trump will replace Bharara with his own personal crony to protect his business empire, who else can investigate?

The answer is simple: New York State Attorney General Eric Schneiderman can bring the investigation that Preet Bharara might have.  I have written before about how every state gives its attorney general the power — and the duty — to investigate corporate corruption and law-breaking with the Quo Warranto procedure. In New York, that power is written into New York law. New York’s Business Corporation Law section 1101 grants the attorney general the authority “to bring an action for the dissolution of a corporation” if:

the corporation has exceeded the authority conferred upon it by law, or has violated any provision of law whereby it has forfeited its charter, or carried on, conducted or transacted its business in a persistently fraudulent or illegal manner, or by the abuse of its powers contrary to the public policy of the state has become liable to be dissolved.

N.Y. Bus. Corp. Law § 1101(a)(2). New York courts have explained that violations of federal law are also grounds for dissolution, so Trump’s constant violations of the Emoluments Clause are grounds for this investigation and dissolution or forced divestment. In re People (Int’l Workers Order, Inc.), 199 Misc. 941, 976, 106 N.Y.S.2d 953 (N.Y. Sup. Ct. 1951).

Call, tweet, or write to Attorney General Eric Schneiderman now to get him to start this investigation to understand what Trump and his corporations are doing, how the corporation is a vehicle for foreign “emoluments,” and how these foreign entanglements are endangering the United States.  And if you live in other states, you can contact your attorney general, too.  I’ll update this blog with state-by-state action plans soon.

NY Attorney General Eric Schneiderman’s Twitter address: @AGSchneiderman

NY Attorney General’s General Helpline: 1-800-771-7755

TDD/TTY Toll Free Line: 1-800-788-9898

Mail: Office of the Attorney General
The Capitol
Albany, NY 12224-0341