This past week was a major sine wave; we had some big wins but we also had some really rough sailing. (Sailing…wave…see what I did there?). The news is still coming in at a rocket-fueled rate, so who only knows where we’ll be this time next week. For now, the Russia section stays in place, though I’m broadening it to talk about Constitutional issues generally, because that doesn’t seem to be slowing down much (and we now have at least three different potential Constitutional crises in play).
Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week also contains multiple headlines outside my area as a legal generalist — still a lawyer, not a spy! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!
Constitutional Crisis Contenders:
It’s starting to get legitimately hard to keep track of all the various unconstitutional things happening, so this new section is probably here to stay. Your handy-dandy neighborhood legal generalist turned announcer is here for you — let me just get my megaphone…
Okay, are you ready? Yeah, me neither, but here we go. In the first corner: The Russia Collusion Investigation! Come for the sketchy backdoor dealings, stay for Flynn’s likely flight from the country!
- I Can See Russia From My Backdoor Channel.* The biggest Russia-related headline this week is that Jared Kushner is indeed the Person of Interest being studied, and for good reason as it turns out. After the press confirmed this midweek, we learned the reason: he apparently reached out to Kislyak in December about establishing a secret communications channel between the transition team and Russia. None of this is direct evidence of collusion during the 2016 campaign, but needless to say it’s pretty far from normal for a White House adviser to do this, and it’s also part of a larger pattern of communication between Russia and Trump’s campaign advisers. The White House is not concerned by any of this, of course.
- Ally-Enemy Topsy-Turvy.* Perhaps not strictly Russia-related, but the United States is slowly finding our allies and enemies swapping sides, as Trump cozies up to various dictators and our traditional allies all back away slowly. The biggest headline on this front was that Trump revealed the location of U.S. submarines in his call to Philippine President Rodrigo Duterte, as well as praising the Philippines for its extrajudicial killing of drug suspects. On the other side of the coin, German Chancellor Angela Merkel told a German crowd that she considers the United States unreliable, in large part due to Trump’s erratic behavior regarding NATO. With the U.S. publicly backing countries like Russia — and refusing to publicly back countries like Germany — I can’t say I really blame her.
- Former CIA Chief Contended Collusion.* Former CIA Director John Brennan testified that he was concerned about Russian collusion in the months leading up to the election, and personally warned the Russian intelligence community not to go there. Brennan stated that there was a series of suspicious contacts with aides which might have been benign, but might have reflected compromised individuals (and contradict Trump’s account of his campaign’s behavior).
- Flynn Invokes the Fifth (Again). Flynn tried to invoke the Fifth Amendment in response to a subpoena for documents this week, for real this time (as opposed to last week, when he just announced that he planned to do so). His response comes just as new evidence surfaces suggesting that he took direct compensation from Russia in 2015. Now the Senate Intelligence Committee gets to decide if they want to let him (or if they plan to hold him in contempt). Flynn, meanwhile, is likely thinking “should have given me immunity while you had the chance” from a beach somewhere right now. Probably in Turkey, with the way this whole investigation has been going.
In the second corner: Remember the Emoluments Clause? Still a thing, at least on Constitutional paper!
- Oh, That Pesky Constitution. The by-now-traditional weekly “I can’t believe I’m not making this up” award goes to the Trump Organization announcing that it’s not going to bother to comply with the Emoluments Clause of the Constitution. Specifically, the organization noted that compliance “is impractical” and “would impede upon personal privacy and diminish the guest experience of our brand.” Unsurprisingly, Elijah Cummings (ranking Democratic member of the House Oversight Committee) shot back a very angry three-page letter explaining how and why this was unacceptable. The legal dream team suing Trump over this issue, meanwhile, has probably already mailed Cummings a fruit basket and a subpoena.
And in the third corner, because technically a ring has four of them: Reigning champion Free Press!
Which the first two contenders are joining forces to beat down; ouch, that’s gotta hurt. Here’s hoping the First Amendment team can tag in partner Judicial Enforcement before it’s too late!
- Montana Candidate Body-Slams a Reporter… Greg Gianforte, the Republican candidate for House rep from Montana, apparently body-slammed Guardian reporter Ben Jacobs in response to ordinary questioning the day before the election. An eyewitness account from a Fox News associate describes Gianforte as “grab[bing] Jacobs by the neck with both hands and slam[ming] him into the ground behind him.” Gianforte was charged with petty misdemeanor assault but not removed from the ballot or otherwise censured (though Paul Ryan did say that he should apologize). The light charge may be related to the relevant sheriff’s campaign contributions in March.
- …and Gets Elected The Next Day Anyway. Gianforte then went on to win the special election the next day. This may be partially attributed to the number of absentee ballots already cast when the altercation occurred, especially because three local daily papers withdrew their endorsement of him. Unfortunately, it also reflects Ryan’s decision not to censure him and the growing acceptability of violence towards the press.
Your “Normal” Weird:
- Official Word on Haitian TPS. The Department of Homeland Security announced this week that it plans to extend Haitian temporary protected status — but only until until January 2018. This six-month extension is considerably shorter than the customary eighteen months, though it does give Haitian families — some of whom have been living here in the United States for seven years — more time to plan. The move is probably intended to be a compromise between letting the status expire outright and extending it through the normal process. Either way, it’s an odd move likely to leave literally everyone displeased, as is the way of compromises.
- Poverty State of Mind. Ben Carson continues to be a walking font of bad quotes and no housing experience, this time announcing that “poverty is a state of mind” that people can overcome “in a little while” if they have the right mindset. Needless to say, people were less than impressed by this opinion; my favorite is the person who wants to know if they can pay their rent with the power of positive thinking. (Also, though Carson’s statement was laughably, painfully asinine, I do want to make an important subtext into text here: Simply rising to the top of the waiting list to access the public housing offered by Carson’s department frequently takes several years. It is irresponsible and concerning in the extreme to hear the director of the program publicly deny that reality, and it doesn’t really matter whether he honestly believes what he is saying — his words belie a fundamental lack of concern and empathy for his department’s recipients either way.)
- Who Wants to Be an FBI Director? Apparently not many people, if the list of candidates withdrawing from consideration the position is any indication. Most notably, Joe Lieberman and Richard McFeely withdrew from consideration this week, despite being among the four candidates to interview at the White House. This leaves only two interviewed candidates in the running from an original list of about fourteen — acting director Andrew McCabe and former Oklahoma governor Frank Keating. The withdrawals may put former Republican Rep Mike Rogers back on the list, since he’s apparently popular with the FBI, if Trump doesn’t want to appoint McCabe or Keating; we’ll have to see what happens from here. At any rate, having six people drop out from consideration on a position this high-up in government is incredibly bizarre, and speaks to how little people now want to work with this administration.
- DAPL Pipes Already Leaking. Remember how the Standing Rock tribe members and supporters were concerned that oil might leak into their water supply if the Dakota Access Pipeline project were permitted to go through? Turns out the project has already sprung three leaks in March and April despite not yet being fully operational. The North Dakota Environment Health Chief indicated that the Health Department doesn’t typically notify the public unless the leak spills more than 150 barrels, which is probably why these three leaks (totaling about four and a half barrels, or 188 gallons) are only getting reported now. The federal court case regarding the pipeline is still ongoing, and hopefully will consider these developments along with any others that occur.
- CBO Report Card. The Congressional Budget Office released its report on the American Health Care Act, and boy howdy is this bill just as terrible as we expected. The report estimates that all told, twenty-three million more people would be uninsured in a decade — only one million fewer than under the previous plan, which was rejected by more moderate Republicans as too extreme. The report also estimates that about fourteen million people would lose their insurance by next year. Even Resident Senate Majority Leader Mitch McConnell says that he doesn’t know how to get this bill passed in the Senate, in part because this report is so bad. As always, Consumers for Affordable Health Care has an excellent summary of the report highlights, and the Center for American Progress has tracked CBO-derived coverage losses by state.
- Trump’s Bonkers, Heartless Budget Proposal. The Trump administration released a budget proposal this week that dramatically reshapes government spending and cuts funding for most domestic departments, increasing funds for just the Department of Homeland Security, Department of Defense, and Department of Veteran Affairs. It manages to be both completely heartless and utterly incompetent at the same time, which to be fair is basically par for the course for this administration. The proposed budget hits safety net programs the hardest, slashing funding for lots of programs providing insurance assistance, nutritional assistance, and cash benefits — a move which hurts veterans despite increased spending for their department. But also, economists are having a field day because the budget wildly overestimates likely economic growth in the coming year and double-counts $2 trillion in tax cuts. Even more incredibly, the White House is insisting they double-counted on purpose and they “stand by the numbers.” I… guess they enjoy having proposals rejected by Congress? I don’t know, I got nothin’.
- Ariana Grande Concert Nightmare. A suicide bomber attacked an Ariana Grande concert in Manchester, killing 22 people and injuring over a hundred more (many of them children, which are the pop star’s main fan demographic). The Prime Minister raised the terrorism threat level in the UK for the first time in over a decade, and reports suggest instances of Islamophobia have risen as well. This is all particularly unfortunate because a Muslim community worker approached authorities about the bomber five years ago, in response to some statements he made about suicide bombing.
- Further White Supremacy Violence. The stunning news coming out of Portland, Oregon is that three white men were stabbed on a train for interfering with targeted harassment of two teenage girls. Two of the three men died of injuries, literally giving their lives for an expression of allyship that should have been routine. The sole survivor has a Go Fund Me Page for his medical bills, illustrating basically everything that’s wrong with America in a single link; the families of the two deceased also have one for funeral expenses. (The teenage girls, by the way, were able to get away from their assailant, though I’m sure it was a deeply scarring experience for them.) By all accounts, the victims didn’t know each other, and had very little in common other than a desire to see a white supremacist stop harassing teenagers. These deaths are in addition to last week’s murder of Richard W. Collins III (a black grad stabbed on a Baltimore street after refusing to ‘step left’), the March murder of Timothy Caughman (a black man who was on the wrong New York City street corner at the wrong time), and the February shooting of Srinivas Kuchibhotla, Alok Madasani, and Ian Grillot (two men of Indian descent in Kansas enjoying a pint in public, plus a white guy who intervened in the shooting). All told, that’s eight grievous supremacist attacks and five fatalities that I’ve personally tracked in the past few months.
- Voting Rights Win. The Supreme Court published a really important opinion on voting rights this week, affirming the North Carolina appeals court’s view of illegal gerrymandering in two districts 5–3 (with Gorsuch, who was not yet a justice during oral argument, recused). The court held that racially motivated redistricting is unconstitutional even when those districts also reflect political party affiliations, and rejected the government’s ridiculous argument that the Voting Rights Act of 1965 required racially motivated redistricting. Basically, the court said that race can’t be the strongest consideration in redistricting, and it also can’t be used as a proxy for political affiliation. The case potentially paves the way for more robust voting rights protections by linking racial discrimination to party affiliation, especially because redistricting needs to be done for 2020. Texas, you’re on notice now.
- Travel Ban Still Illegal. The fourth circuit upheld an injunction put in place on the travel ban by a federal district court this week, leaving the stay on enforcement in effect. The opinion is very long — about 200 pages, all told — but it focuses primarily on the Establishment Clause in its substantive reasoning, saying the Executive Order “drips with religious intolerance, animus, and discrimination” and the plaintiffs are likely to succeed on the merits of their constitutional challenge. Much like earlier court cases, the fourth circuit case focuses on the extensive public statements made by the President and his advisers to determine a bad faith intent to discriminate against Muslim people in both executive orders. Sessions has indicated that he plans to appeal the order to the Supreme Court.
- Modest Sanctuary City Win. Sessions issued a memo finally defining just what “sanctuary jurisdiction” actually means, and backing off of previous threats to cut funding in the process. The memo was likely in response to a recent federal court opinion that found the order unconstitutional. The new version applies only to federal grants from the Justice Department and the Department of Homeland Security (though that still covers a lot of ground), and specifically defines sanctuary as “jurisdictions that willfully refuse to comply with [federal law requiring disclosure of legal status to federal officials].” This means that cities fighting with the federal government about whether to hold individuals on “immigration detainers” are not considered “sanctuary jurisdictions” on that basis alone. This new version will probably still be challenged in courts, because restrictions on grant funding are traditionally a legislative matter. In the meantime, we now have a definition of what compliance is actually being mandated, and many, many grant recipients can breathe a bit easier because their funding is not tied to the provision at all.
Though it may not be immediately obvious, all of these court cases are really big wins, especially the voting rights case; for now, it seems apparent that our court system is still functioning normally, and is taking steps to limit the ongoing creep of fascist infrastructure and preserve free elections and religious freedoms. It will also be very interesting to see what the current Supreme Court does with the growing body of travel ban cases.
And that’s all the news at this very moment, though I bet that will change within an hour of posting. Onward we row along…