Is SCOTUS Putting Self-Preservation Ahead of Ruling for the Far Right?

Some recent actions by the U.S. Supreme Court must be disturbing to the ugly underbelly of the Republican Party that thought the appointment of Neil Gorsuch and Brett Kavanaugh to the Court assured them of victory on a number of issues not popular with the larger public.  Some have viewed the Court's actions as a way to preserve its popular respect and legitimacy even if some of the issues will likely come back before it in the future. How the Court rules on the Trump/Pence regime effort to add a citizenship question to the 2020 census - which is designed to cause an under count of non-citizens in mostly blue states - will be telling as to whether self-preservation remains the Courts guiding hallmark.  A column in the Washington Post looks at recent rulings that in the wake of the Virginia redistricting decision against Virginia Republicans have avoided hot button issues and punted them back to the lower courts.  Here are column excerpts:

The justices of the Supreme Court know how to keep out of trouble. That’s the takeaway from the order the court issued on Monday, sending back to the lower court a new case about another baker who wouldn’t bake a wedding cake.

The case, Klein v. Oregon Bureau of Labor and Industries, was a near-exact replica of last year’s Masterpiece Cakeshop case. Like the owner of that Colorado bakery, the husband and wife owners of Sweetcakes by Melissa in Gresham, Ore., claimed that their religion prohibited them from designing and baking a cake to be used in celebrating a same-sex marriage. To do so, the owners explained in their petition to the Supreme Court, would amount to “complicity in sin.” In fact, they said, the very reason they baked wedding cakes was to “celebrate weddings between one man and one woman.”

Like Colorado, Oregon has a public accommodations law that bars business from discriminating on the basis of sexual orientation. Acting on the complaint of a lesbian couple, the official in charge of enforcing that law imposed a $135,000 fine to be paid to the couple as “compensatory damages for emotional, mental and physical suffering.” The Oregon Court of Appeals upheld the order, and the Oregon Supreme Court refused to hear the appeal.

On Monday, instead of adding the case to their docket, the justices vacated the lower-court decision and told the Oregon Court of Appeals to reconsider the case “in light of” last June’s Masterpiece Cakeshop decision. Objectively, that disposition makes little sense. The Supreme Court didn’t actually decide the constitutional issues in Masterpiece Cakeshop. . . . The decision was, in other words, a punt. It has no “light” to shed on the Oregon dispute.

I think that what finally prevailed was an institutional instinct for self-preservation. Why re-enter this battle at this moment? Cases granted this spring will be argued in the fall, to be decided next spring with the political season at its height and the court itself under a bright election-year spotlight. The court already has plenty to do next term, with three cases granted on whether federal law protects gay and transgender people against discrimination on the job. The conflict between private conscience and public duty is age-old. The court has time to resolve it in future cases. In fact, another such case will soon be on the way to the Supreme Court. This month, the Washington State Supreme Court reinstated a ruling against a flower shop owner who, because of her “relationship with Jesus Christ,” told a gay couple, longtime customers, that she could not design a flower arrangement for their wedding. The justices had vacated that ruling and sent the case back to the state court last summer for reconsideration in light of Masterpiece Cakeshop. The state court, deeming Masterpiece Cakeshop irrelevant, reissued its original opinion almost word for word.

What I discern as the Supreme Court’s instinct for self-preservation was also on display last month in an abortion case from Indiana. The state was appealing a ruling that invalidated its law banning abortions for reasons of the race, sex or disability of the fetus, a law enacted in deliberate and flagrant violation of existing abortion precedents. The state’s appeal, Box v. Planned Parenthood of Indiana and Kentucky, went to conference an astonishing 15 times over five months. Ultimately, the court denied the appeal, noting in an unsigned opinion that because the United States Court of Appeals for the Seventh Circuit is the only court to have considered such a law, “we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

On a court deeply divided on the subject of abortion, that disposition was unanimous. . . . If I read that message correctly, we can expect the same outcome when the states that are now busy banning abortion appeal to the Supreme Court from the lower-court rulings that will inevitably strike down the new laws. (But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)

These reflections on the court’s instinct for self-preservation lead me to a final question: What to do about the census case? As the world knows, the deeply contested question of the validity of the Trump administration’s plan to ask about citizenship has become even more fraught with revelations from the computer files of a recently deceased Republican redistricting specialist, Thomas Hofeller. The documents appear to validate the conclusion reached by Federal District Judge Jesse Furman, whose ruling against the Trump administration is before the justices, that the administration’s purported good-government reason for adding the citizenship question was a pretext. The real reason, the documents indicate, was to provide a statistical basis for entrenching Republican power by disregarding noncitizens in the population counts for future redistricting.

Those plaintiffs, represented by the American Civil Liberties Union, have now asked the justices for a “limited remand” that would send the case back to the District Court “to allow exploration of where the truth lies.”

But there is another option, suggested by the plaintiffs in a final footnote to their latest brief: Just dismiss the appeal. The procedure is known as a DIG: “dismissed as improvidently granted.” The justices use it once or twice a term, usually when a case turns out, on further reflection, not to be what they thought it was when they granted it.
For the time being, it’s a reminder that the court knows how to get itself out of a tight spot when it needs to. A DIG requires no explanation. Its effect is to wipe the Supreme Court slate clean, as if the appeal had never even reached the court. A DIG here would leave Judge Furman’s opinion in place and would enable the professionals in the Census Bureau, who strongly objected to adding the citizenship question, free to go about their business counting us — all of us. If I’m right about these recent signals that the court knows how to save itself, now is the time.

The out come of the census case will be telling and clearly signal whether the Court puts its own legitimacy ahead of all else. 

The Inevitability of Impeachment

Chaos continues to reign in Washington, DC, most of it stemming from the out of control occupant of the White House who has forced portions of the federal government into shut down and roiled the stock market making it look like a roller coaster.  At some point even Congressional Republicans will likely say enough is  enough.  Therefore, a well reasoned column in the New York Times lays out an argument as to why Trump will eventually be impeached or forced to resign before the end of his term. Simply put, at some point Trump becomes too big a liability for the GOP and fears of his unwashed, knuckle dragging base will be overwhelmed by more pressing concerns for self preservation.  It is a prospect that many long for even with the specter of Pence moving to the White House - assuming Robert Mueller doesn't have the goods on him as well as Trump.  Here are column highlights:

An impeachment process against President Trump now seems inescapable. Unless the president resigns, the pressure by the public on the Democratic leaders to begin an impeachment process next year will only increase. Too many people think in terms of stasis: How things are is how they will remain. They don’t take into account that opinion moves with events.

Whether or not there’s already enough evidence to impeach Mr. Trump — I think there is — we will learn what the special counsel, Robert Mueller, has found, even if his investigation is cut short. A significant number of Republican candidates didn’t want to run with Mr. Trump in the midterms, and the results of those elections didn’t exactly strengthen his standing within his party. His political status, weak for some time, is now hurtling downhill.

The midterms were followed by new revelations in criminal investigations of once-close advisers as well as new scandals involving Mr. Trump himself. The odor of personal corruption on the president’s part — perhaps affecting his foreign policy — grew stronger. Then the events of the past several days — the president’s precipitous decision to pull American troops out of Syria, Secretary of Defense Jim Mattis’s abrupt resignation, the swoon in the stock market, the pointless shutdown of parts of the government — instilled a new sense of alarm among many Republicans.

The word “impeachment” has been thrown around with abandon. The frivolous impeachment of President Bill Clinton helped to define it as a form of political revenge. But it is far more important and serious than that: It has a critical role in the functioning of our democracy.

Impeachment was the founders’ method of holding a president accountable between elections. Determined to avoid setting up a king in all but name, they put the decision about whether a president should be allowed to continue to serve in the hands of the representatives of the people who elected him.

Lost in all the discussion about possible lawbreaking by Mr. Trump is the fact that impeachment wasn’t intended only for crimes. For example, in 1974 the House Judiciary Committee charged Richard Nixon with, among other things, abusing power by using the I.R.S. against his political enemies. The committee also held the president accountable for misdeeds by his aides and for failing to honor the oath of office’s pledge that a president must “take care that the laws be faithfully executed.”

The current presidential crisis seems to have only two possible outcomes. If Mr. Trump sees criminal charges coming at him and members of his family, he may feel trapped. This would leave him the choice of resigning or trying to fight congressional removal. But the latter is highly risky.

I don’t share the conventional view that if Mr. Trump is impeached by the House, the Republican-dominated Senate would never muster the necessary 67 votes to convict him. Stasis would decree that would be the case, but the current situation, already shifting, will have been left far behind by the time the senators face that question. Republicans who were once Mr. Trump’s firm allies have already openly criticized some of his recent actions, including his support of Saudi Arabia despite the murder of Jamal Khashoggi and his decision on Syria. They also openly deplored Mr. Mattis’s departure.

In the end the Republicans will opt for their own political survival. Almost from the outset some Senate Republicans have speculated on how long his presidency would last. Some surely noticed that his base didn’t prevail in the midterms.

But it may well not come to a vote in the Senate. Facing an assortment of unpalatable possibilities, including being indicted after he leaves office, Mr. Trump will be looking for a way out. It’s to be recalled that Mr. Nixon resigned without having been impeached or convicted. The House was clearly going to approve articles of impeachment against him, and he’d been warned by senior Republicans that his support in the Senate had collapsed. Mr. Trump could well exhibit a similar instinct for self-preservation. But like Mr. Nixon, Mr. Trump will want future legal protection.

While Mr. Trump’s case is more complex than Mr. Nixon’s, the evident dangers of keeping an out-of-control president in office might well impel politicians in both parties, not without controversy, to want to make a deal to get him out of there.

How Robert Mueller Is Working the Russiagate Case

With the media currently focused on the Roy Moore scandal - Donald Trump is likely thanking his lucky stars for the media distraction - the Russiagate investigations continue to grind along. A piece in Time by a former FBI veteran who worked under Robert Mueller looks at how Mueller is working the his investigation and how this as time passes, Mueller will likely tighten the screws and push some of the "low hanging fruit" of the Trump/Pence campaign/administration will likely begin to  turn on Trump - and hopefully Pence as well - in order to save themselves and/or negotiate lesser sentences for themselves.  The approach outlined makes complete sense and factors in human nature: if it becomes a choice of throwing Trump under the bus or going down themselves, almost everyone at some point will put themselves first.  He aptly points out that Paul Manafort will not allow himself to spend 25 years (basically the rest of his life) in prison.  Others will likewise put their interests ahead of Trump/Pence.   Here are article excerpts: 

I worked for Bob Mueller for 12 years while he was the FBI director, running counterintelligence, espionage and cybercrime investigations. What I saw recently was a classic law-enforcement response to a suspected Russian intelligence or political-influence operation. And it was classic Bob Mueller. Already, he appears to have uncovered details of a far-reaching Russian political-influence campaign.

Russian spy services use two main methods to run agents. Either they recruit people as traditional assets, where the targets know they’re working for a foreign government. Or they use unwitting agents—people targeted to exploit not just what they know, but who they know. That’s what seems to have happened here. Russian intelligence services have run political-influence operations since the beginning of time, and if you put a seasoned intelligence officer in front of a traditional, unsuspecting businessman, there’s just no match.

The Russian goal appears to have been to use members of the Trump campaign to get at the ultimate target: Donald Trump himself. If I want to spy on Trump, I don’t need or necessarily want to get directly in front of him; I will use sources, or I will use an intermediary known as a cutout. The Russian intelligence services will then dangle something the cutout wants, whether it’s sex, money, drugs or information. In this case, it was Hillary Clinton’s emails.

To uncover just how far the Russian operation got, Mueller will focus his team. He’ll go after the lower-level or lower-ranking guys like George Papadopoulos. He’ll also use the strategy of following the money. In the next weeks and months, you’ll see more indictments. You’re going to see wire fraud. You’re going to see mail fraud. You’re going to see violations of the Foreign Agents Registration Act. You’re also going to see other charges. Moving money around countries to avoid taxes and criminal prosecution are the kinds of violations we saw continuously while I was working counterintelligence and espionage investigations.

A lot of those crimes carry 20-year prison sentences or more for a single violation. Which is why so many people are going to flip and roll over and testify for Mueller. Hard-core criminals aren’t going to talk. You can tell them you’re going to put them in jail for 100 years, but they don’t care. Professional, hard-core spies are not going to talk, because the foreign country they work for is going to retaliate or potentially kill family members left behind in their country.

But when you talk about people who are used to spending nearly $1 million in three years on business suits out of a place in Cyprus, those guys are not going to do 25 years in jail. It doesn’t matter who they are going to roll over on, there’s no way Manafort is going to do 25 years in jail if he can avoid it. He can’t last.

And when the people who may be cooperating with the investigation start consensually recording conversations, it’s all over.

That’s why Bob Mueller’s going about this in the way that he is. He knows these guys are not seasoned criminals. And he knows they’re going to roll over on each other. Mark my words, it will start becoming a race to the special counsel’s office.

 I hope the auther proves to be correct.  As wonderful as it will be to see Trump go down - Pence too if the nation is lucky - it will be equally sweet to see at least some of Trump's supporters forced to realize that they voted for a traitor. 

Did Jared Kushner Throw Trump Jr. Under the Bus?

Human nature - especially when immoral and unethical individuals are involved - is such that when the issue comes down to saving one's own ass versus throwing under the bus, many will opt to save themselves and allow purported friends and even family members to go down in flames.  In his prepared statement and testimony before the Senate Intelligence Committee, Jared Kushner seemed to perhaps signaled that if it came down to him or Donald Trump, Jr., and perhaps even Der Trumpenführer himself, Kushner would look out for himself first and foremost.  Of course, given Kushner's past lies and convenient memory losses, all of Kushner's song and dance may yet to prove to be false and could backfire and lead to criminal prosecution - something he seemingly is trying desperately to avoid.   A column in the Washington Post looks at Kushner's apparent willingness to throw  Donald Trump, Jr., under the bus.  Here are excerpts:  

Presidential son-in-law Jared Kushner is set to testify before the Senate Intelligence Committee this morning, and what is striking about his extensive opening statement is the degree to which it seeks to insulate Kushner himself from any culpability or responsibility for the problematic known facts about the Russia affair — particularly the known facts that concern Donald Trump Jr.

Kushner’s statement takes exceptional care to separate him, with scalpel-like precision, from the now-notorious meeting that Trump Jr. arranged with a Russian lawyer — a meeting that Trump Jr. had been informed would furnish the Trump campaign with information about Hillary Clinton supplied by the Russian government. Here is what Kushner’s statement says about the meeting (emphasis added):
 In June 2016, my brother-in-law, Donald Trump Jr. asked if I was free to stop by a meeting on June 9 at 3:00 p.m. . . . . He eventually sent me his own email changing the time of the meeting to 4:00 p.m. That email was on top of a long back and forth that I did not read at the time. . . . . I arrived at the meeting a little late. When I got there, the person who has since been identified as a Russian attorney was talking about the issue of a ban on U.S. adoptions of Russian children. I had no idea why that topic was being raised and quickly determined that my time was not well-spent at this meeting.
 [I]n looking for a polite way to leave and get back to my work, I actually emailed an assistant from the meeting after I had been there for ten or so minutes and wrote “Can u pls call me on my cell? Need excuse to get out of meeting.” . . . . No part of the meeting I attended included anything about the campaign, there was no follow up to the meeting that I am aware of, I do not recall how many people were there (or their names), and I have no knowledge of any documents being offered or accepted. 
 It’s not entirely clear that the “long back and forth” that Kushner claims he “did not read at the time” is the email chain that Trump Jr. released, under duress, which demonstrated that the meeting was taken with the express purpose of getting information advertised as coming from the Russian government. But it seems clear that this is what he is referring to. Note that Kushner does not say one way or the other whether he had been sent this email chain before. What we do know, however, is that Kushner says he never read it. And if Kushner is to be believed, he agreed to, and showed up at, this meeting without having any idea why it was being held. This, even though Trump Jr. was quite excited about what this meeting might yield (“I love it,” Trump Jr. exulted in the email chain), and even though Trump’s then-campaign chair Paul Manafort was also present. Also note the exceptional care that went into Kushner’s characterization of the meeting. He claims he arrived just late enough to miss the incriminating part of the meeting. Trump Jr. admitted in his second statement that the Russian lawyer brought up the campaign. . . .
 Kushner’s statement does not deny outright either that the meeting did address the campaign or that any documents had been offered to the Trump camp, which the email chainappears to confirm. All it does is insulate Kushner from those facts. [W]hatever the truth turns out to be on those fronts, what Kushner’s statement does not do is contest any of the known facts about that meeting — known facts that are deeply problematic for Trump Jr. and even for Trump himself. The meeting, at a minimum, shows that Trump Jr. was eager to collude with the Russian government, which, he had been told, was trying to get his father elected president.  Kushner’s statement denies any collusion on his own part, and claims no awareness of any other collusion . . . .
 President Trump himself reportedly signed off on that initial false statement, which means the president actively participated in an effort to mislead the country about his own campaign’s eagerness to collude with Russia to help him win. Kushner’s statement offers nothing to challenge these underlying facts. It just separates him from them.